The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: A Roundup of Recent Federal Court Decisions
Abusive speech, criminal rioting, and Bellamy salutes.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Granted! Vacated! Remanded! This week, SCOTUS revived IJ client Mason Murphy's retaliatory arrest claim against an officer who arrested him for walking on the wrong side of a rural road in Missouri—an offense that never results in arrest in that jurisdiction. On remand to the Eighth Circuit, Mason will now have another shot at showing that he should be able to proceed with his First Amendment retaliation claim. The GVR also means that both of the two lower court decisions to exclude allegations like Mason's (that no one else has been arrested for the same conduct) are no longer good law. (The other case of course being IJ's monumental win in Gonzalez v. Trevino in June.) Click here to learn more.
New on the Short Circuit podcast: Our annual Supreme Court preview live at UNC Law.
New on the Unpublished Opinions podcast: Short Circuit's sister podcast has its own feed and logo and everything! The latest episode dives into, inter alia, reading the cases you cite, SCOTUS special masters, riparian rights in space, and judicial namedropping.
- Back when the Pledge of Allegiance was first written in the late 19th century, it was performed with the "Bellamy salute," which fell out of favor in the mid-20th century after the Nazis adopted a similar hand gesture. But not everyone abandoned it so quickly: Kappa Gamma fraternity at Gallaudet University kept using it until the early 1990s. Following the death of George Floyd in 2020, photos resurfaced from 1989 of Kappa Gamma members using the salute, and Gallaudet's president showed the photo and described Kappa Gamma as "the face of systemic racism." The media ran with it, and some former Kappa Gamma members lost their jobs. They sued for defamation. D.C. Circuit: Calling someone racist is non-actionable opinion. Concurrence: That's what the law says, but it sucks that the university president and the media ruined these guys' careers over a 35-year-old photo.
- Campaign finance watchdog files complaint with the Federal Election Commission, alleging that a political group failed to register as a political committee. After almost 2 years went by with no action, the watchdog sued the FEC and then sought a determination that the agency's failure to act was "contrary to law." The district court agreed and gave the FEC 30 days to act. After 30 days with no apparent action, the watchdog sought and was granted approval to file a citizen lawsuit. FEC: But we did act; we voted that there was no reason to do anything else with the complaint. District court: In that case, citizen suit dismissed. Watchdog: No takesies-backsies! D.C. Circuit: Takesies-backsies are allowed.
- In "oh, whoopsie," news, New York City discovers, years into litigation and on its second trip to the Second Circuit, that it doesn't actually enforce the law plaintiffs are suing about. Second Circuit: Honestly, we'd be mad if we thought the sudden about-face was part of a cunning stratagem, but this seems like it was just workaday incompetence.
- Jersey boys meticulously plan a jewelry store robbery at the Jersey Gardens Mall in Elizabeth, N.J. It yields almost $900k in loot! During the robbery, one of them wore a Mets hat, stole a Yankees pendant, and pointed a gun at a store employee's head. Unfortunately for the merry band, their earlier careful installation of a stolen license plate on the getaway car was captured on surveillance video, the driver's fingerprints were all over the abandoned car, a cousin who is also a cop IDed the guy in the Mets hat, and a search of the Mets guy's bag turned up the Yankees pendant. He's convicted by a jury but in an attempt to mitigate his sentence claims it wasn't a "crime of violence." Third Circuit: Pointing a gun at someone's head is a crime of violence.
- In an update to the Napster-era copyright wars of your summarist's youth (not that said summarist ever violated copyrights him/herself!), major record labels sue a Texas ISP because they sent notices for years that specific customers were illegally sharing music, and the ISP didn't disconnect them. Jury finds for the labels, but ISP asserts it can't be liable for contributory infringement just for providing internet service. Fifth Circuit: It's a close call, but continuing to provide service to known repeat violators is enough to create liability. (However, deepening a circuit split, damages for infringed works should be calculated on a per-album rather than per-song basis.)
- Does an Ohio law banning "foreign nationals" from spending money to influence elections violate the First Amendment rights of lawful permanent residents? District court: Probably, and the state is preliminarily enjoined from enforcing the law against all foreign nationals. Sixth Circuit: Ohio's law serves the compelling interest of limiting the participation of non-Americans in the activities of democratic self-government. Injunction stayed. Dissent: Compelling interest? Sure. Is Ohio's law sufficiently tailored to that interest? Nah.
- If a court is considering a defendant's claim that the federal ban on domestic-violence misdemeanants possessing firearms violates the Second Amendment, it's not a good sign for him if it begins the fact section by asserting he "is a serial perpetrator of domestic violence." Thus, the Sixth Circuit upholds the law even in light of Bruen.
- OK, fine, but what about a defendant who is merely under a pending felony indictment and—get this—also raising a Batson challenge because the prosecutor struck the only Black juror? Sixth Circuit: It's an excuse for us to outline some interesting colonial history about pretrial detention. But you still lose.
- Allegation: At George Floyd protest in Detroit, police arrest and ticket a group of protesters who were blocking the street and refused orders to move to a sidewalk. They also arrest and ticket a protestor who was on the sidewalk. District court: A reasonable jury might decide he was ticketed just for being at a protest and in retaliation for his beliefs, not for any supposed infractions. Sixth Circuit (over a dissent): Meh, the ticketing officer's supervisor told him to write the ticket, and on the spectrum of blindly-following-unconstitutional-orders (which is bad) to reasonably-following-plausible-instructions (which is okay), this was more like the latter. Denial of QI reversed.
- Ninth Circuit (unpublished): Interrogate a traveler about their religious convictions once, shame on you. Interrogate travelers about their religious convictions ten times, you've got yourself an officially sanctioned pattern or practice.
- Montana healthcare providers seek to enjoin a state statute forbidding them from discriminating on the basis of vaccination status, claiming it violates the ADA, OSHA, and equal protection. District court: You win on all three! Ninth Circuit: These were facial claims and that means the law must be void in all circumstances and there's no evidence to support that. Reversed. Concurrence: Facial challenges are weird.
- After Aurora, Colo. city councilwoman criticizes the police chief, the police chief's partner, a county social worker, calls in a bogus, anonymous tip that the councilwoman is sexually abusing her minor son, triggering an investigation that the social worker then tries to have assigned to herself. Which results in criminal liability for the social worker. Tenth Circuit (unpublished): But no civil liability for social worker or the county.
- Florida affiliate of Moms for Liberty sues the Brevard County School Board, alleging that restrictions on comments at school board meetings that are "abusive," "personally directed," or "obscene" violate the First Amendment. Eleventh Circuit: "Because the first prohibition was viewpoint based, the second was both unreasonable and vague, and the application of the third was (at a minimum) unreasonable, these policies are unconstitutional."
- 2020: Florida enacts bill redefining the crime of "riot." Civil-rights groups sue, saying new definition violates First Amendment by sweeping in purely peaceful protesting at a demonstration where other people become violent. Eleventh Circuit (2023): Could the Florida Supremes let us know what this law actually means? Florida Supreme Court (2024): Someone must intend to commit or assist violent disorderly conduct to be guilty of rioting. Eleventh Circuit (2024): Phew, with that narrowing construction, the law is OK.
Qualified immunity denied! Last year, police in Marion, Kan. used bogus warrants to raid the offices of a local newspaper, the home of the newspaper owner, and the home of a city councilwoman who'd been critical of the mayor. This week, we're happy to report that a federal judge declined to shield the police chief and his officers from accountability, allowing the case against them to proceed past a motion to dismiss. The judge also ruled, however, that the (now-former) mayor cannot be held responsible for the raid that he ordered because he did not personally execute it, which we look forward to challenging on appeal. Onward! Click here to learn more.
Qualified immunity denied! In 2021, Fort Bend, Tex.'s sheriff excluded independent journalist Justin Pulliam from a press conference, claiming Pulliam was not "media." A few months later, deputies arrested Justin while he was filming their activities, falsely claiming he was "interfering"—part of a pattern of retaliation against Justin for his journalism. But now we're happy to announce that a federal judge has granted summary judgment against the sheriff and the county (final judgments on the merits) for violating Justin's rights at the press conference—and ordered a trial over the arrest. Onward! Click here to learn more.
