Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

White House press passes, Wikipedia edits, and same-sex weddings.

New on the Short Circuit podcast: We recorded an episode at our tenth anniversary show last week. Hear from Eugene Volokh and Raffi Melkonian about video dissents and one arbitration to rule them all.

• California assesses a tax on in-state hospitals that it uses to generate matching federal Medicaid funding and then distributes the funds as supplemental payments to hospitals treating Medicaid patients. The funds are supplemental, acting as a bonus to hospitals for treating the state's Medicaid patients. But wait! Out-of-state hospitals treat California Medicaid patients and can't get any of those supplemental payments. D.C. Circuit: Which is totally fine. Because it's merely a supplement after the base costs are paid (to in-state and out-of-state providers alike), it doesn't discriminate against interstate commerce. Dissent: But it violates a federal regulation that requires the state to pay for out-of-state services to the same extent it does in-state services.
• Two types of passes are available for journalists wishing to access the White House Press Area: hard pass (expedited security line, no escort needed) or day pass (daily application and escort from gate to press area). Hard passes are only available to reporters already accredited by the SCOTUS or congressional press galleries. First Amendment violation? D.C. Circuit: No. It's a reasonable and viewpoint neutral policy for accessing a nonpublic forum.
• An expelled Tar Heel alleges (among other things) that after a fellow UNC student testified against him in a Title IX hearing, he is somehow allowed to cross-examine only her attorney, not the complainant herself. Fourth Circuit: Going forward, some kind of cross-examination of witnesses must be available in Title IX proceedings at state universities, even if just by a neutral panel. For now, though, a mishmash of immunity doctrines bar the expellee's claims for damages. He might still be able to get equitable relief.
• To discourage vexatious litigation, prisoners who have filed three or more particularly weak lawsuits can't file more federal lawsuits without paying the usual filing fee, unless they're in "imminent danger of serious physical injury." Which one Virginia prisoner might be, holds the Fourth Circuit, at least when he's alleged that prison officials made him spend six hours in the cold in a dog cage, and they continue to retaliate against prisoners who complain about mistreatment.
• Thankfully, you don't see too many concurrences these days about the 13th Amendment's authorization for Congress to pass laws against slavery. But if you want to read a sad Fourth Circuit case affirming convictions under the Trafficking Victims Protection Act, which definitely covers forced labor inside the home as well as outside it, here you go.
• The caption caused your middle-aged summarist to do a double-take, but the appellant referenced in this unpublished Fourth Circuit decision is a different convicted murderer named Willie Horton.
• Texas judge refuses to perform same-sex weddings; will perform opposite-sex weddings. State Commission on Judicial Conduct says that judges should not conduct their private activities in ways that could suggest they're biased. Judge sues the Commission under the First Amendment. Fifth Circuit: But does that rule even apply to this? Question certified to the Supreme Court of Texas!
• This rather anticlimactic Fifth Circuit decision is about strip clubs. Sounds fun at first, but all you'll get is an eyeful of res judicata.
• Are the officers who arrested a journalist for asking questions of a government employee entitled to qualified immunity in the journalist's First Amendment lawsuit? District court (2020): Yes. Fifth Circuit (2021): No. Fifth Circuit (2022): Still no. Fifth Circuit (en banc, 2024): Wait, actually, yes. Supreme Court (2024): Maybe rethink that one, guys. Fifth Circuit (en banc, this week): Shan't. It's still yes.
• Any case where there's a preliminary injunction ordering the defendant to stop making edits to its opponent's Wikipedia page and to "[r]emove all images of the cartoon East Asian woman vendor from its webpages" is a case where things have gotten a little out of hand—and also, per this unpublished Fifth Circuit decision, one where the injunction violates the First Amendment.
• Texas trespass law requires property owners who want to exclude people carrying firearms from their property to say so via a big and very specific sign. Fifth Circuit (unpublished): And requiring them to put up that sign creates a plausible First Amendment injury. (Dissent: They put up the sign because they agreed with it. How is that a First Amendment problem?)
• Can faith-based organizations state a claim under RLUIPA by alleging that local land-use decisions effectively prevented them from visiting the graves of their enslaved ancestors? Fifth Circuit: Under RLUIPA and under a bunch of other stuff as well.
• Sixth Circuit: How in the world could this prison guard have been deliberately indifferent to a prisoner's medical needs when the guard didn't even work for the two days when medical attention was denied? (But as for the part where that same guard caused those injuries in the first place for seemingly no good reason? Yeah, no qualified immunity there.)
• If you loved Brown I, Brown II, Brown III, Brown IV, and Brown V, then boy has the Sixth Circuit got a treat for you.
• Iowa prisoner injures his knee. It gets worse and worse—his hip also starts to hurt and eventually his other knee goes south as well. Along the way prison staff recommend a knee brace and ibuprofen but pooh-pooh various requests for MRIs. When he finally gets the MRIs, they lead to surgery. He claims that one reason for the delay was the possibility that he might get parole, which would have obviated the prison's responsibility. District court: And there's enough evidence to make this a question of fact. To a jury! Eighth Circuit (over a dissent): Affirmed.
• One thing you'll learn from the latest new-pronouns-don't-tell-mom case, this time from the Ninth Circuit, is that identifying fundamental rights isn't like qualified immunity. So there's that.
• If you're curious about how to write jury instructions in a Hobbs Act extortion prosecution, this little ditty from the Eleventh Circuit (where a Dixie County, Fla. defense attorney successfully overturns a conviction) should satiate that desire.
• Black HOA board member complains of racist treatment by others in the HOA, including selective enforcement of HOA rules and fees, calling people of color "monkeys," and saying "bye, Felicia" to her when that is not her name. District court: The laws you're bringing up—the FHA and Sections 1981 and 1982 of the Civil Rights Act—don't even apply to these facts. Case dismissed. Eleventh Circuit: "Home ownership has long been viewed as the heart of the American Dream." Case undismissed.
• And in en banc news, the Eleventh Circuit will not reconsider its earlier decision holding that Title IX does not provide an implied right of action for sex discrimination in employment. Two judges concur in the denial, explaining that sex discrimination in employment is a matter for Title VII, while five judges dissent from denial.

IJ's first case way back in 1991 was on behalf of African-style natural hair braiders who challenged Washington, D.C.'s requirement that they get full cosmetology licenses to practice their craft. After we won that case, we took the fight nationwide, and this week New Mexico became the 37th state to exempt natural hair braiders from their cosmetology licensing regime. Learn more here.