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

Book burning, hit pieces, and marijuana's historical pedigree.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Call for papers: Scholars, next year IJ's Center for Judicial Engagement is going to celebrate and confer upon "The Other Declarations of 1776." Accordingly, we invite papers on the history, meaning, and impact of state declarations of rights from 1776. It's going to be a blast. Please send us proposals. Click here for more.

Recently, Prof. Samuel Bray opined that it would be "folly" to incorporate the Seventh Amendment's civil-jury right against the states—an argument occasioned by IJ's latest cert petition. As you might expect, we politely disagree. IJ's own Jared McClain, one of the petition's authors, has therefore penned a neutron bomb of a response.

Check out the latest episode of Unpublished Opinions, IJ's roundtable podcast. Wherein Patrick Jaicomo reflects on his recent SCOTUS argument and Anya Bidwell can't get enough of Fanny Burney.

1. Four days after Media Matters published an article reporting that Elon Musk endorsed an antisemitic conspiracy theory while Twitter was placing corporate ads next to pro-Nazi content, the Texas AG launched an investigation into Media Matters for potential deceptive trade practices and issued a sweeping demand requiring the group to produce a slew of records. MM sues in DC, alleging 1A retaliation. AG: You can't sue me there, or for that, and even if you could, you lose. D.C. Circuit: Not only is the suit proper, but also the PI barring enforcement of document production is completely appropriate.
2. Does the Controlled Substances Act violate the Commerce Clause as applied to purely intrastate cultivation, manufacture, possession, and distribution of marijuana pursuant to state law? First Circuit: The Supreme Court said "no" back in 2005, and "no" is still the answer. The fact that Congress has since made use of appropriations riders preventing the DOJ from using any funds to prosecute state-legal marijuana doesn't change the analysis. And the law is fine under the Due Process Clause as well, despite the plaintiffs' thorough canvassing of marijuana's historical pedigree.
3. For thirty years, the town of Nantucket, Mass. has required a rental car to hold one of a limited set of rental-car "medallions"—a practice which has (shockingly) resulted in a small cartel of local businesses (plus one national chain) holding all the medallions themselves. And that, says the First Circuit, is a-okay by us.
4. Plainclothes Mt. Vernon, N.Y. officers grab sexagenarian pedestrian and, without identifying themselves, cuff him and hustle him into their unmarked car as he yells himself hoarse begging bystanders to call 911. Oops! He's not their suspect (who's wanted for misdemeanor groping). Second Circuit (unpublished): These things happen.
5. Second Circuit: Even though the defendant failed to even respond to the complaint, the district court nonetheless dismissed this case because the alleged copyright infringement was fair use, which was error because this totally isn't fair use! Concurrence: Guys, don't freak out, but I think I've come up with an easier way to resolve this case.
6. Plaintiff: New York City cancels tax-refund checks after only six months without notice. Now, I didn't get one of those checks myself, but I sell things for a living, and so if somebody had been able to cash their refund check after seven months, that unidentified somebody might have bought some things from me. Second Circuit (unpublished): Let us just stop you right there.
7. Allegation: On overnight flight, Penn State fencing coach gropes female fencing coach (who is unaffiliated with the school). He also repeatedly and unsuccessfully insists that they join the Mile High Club. Later, she is pressured to keep quiet. District court: She's neither a PSU student nor employee; her Title IX claims are dismissed. Third Circuit: Actually, for some claims she is within Title IX's "zone of interests." And some of her state-law claims against the groper are undismissed as well.
8. Does the First Amendment constrain the ability of government to remove books from public libraries? Fifth Circuit (en banc): Nope. Libraries' curation decisions are gov't speech, and not at all akin to the dissent's over-caffeinated invocations of book burning.
9. NLRB: So, 10 years ago, we found that this small business violated federal labor law, but then we just kind of . . . forgot about it for a while? Anyway, we just remembered, and so we think it's time to punish them. Fifth Circuit: Ten years? Ten? Years? Ten years?
10. Texas passes law to prevent vision plans from promoting vision-service providers they may be affiliated with. A First Amendment violation? Fifth Circuit: Indeed. We generally presume consumers don't benefit from having information withheld from them.
11. Allegation: Some Texas state employees sought to destroy pro-life organization that provides reproductive healthcare services across the state. This included feeding lies to the Texas Observer for a "hit piece," while another encouraged a disgruntled former employee of the organization to swipe confidential documents from the organization's Dropbox account that she still had access to. Fifth Circuit: The state employee who encouraged the Dropbox access used the disgruntled former employee as a state agent in a way that, if true, super violates the Fourth Amendment and leaves him without qualified immunity. Moreover, his argument that the organization lost its reasonable expectation of privacy in the contents of the documents by uploading them to Dropbox is bollocks.
12. Houston motorist flees, crashes his vehicle, and does not follow orders to show his hands. Officers shoot him dead. Officers: And his widow does not have standing to sue us. Fifth Circuit: She most certainly does. But it doesn't violate the Fourth Amendment to shoot if officers reasonably thought someone might have a gun, even if turns out there wasn't one.
13. Another week, another episode of the Seventh Circuit's brooking no sloppiness from hapless lawyers.
14. Federal-jurisdiction mavens may be interested in footnote 6 of this Eighth Circuit opinion, which informs us that the parties have already settled this case but that settlement (for unexplained reasons) "does not render this appeal moot."
15. "The central question in this case is whether 'Eleanor' is a copyrightable character. Eleanor is a collection of Ford Mustangs featured across four films, most recently in Gone in 60 Seconds (2000)." Ninth Circuit: Sadly for Eleanor, this assortment of sports cars is not really a character. But don't worry, the court reassures us that the Batmobile is.
16. In 2008, applicant applies for permission to build a 500-mile transmission line to carry power from a wind farm in New Mexico to market in Arizona and beyond. Ninth Circuit (2025): Which the feds granted without sufficient consideration of whether historic properties are affected. Case undismissed!
17. Washington State spa, where patrons are sometimes naked, only serves biological women, leading to state investigation after a trans woman with male genitalia is denied service. Ninth Circuit: The investigation didn't violate various provisions of the First Amendment. Dissent: The state statute doesn't actually bar the spa's conduct.
18. Allegation: Oakland, Calif. police officers engage in an unauthorized high-speed chase without turning on their lights or sirens, without informing dispatch, and with the intent to harm the suspect. The suspect loses control of his car, killing and severely injuring innocent bystanders. Whom police then ignore. Ninth Circuit: No qualified immunity. Dissent: Shocking, deeply disturbing, but QI.
19. And in en banc news, the D.C. Circuit will not reconsider its decision that Steve Bannon is contemptible (as in subject to sanctions for contempt of Congress—we avoid politics here). Three judges think there are separation of powers problems.

New case: In 1960, in Jones v. United States, the Supreme Court gutted the Fourth Amendment's oath-or-affirmation requirement, deep-sixing our noble history and tradition of issuing warrants based only on sworn, first-hand accounts from real accusers. Which was bad for all of us in general, and bad in particular for IJ client Michael Mendenhall, whose Denver townhome was searched based on third-hand hearsay from a patently unreliable source. Click here to learn more.

Comments

[John F. Carr]

A neutron bomb destroys the law but leaves lawyers standing.

[John F. Carr]

The Nantucket case is not just about medallions. To rent out cars, except with the aid of a tech company platform that considers itself above the law, you need a license for your business and a medallion for each car. The business licenses were handed out around 1997 and no more may be issued. All of them are in use. There are spare medallions. There is no process for dispensing them but at least it's not illegal to get a medallion.

[John F. Carr]

Did the Third Circuit split with the First in the groping case? The First Circuit ruled that Title IX did not apply to sexual misconduct by a student against a non-student.

[Noscitur a sociis]

In 1960, in Jones v. United States, the Supreme Court gutted the Fourth Amendment's oath-or-affirmation requirement

This seems like a fairly remarkable claim, given that:

1. The Supreme Court never mentions the oath or affirmation requirement in Jones;

2. The district court and the court of appeals didn’t mention it either; and

3. As best I can tell, Jones never suggested that the challenged warrant failed to satisfy the oath or affirmation requirement.

[ducksalad]

They mentioned probable cause. One assumes the oath or affirmation ought to somehow relate to the facts that create the probable cause. Isn't the idea that *someone* ought to (theoretically) be on the hook for perjury if the whole search was based on a bunch of lies.

Reading the summary, it does look like the officer in Jones made some additional arguments for why there was probable cause. It wasn't just a bald endorsement of an unsworn statement no one had to take responsibility for.

But how far would you let it go? Can the police just rubber stamp an oath on any request by one private citizen to have another arrested, and then claim the only thing they swore to was receiving the request?

Especially if it's an informant they are collaborating with. You tell the lie, I'll take the oath, we're both in the clear.

[Noscitur a sociis]

The question of whether an application for a search warrant establishes probable cause is at best orthogonal to whether it’s supported by oath or affirmation. And there may be interesting questions about how the oath or affirmation requirement applies to a sworn statement that incorporates unsworn statements by other people. By point is that I have trouble seeing how Jones can be said to have “gutted” anything related to the oath or affirmation clause of the fourth amendment, when no one involved in the case ever even suggested that that clause had been implicated.

[JoeFromtheBronx]

Jones does talk about the officer's affidavit, which it supplies in a footnote. The opinion notes:

On this, basis [Officer] Didone founded his oath that he believed "that there is now illicit narcotic drugs being secreated [sic] in the above apartment by Cecil Jones."

The basis relied on hearsay. The opinion says that "hearsay may be the basis for a warrant."

Clicking the link at the OP, this concerns IJ. It argues reliance on hearsay is not enough. "That required method of proof—sworn testimony from one with firsthand knowledge—makes good sense."

"Hearsay may well support an inference of probable cause, but it cannot satisfy the oath requirement."

I state no final judgment on that. But that is the reference.

[Noscitur a sociis]

I understand the argument IJ is now making based on the oath or affirmation requirement. I’m just not sure what Jones has to do with it, since the case didn’t present any arguments based on the oath or affirmation requirement. (It’s especially odd since you’d think IJ would want to point out that the Supreme Court hasn’t explicitly rejected its theory. Maybe it’s just force of habit.)

[Causter]

Opinions which don't include page headings telling you when you've reached a concurrence/dissent are unconstitutional, CMV.

[wvattorney13]

I think it is an interesting question whether the federal marijuana prohibition on home grown marijuana survives Raich now that the feds have acquiesced in state legal weed.

One of the main justifications in Raich was that a complete prohibition was absolutely necessary to effectuate the complete ban on interstate marijuana. Now that the market has legal weed everywhere, there is little left of that justification.

[Noscitur a sociis]

that the feds have acquiesced in state legal weed.

I seem to have missed this development.

One of the main justifications in Raich was that a complete prohibition was absolutely necessary to effectuate the complete ban on interstate marijuana. Now that the market has legal weed everywhere, there is little left of that justification.

To the extent that a federal policy of marijuana prohibition is permissible (and Raich says it is), doesn’t the lack of state enforcement only emphasize the need for federal law to reach intrastate activity to effectuate that policy?

[darkknight9]

"Sadly for Eleanor, this assortment of sports cars is not really a character. But don't worry, the court reassures us that the Batmobile is."

Amen.

[JoeFromtheBronx]

The marijuana opinion references that the funding provision is narrow in scope (medicinal marijuana), while the challenge is broader.

I disagree with the ban on marijuana on policy grounds. OTOH, the opinion seems to be correct; the situation did not significantly change in a constitutionally relevant way.

The history and tradition arguments are creative but fail on Glucksberg grounds. Again, I'm sympathetic. I think in an ideal world, there would be a constitutional right to use marijuana on multiple grounds, including health. It's not to be yet.