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

Dog toys, DoorDash, and unregistered foreign agents.

John Ross |The Volokh Conspiracy | 8.7.2026 5:09 PM

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

Qualified Immunity Victory! In April 2024, North Carolina sheriff's deputies looking for a suspected thief conducted a terrifying midnight raid on the home of Avery Marshall and Alisa Carr, holding the couple's two children at gunpoint and trashing the house. But the warrant to search Avery and Alisa's home was based on false testimony, and police continued to ransack the place even after it became clear they were in the wrong house (the actual suspect was apprehended the next day in a different county). This week, a district judge denied the officers' qualified immunity argument and allowed the case to move forward. Click here for more information.

New on the Short Circuit podcast: Stopping the Stop Woke Act and Georgetown law students win an appeal.

Google reports to authorities that a D.C. user's account has child sexual abuse material (CSAM). Police officer views some of the images, then seeks a warrant to search the rest and is told by magistrate a warrant isn't necessary. User seeks to suppress evidence, asserting illegal search. D.C. Circuit: We needn't wade into the circuit split on whether a warrant is needed to view the Google records because the officer was entitled to rely on the magistrate's opinion. Concurrence: I'd also say no warrant was required, and I'll use the statutory phrase "child pornography" rather than sanitizing acronyms.
Poorly written statute alert! When British American Tobacco paid $653 million for violating sanctions on North Korea, the gov't deposited only a small portion into the U.S. Victims of State Sponsored Terrorism Fund because only a small part of the conspiracy occurred when North Korea was designated a sponsor. Victims of Iranian-backed terrorism say more should have gone into the Fund. D.C. Circuit: Gov't policy arguments aside, the way the statute is written all sanctions-violation penalties go into the Fund.
Puerto Rico law broadly criminalizes false statements related to a governor-declared state of emergency. Journalists challenge the law for violating free speech. First Circuit: There's no general First Amendment exception for false speech, and this law is far too broad to pass constitutional muster.
When you order food through apps like DoorDash, Grubhub, or Uber Eats, the app gets all sorts of useful consumer data, but the restaurant preparing the food only gets your first name, last initial, and the order contents. New York City thinks that's unfair because of course they do, so they require the apps to share all the customer information with any restaurant that asks. The apps sue, alleging the law violates the First Amendment. Second Circuit: Correct. Concurrence: I just want to point out that the law is naked economic favoritism toward restaurants, which isn't a substantial gov't interest.
The Supreme Court has famously (and somewhat dubiously) held that the design on state-issued vanity license plates is "government speech" to which the First Amendment does not apply. But what about the character combination on vanity plates like, say, "FTP&ATF"? Fourth Circuit: Private speech to which the First Amendment applies.
Now here's a line that warms our IJ hearts: "Article IV protects the right to pursue a common calling on equal terms." (That's the Privileges & Immunities Clause of A4.) Texas only deems its own residents and residents of states that border it to be worthy of an "escrow-officer license." But since that law is likely unconstitutional, the Fifth Circuit awards a P.I. to an Illinois man who wants his attempt to always be closing to include Lone Star residents.
If a Texas property owner doesn't want people bringing guns onto their premises, but a guest does anyway, the guest can be criminally prosecuted. But only if the owner had communicated that guns aren't allowed either orally or with a specifically worded kind of sign in block letters and in both English and Spanish. Plaintiffs: The signs are ugly. Fifth Circuit (en banc): You don't have standing to sue about whether someone else might be prosecuted. Dissent: There's no regulation of what signs excluding dogs have to look like. That difference is an injury in itself.
The Big Easy may be a great place to party but New Orleans is not so easy with property owners renting to short-term visitors. Fifth Circuit (2022): Short-term rental ordinance requiring on-site operators violates the dormant commerce clause. Fifth Circuit (2025): Short-term rental ordinance banning businesses from owning properties violates equal protection. Fifth Circuit (2026): But with that stuff taken out, the limit of one license per block and a licensing requirement are totally fine.
Texas prisoner claims that because of how his prison is run he can't sleep more than four hours a night. He sues. A long time ago. The district court repeatedly says he doesn't have a claim while the appellate court repeatedly reverses and remands, explaining to the district court that the Eighth Amendment analysis was wrong. Which this week the Fifth Circuit did for the third time, 18 years after the man alleges his sleeping problems began.
U.S. citizen living in the U.K. applies to a professor job at the University of Cincinnati. There's all kinds of intra-department squabbling about whether they shouldn't hire him because he's the wrong gender. So they hire no one. He claims that's a Title IX violation. Sixth Circuit: Actually, Title IX only helps you if you live in the good ol' U.S. of A.
May an appellate court never direct toward you what the Sixth Circuit recently said about one Michigan lawyer: "[I]n the sands of this litigation, [his] involvement has left hardly a trace." After losing nearly every claim in a home-equity theft case at the district court to later winning on appeal with a brief copied and pasted from a pro bono firm's brief, said lawyer's 999 billed hours are reduced to 10. The other attorneys requesting fees fare marginally better. Concurrence: The majority doesn't go far enough.
Man believes he's wrongfully on the FBI's Terrorist Watchlist and its subcategory the Selectee List, which subjects him to additional screening. He submits redress inquiries to DHS, which closes the cases and refuses to confirm whether he's present on any list. He sues. Seventh Circuit (per curiam): His challenge to his inclusion in the lists can go forward, but his challenge to the redress program cannot. Three-judge concurrence: Every circuit to have considered whether the statutory term "order" includes "regulations" in the last 50 years has concluded that it does. We're consistent—but are we right? Ehhh.
"FODMAP" is an acronym for certain sugars, which many people are unable to digest. Helpfully, a food company wants to include truthful and accurate information about its products' FODMAP levels on its labels. And at least one of their customers would love to see that information when she's searching out low-FODMAP foods. But wait! Federal law prohibits including the info on the labels. A First Amendment violation for company and customer alike? District court: No standing. Ninth Circuit: Yes standing. Case (largely) undismissed. (This is an IJ case).
Bad Spaniels returns to the spotlight after its trip to the Supreme Court, then back to the Ninth, then down to the district court, and now back to the Ninth Circuit, which holds: Jack Daniel's' trademark-dilution claim loses. Bad Spaniels's dog-poop-themed squeaky toy is not likely to harm the reputation of the storied Jack Daniel.
Does an AI company violate the Computer Fraud and Abuse Act when its AI agent accesses Amazon's website without permission? Ninth Circuit: Nope—the accessing is done by the user, not by the company that made the AI tool (or the web browser or the operating system). Preliminary injunction dissolved!
Does it violate the First Amendment to punish unregistered foreign agents for saying stuff at the behest of the Russian gov't? Eleventh Circuit: No, because the registration requirement is triggered by the "behest of the Russian gov't" no matter what stuff they actually tell you to say.
Eleventh Circuit (en banc): Florida law making it a crime to admit a child to adult live performances isn't unconstitutionally vague because its definitions track the Supreme Court's Miller test, even if nobody knows what the Miller test really means. Dissent: Florida businesses are now subject to a "mess-around-and-find-out (MAFO)" First Amendment jurisprudence.
Eleventh Circuit (unpublished): We'll grant you that the soap-operatic qualities of this story make us sympathetic to the wrongly arrested plaintiff, but the defendant officers were trying to interpret a protective order that's . . . well, just look at this picture of it!
And in en banc news, the D.C. Circuit is (mostly) equally divided in a messy case involving Biden-era greenhouse-gas-reduction grants that the Trump EPA tried to terminate (after a divided panel previously sided with the gov't). So the challenged preliminary injunction against the termination remains in place while the case is litigated.
And, in further en banc news, the Sixth Circuit will reconsider its holding that the FCC's new consumer-privacy rules for telecom providers are within the agency's legal authority.

Never-Say-Die Victory! In 2001, IJ challenged an Oklahoma law that gives licensed funeral directors a monopoly on the sale of caskets. Although the Fifth and Sixth Circuits have struck down identical laws, the Tenth Circuit in 2004 upheld Oklahoma's law, infamously observing that "while baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments." That's been grinding our gears for two decades, so this year we sued again, alleging that Oklahoma's protectionist law violates the state constitution. And last week an Oklahoma state court denied the state's motion to dismiss our new lawsuit! Read more here.