The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Fabricated identities, fictitious daycares, and made-up laws.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New case! IJ clients Charles and Eli Copley own 50 wooded acres in Roxbury, Conn., where they've always welcomed hikers for a small hourly fee, an absolutely harmless use that is not visible to the neighbors. But the town says that might violate the zoning code—just not any part of the code that is written down—and the Copleys haven't been able to have any hikers for a year. Outrageous! Click here to learn more.
New on the Short Circuit podcast: Our #12Months12Circuits series makes it to the Eighth. There's irreparable harm and contractor speech.
- Today in news you can use: Check your prospective interns' resumes and references! A Project Veritas undercover journalist fabricated a false identity to infiltrate a Democratic political consulting firm, and some of her recorded material was used in an embarrassing series of YouTube videos that caused major clients to ditch the firm. Firm sues reporters and wins a big verdict. D.C. Circuit (over a partial dissent): While her fraudulent actions may have been tortious, most of the videos were fully protected by the First Amendment, so the jury's award here must be overturned because it didn't specifically tie damages to the fraudulently procured aspects.
- New Hampshire parents (and a grandparent) are barred from school property after wearing pink wristbands at high school soccer game in protest of a trans player on the visiting team. First Circuit: Seems like a First Amendment problem.
- Congress reformed the immigration removal system three decades ago, allowing some—but not all—aliens to be released on bond pending their hearing. A regulation issued soon after explaining that bond was available only for people already within the U.S., not for those arriving at the border. The feds reversed course last summer; now, no bond for any aliens. Cool? Fifth, Eighth circuits: Yup. First, Second, Sixth, Seventh, Ninth, Tenth, Eleventh, and now Third circuits: No.
- If you've been sued and are worried you've waived your rights to invoke arbitration against putative class members, rest assured the Third Circuit says you'll be OK even if you wait 55 months. And the Third Circuit also says if you've taken some depositions first, no worries, arbitration can still be on like Donkey Kong.
- During an oversight visit to a federal immigration facility, N.J. congresswoman has a confrontation with federal officials. She's later charged with assaulting, resisting, or impeding a federal officer. She claims immunity under the Speech and Debate Clause and alleges vindictive prosecution. Third Circuit: She loses on two of the counts against her and we remand on the third. Dissent: Sure seems like she's being treated worse than Jan. 6 defendants.
- Federal political candidates are entitled to buy broadcast advertising time at the "lowest unit cost." The FCC issues a public notice that political parties and joint fundraising committees enjoy the same right. Democratic candidates sue. Fourth Circuit: We invalidate the public notice. Dissent: "I would not neuter a federal agency and seize imaginary jurisdiction only to disfavor the place of political parties in our democratic dialogue and to dampen the vigor of pre-election political speech."
- North Carolina woman, originally from Mexico but who has lived in the U.S. since childhood, was convicted in state court in 2006 on marijuana charges. The feds later try to deport her. Meanwhile, the state court vacates her conviction (the sentence for which she had completed). Feds: A vacated sentence still qualifies for deportation. Fourth Circuit: Well, under Chevron you'd be right, given your rules. But without deference to you, we think your reading of the statute is wrong.
- Allegation: Woman peacefully protests fatal police shooting by grilling hot dogs and hamburgers outside Lafayette, La. mayor's house. She is arrested for obstructing the roadway, which she wasn't, and strip searched at jail. Unlawful retaliation for speech? Unconstitutional arrest without probable cause? Fifth Circuit: Qualified immunity. Dissent: Qualified immunity is made up and wrong, and also it doesn't apply here.
- Fifth Circuit: "As we understand the operation of the internet exoterically, it consists of websites and links that are, in the truest sense, embedded in our everyday life. But this appeal turns on the esoteric. We must understand the innerworkings of this technology to comprehend how another framework—that of copyright law—can be superimposed on it."
- Student visiting Michigan court as part of a vocational program falls asleep while judge is giving career advice. Yikes! The judge has her locked up for several hours and then puts her on fake trial. She sues. Judge: The "trial" may have been fake, but I am a real judge entitled to real judicial immunity. Sixth Circuit: We'll give you points for chutzpah, but not immunity.
- With a little help from friends, family, and caregivers, quadriplegic woman has been by all accounts a very capable surrogate mother to various children, including her niece and nephew, as well as to the occasional child-welfare placement. Sixth Circuit: But Michigan did not engage in disability discrimination in rejecting her application to be a foster mom. Indeed, the state says she can even reapply at some point, which hardly reeks of animus.
- When ninth grader is suspended for fighting, a Macomb County, Mich. school police officer tells him, falsely, that there's a new three-strikes law and he's one strike away from being expelled and imprisoned. Distraught, the student flees school on foot and commits suicide several hours later. Sixth Circuit: An unspeakable tragedy. However, …
- Is possessing virtual, AI-generated child sexual abuse material in the privacy of the home protected by the First Amendment? Seventh Circuit: Under binding precedent, yeah, it seems to be protected. Two-judge concurrence: Perhaps SCOTUS should give a fresh look-see to its early-aughts precedent on this subject.
- In which the Eighth Circuit holds that Fargo, N.D.'s definition of "adult bookstore" isn't unconstitutionally vague but also doesn't cover a sexually oriented shop whose offerings are, ahem, less literary in nature.
- Arkansas sex offender serves most of his 30-year-sentence, is granted parole, and seeks to live on property owned by family trust. Yikes! His parole officer fabricates a nonexistent daycare nearby and bars him from living there—a situation that other officials, apprised of the lie, do not remedy. A due-process violation? Eighth Circuit: There is no constitutional right to early release, so no.
- Can California require that businesses mount video cameras that run 24/7 and capture audio inside their premises and also be subject to warrantless inspections, even if operating from the owner's home? Ninth Circuit: If they're selling guns, absolutely! Dissent: Didn't we adopt a few constitutional amendments that might apply to this?
- In 1967, Congress investigated the communications failures that led to Israeli forces attacking the U.S.S. Liberty, killing 34 sailors. The resulting report—now in the hands of the NSA—has never been publicly released. Ninth Circuit: And unreleased it shall stay. The Freedom of Information Act requires disclosure of certain agency records, but the report is a congressional record, notwithstanding the NSA having a "purloined" copy.
- In a class-action settlement where the class numbered an estimated 247 million Americans, Google coughs up $62 mil. None of the money will go to the class members. Instead, it's intended for organizations that the parties assert do good works and deeds. Some class members object and say not giving the money to the actual class members seems wrong. Ninth Circuit: It would be hard to do that, so this is close enough. Dissent: Pardon my Norman French.
- In which your humble editor is pleased to note that a San Francisco man convicted after firing a gun in the air outside a bar was apprehended by … Officer Frisk! Ninth Circuit (over a dissent): The district court needs to reconsider the man's 45-month sentence, this time without suggesting that his decision to exercise his constitutional right to trial, etc., indicates a lack of contrition.
- Sweeping executive order imposes after-the-fact conditions on federal grants from HUD and DOT. Local governments challenge the conditions and a district court enjoins them. Ninth Circuit: Almost entirely affirmed. Dissent: "In the end, this is yet another instance of courts confronting a question of "who decides" and choosing wrong."
- Eleventh Circuit: "What began with a disgruntled ex-contractor interfering with the jumbotrons in the middle of several NFL games turned out to be much more—a case about child pornography possession and production, unlawful possession of a firearm, sex-offender registration obligations, and of course, computer hacking."
- You could read this whole Eleventh Circuit opinion about Miami-Dade commissioners allegedly using police to settle personal and political scores and then firing the police chief, who, in his capacity as a private citizen, objected. Or you could "ctrl-f" for "Elvis," "tight pants," and "The Godfather," which are not fun pop culture references but real things from the case. Qualified and legislative immunity for the commissioners denied!
- And in en banc news, the Eleventh Circuit will reconsider its precedent that sneaks the Federal Tort Claims Act's discretionary-function exception into the Suits in Admiralty Act, a different law that contains no such exception. Which is good news for these two boaters who crashed into an unmarked duck blind and who would like to sue the feds under the SAA.
Victory! For years, Humboldt County, Calif. officials abused their code-enforcement powers and fined property owners exorbitant, unpayable sums for cannabis-related violations—without a care as to whether anyone actually grew cannabis. When people sought to contest those fines, the county endlessly delayed holding hearings, even as the $30k-per-day fines continued to accrue. For instance, IJ client Blu Graham requested a hearing to show that his greenhouse contained vegetables, not cannabis, and he was kept waiting over four and a half years (and, in fact, only got a hearing as we were preparing to file suit). In 2024, the Ninth Circuit said all that did indeed raise some concerns. And after we started deposing officials, the county decided to settle, agreeing to make our clients whole and to respect the Constitution going forward. Click here to learn more.
