Enjoy the latest edition of Short Circuit, a weekly column written by a number of people from the Institute for Justice.
New petition: If the government does not want to restrict speech based on its content, it bears the burden of demonstrating, among other things, why the restriction is necessary. But earlier this year, the Second Circuit upheld New York’s restrictions on out-of-state therapists offering teletherapy to New York residents, without holding the state accountable. The decision has divided not one, but two circuits on key First Amendment questions, so we say the Supreme Court should take a look. Click here to learn more.
At Short Circuit we think of the Roman Empire. At least, what happened after it fell. That’s because Duke’s Judicial power just published a piece by IJ’s Matt Liles and Anthony Sanders on the history of the phrase en banc, from its origins in the post-apocalyptic wilderness of Gaul to the modern federal courts. They conclude that “en banc” does not have any correct pronunciation. Say it how you want.
- It’s a confrontation between prosecutor and prosecutor in a dispute over whether the Justice Department should turn over documents to the district attorney of Hampden County, Massachusetts regarding the DOJ’s investigation into police misconduct within the Springfield Police Department . Prosecutor: I need that information because some of it could serve as exculpatory evidence in my criminal prosecution. Round One: The DOJ did not abuse its discretion in saying the documents can be withheld under work product and law enforcement privileges.
- An Internet communications platform in Puerto Rico is suing a collection of federal prosecutors, FBI agents and employees of two competitors. Allegations: Our competitors conspired with the FBI to search our offices and give these companies access to our confidential trade secrets. That violated our Fourth Amendment rights; we should get compensation under the Bivens learn. First Circuit: Is your name Webster Bivens? No? Then you’re out of luck.
- The day after gas station/supermarket chain Wawa, Inc. announces that hackers have obtained financial data of approximately 22 million customers, enterprising lawyers launch class action lawsuits. To settle, the plaintiff’s attorneys and Wawa come to a $9 million deal, most of which will be compensation. . . gift cards. Only $2.9 million is being claimed and the plaintiff’s lawyers are getting $3.2 million. Was that reasonable under section 23(h)? Third Circuit: The rule includes a historical reasonableness standard, which it is not. Asked to start over.
- “Judicial immunity is strong medicine.” But, the Fourth Circuit says, not strong enough to allow a family court judge in Raleigh County, W.Va. who entered a man’s home without a warrant (under penalty of arrest), forbade him from making recordings (under penalty of arrest), and (barefoot) led a search of his home, resulting in the man’s ex-wife and her lawyer disputed items such as DVDs, photos and an umbrella stand. (This is an IJ case.)
- Anonymous 911 caller: “I shot my girlfriend with a 9mm.” Abilene, Texas officers break into an apartment, where they find the accuser and a pellet gun, but no girlfriend or 9mm. Officers after search: We will keep you under arrest until we find out who made the false 911 call. Fifth Circuit: No QI for detention after search. “[I]It would be absurd for someone to file a false report about themselves.”
- The governor of Texas issues an executive order banning private individuals from “transporting migrants previously detained or deported.” People who don’t like this sue him. Fifth Circuit: The man may have made this law, but he doesn’t enforce it. Sovereign immunity. Dissenting opinion: All the plaintiffs need at this stage is a touch of enforcement.
- Listed companies often buy back their own shares. Sometimes they do it because they think the stock is undervalued, but other times they may do it to pump up the value and gain additional compensation for managers. The SEC believes investors should know which of these stocks they are, so upon notice and comment, it orders companies that buy back their own shares to disclose the reason. The U.S. Chamber of Commerce and others dispute the rule. Fifth Circuit: No First Amendment problem here. But the agency didn’t take the comments about the cost/benefit of the proposal seriously enough, so it’s back to the drawing board.
- The Sixth Circuit has a growing body of law specifically on where plaintiffs can file a lawsuit over Kathy Griffin’s tweets. Who knows? Here she called on a Twitter mob to successfully get a Tennessee principal fired after he lost his temper (they thought homophobically) when school visitors disrupted his dinner. Can he sue Griffin (a Californian) in Tennessee for torts related to her Twitter activity? Indeed, that’s possible, because Griffin tagged his employer in Tennessee and her tweets highlighted his Tennessee residence, so targeting Tennessee gives the state’s courts personal jurisdiction over the claims.
- Allegation: Protesters protesting the Dakota Access Pipeline in North Dakota are injured when police used pepper spray, bean bags, water and rubber bullets against the crowd. Unreasonable seizures? Eighth Circuit: Officers were unaware that their actions could have violated the Constitution; we have repeatedly recognized that the law is unclear on whether the use of force to disperse a crowd constitutes a seizure.
- In 2021, Arizona banned abortions performed “solely because of a genetic abnormality.” A group of doctors (who would otherwise perform more abortions) challenged the law as unconstitutionally vague. Court of the District: Dobbs has eliminated any right to abortion, so I don’t see how you can stand at all. Ninth Circuit: Remanded! We’re not weighing in on the merits, but these doctors are clearly affected enough to file a lawsuit.
- A California man attends the Hmong New Year’s Festival at the state fairgrounds in Sacramento, hoping to hand out religious tokens. He has been told he can distribute them outside the festival, but not inside. Undeterred, he buys a ticket, goes inside, hands out tokens and is removed. He is suing, arguing that the fairgrounds are a traditional public forum. Ninth Circuit: The fairgrounds were surrounded by a fence and you had to purchase a ticket to enter, neither of which is typical of traditional public forums.
- Former participants in a treatment program for troubled youth in Wyoming file a class action, claiming they were essentially kidnapped and forced into forced labor (the program was housed on a ranch). The court refuses to certify the group, concluding that everyone’s claims are simply too different. Tenth Circuit: But the district court’s standards were too strict. Look at that again.
- In an effort to improve race relations, Miami Beach officials are commissioning artists to produce works for a curated exhibition the city hopes[] crucial conversations about inclusivity, blackness, and relationships.” Artist: Okay, here’s my painting of a Haitian-American man shot and killed by Miami police in 2011. City: We don’t want to start that particular conversation, so no, thanks Eleventh Circuit: That’s fine. The city’s decisions about what art to buy and display are not government rulings, so the First Amendment doesn’t apply.
- A Florida man loses a major poker game and allegedly uses his cell phone to arrange a violent robbery of the winners. The police get a warrant for almost all of his iCloud data without any time limits, even though the last backup was 12 hours before the poker game. They find a month old photo of the man with a gun. Yes! Based on that image, he is accused of being a criminal. Suppress the evidence? Eleventh Circuit: He has a good case that the search warrant was too broad, but in this newfangled world of technology, the law is so unsettled that the officers had a right to rely on the warrant in good faith. Concurrence: In the future, cloud search commands should actually specify specific time frames, topics, and data categories.
- The Indiana Constitution provides that “in all civil cases the right to a trial by jury shall be unimpaired.” But are defendants in civil forfeiture proceedings – in this case, the owner of $2,435 cash the state wants to collect – entitled to a jury trial? Indiana Supreme Court: Indeed they do! And the state’s argument to the contrary would effectively deprive Hoosiers of a jury trial when filing suit under a modern legal system. (This is an IJ case.)
- And in amicus short news, IJ urged the Oregon Supreme Court this week to confirm that it would violate double jeopardy to use civil forfeiture to seize the home of a 60-year-old. after the resolution of her criminal case (which resulted in a guilty plea, prison time, and the criminal forfeiture of $50,000.)
- And in denial news, the Supreme Court decided not to rehearse this week King vs. Brownback, although the earlier ruling in the case left a critical question unanswered: Does the FTCA ruling preclude consideration of other claims brought in the same proceeding? This means that two federal task force agents who beat and choked an innocent student until he was unconscious (after mistaking him for a fugitive) – and then had him jailed and prosecuted on false charges – will bear no responsibility . Judge Sotomayor wrote separately criticizing the denial.
- And in more denial news, SCOTX has declined to review a South Padre Island ordinance that requires food trucks to get a restaurant’s blessing before operating in the city. Writing separately, Judge Young noted that this is so clearly unconstitutional that “the Court would have little opportunity to develop the law” if it had taken up the case. (This is an IJ case. And here’s a sparkling law review article about the deep roots of economic freedom in Texas.)
When a baby is born in the US, blood samples are taken and tested for various diseases. But in New Jersey, health officials keep and store the samples — without any parental notification — for 23 years. There are no restrictions on how the samples can be used, and in the past they have been given (without a warrant) to law enforcement agencies. “It is incredibly misleading for the state to tell parents that they are simply taking blood from their babies to test for diseases, when it could be sold to third parties or used by other government agencies to build invasive databases or registries “, said IJ lawyer Brian Morris. That’s why IJ filed a class action this week demanding that the state destroy the samples after testing or obtain parental consent to allow specific uses of the samples. Click here to learn more.