Short Circuit

Fans of truckers should enjoy this episode, although they may grow angry hearing about a truck stop that never was to be. Tahmineh Dehbozorgi of IJ tells us of a property owner in Georgia who wanted to turn his land by a highway into a truck stop. But the county was dead set against him, leading to a decades-long zoning battle. A gas station would be OK, but not if it looks more like a place where truckers can fuel their rigs and get a little rest. In the end, when the controversy finally reaches the Eleventh Circuit the rational-basis test squashes any chance the truck stop has because . . . well because it’s a rational-basis case. Then Suranjan Sen takes us to the Sixth Circuit where an eight-year-old wore a hat with a gun on it that also says “Come and Take It.” The student was asked to take it off ostensibly because of a recent shooting in a nearby school. Did that violate the First Amendment? The court claims it did not but the matter seems a close case under the relevant caselaw. The crew looks at the relevance of the Tinker case from the Vietnam War era and also where the “come and take it” phrase comes from. Did you know it’s a Battle of Thermopylae thing? Click here for transcript. Corey v. Rockdale County C.S. v. McCrumb Tinker v. Des Moines Sch. Dist. Angry Cheerleader Case Roll On (Eighteen Wheeler)

Sometimes a short ride goes a long way. Casey Mattox of Stand Together comes on to tell us how a dirt biker in Nevada may end up making some constitutional history. Agents of the Bureau of Land Management gave the dirt biker a citation for riding without a license-plate light. His public defender argued the underlying law was unconstitutional because Congress hadn’t given the Bureau an “intelligible principle” to guide the underlying traffic regulation and thus violated the nondelegation doctrine. That argument won at the district court but then the Ninth Circuit recently overturned it on appeal. But there may be more life in the case to come. Then Arif Panju of IJ details the latest challenge to a university speech code. A judge twisted some arms to get the school to change its policy and then declared the case moot. The Fifth Circuit, however, said the game’s not over yet because there’s no guarantee the old code won’t come back. Click here for transcript. US v. Pheasant Speech First v. McCall Uzuegbunam v. Preczewski FBI v. Fikre 2019 blog post on voluntary cessation Zen & the Art of Motorcycle Maintenance

Two federal appellate opinions involving a murder and whether justice was served. First, IJ’s Dan Alban reports on a Sixth Circuit case where a man alleges he was wrongfully accused and spent seven years in jail waiting for trials on various false charges, including not just murder but others too—including sodomy—and where the trials never happened. All of this, the man claims, was because of a conspiracy directed toward getting him to testify—and lie—in another case. It’s a crazy story that the court doesn’t want to hear because it concluded the man’s civil rights lawsuit was filed too late. Then we hear from An Altik of IJ about the latest in the very long running saga of a man, Rodney Reed, trying to prove his innocence while on death row. Reed was successful at the Supreme Court last year in his attempt to have a claim for DNA testing to be heard. But now that the Fifth Circuit has considered the claim it has denied relief. The court declared that the underlying rule used in Texas courts is constitutional under the Due Process Clause. Click here for transcript. Reed v. Goertz Brown v. Louisville-Jefferson County Background on Rodney Reed case The Murder on the Links

Constitutional rights protect everyone, even people we might not be terribly fond of. This week we discuss two defendants who perhaps don’t deserve a lot of sympathy but nevertheless had their rights vindicated in a way that protects those rights more broadly. First, an IJ alumna, Anna Goodman Lucardi, rejoins Short Circuit to update us on goings on in the Fifth Circuit where the court applied last year’s SCOTUS case about jury trial rights, SEC v. Jarkesy, to a similar situation involving the FCC and fines. The court found that the FCC’s system violated both the Seventh Amendment and Article III of the Constitution. This even though the well-known defendant, AT&T, is a “common carrier.” Then Jessica Bigbie of IJ reports on a Tenth Circuit matter where a warrant led to police finding some not-legal images on someone’s phone. But the warrant itself had some not-constitutional language under the Fourth Amendment. Language allowing the authorities to basically search everything for anything. Jessica applies her background as a public defender and assesses why this “unicorn” of a case came out the way it did. We then end the show with some “where are they now” on cases from Short Circuits past. Click here for transcript. AT&T v. FCC U.S. v. Santiago SEC v. Jarkesy Lawson’s The Rise & Rise of the Admin State The Mouse’s Tale

All kinds of constitutional goodies this week, from sovereign immunity to the First Amendment right to dance. But we begin with our annual Kentucky Derby preview from IJ’s Kentucky boy, Brian Morris. After that Brian keeps things local with a case from the Derby’s home circuit, the Sixth, which features another old favorite of the podcast, Ex parte Young. That precedent helps a pipeline company with some litigation against the governor of Michigan concerning an easement under the Straits of Mackinac (a name we proudly pronounce correctly). Then Evan Lisull, IJ’s legal writing guru, fresh from editing a round of recent briefing, gives some tips for writing at the Supreme Court. He also shares with us an Eleventh Circuit case concerning Jacksonville, Florida’s efforts to stymy the dancing opportunities of 18-20 year olds. The facts are very “Florida Man” (well, “Florida Young Women” technically) and although we give a brief and clinical description of the activities that Jacksonville is trying to ban, parents may want to hit pause if they have younger children listening. The larger issue we spend far more time addressing is whether content-based restrictions on speech related to zoning and unwanted “secondary effects” receive strict scrutiny or not. As a bonus, there’s even a fan-favorite: a Judge Newsom concurrence. We close with some reflections on a favorite of Evan’s during Derby week, Hunter S. Thompson’s 1970 essay on the circus surrounding the run for the roses. Click here for transcript. Enbridge Energy v. Whitmer Wacko’s Too v. Jacksonville Ex parte Young The Kentucky Derby Is Decadent & Depraved

Short Circuit went mile high for a live show before the students at Sturm College of Law at the University of Denver. The focus was qualified immunity. That’s because Colorado led the way with qualified immunity reform a few years ago when its legislature adopted SB 20-217, which created a cause of action for suing state and local officials when they violate rights protected by the state constitution and also made sure that qualified immunity wouldn’t get in the way. Our panel were three local experts on the subject. First we heard from former Colorado State Senator John Cooke. Senator Cooke was involved in the passage of Colorado’s reform legislation while also working with law enforcement. He explains what was involved in those negotiations and what the reforms mean from the law enforcement side, something he knows about after having served as an officer and a sheriff for thirty years before entering the legislature. Then we hear from Andy McNulty, a Colorado civil rights lawyer. He was also involved in the passage of Colorado’s reforms and gives us his perspective from the civil rights litigation side. Then he describes a Tenth Circuit case he litigated about a woman who was brutally injured by a police officer. The court said her rights were indeed violated, but not in a way that overcame qualified immunity. Finally, we hear from Professor Laurent Sacharoff of Denver Law. He tells us of a recent Tenth Circuit case where a couple of officers got their dog to run into a house without first contacting the resident but after telling the dog to bite the first person it sees. Sig, the dog, then did what it was told and bit the resident—who was asleep in bed—and was allowed to hold on for a minute before the police commanded it to stop. The court found that this was so obviously wrong that it not only violated the Constitution but that the plaintiff overcame qualified immunity. The panel discusses why QI was defeated in one case and not the other and how this makes for unpredictability in legal practice. Click here for transcript. SB 20-217 Surat v. Klamser Luethje v. Kyle Tenth Circuit courtrooms

An old friend returns to Short Circuit, but it’s not a guest. It’s a case, Villarreal v. City of Laredo, where police retaliated against a citizen journalist. We’ve talked about the matter a few times before, most recently last year when the Supreme Court was considering whether to take it. The thing is, the Court did take the case, reversed what the Fifth Circuit did on qualified immunity, and remanded for a do over based on IJ’s victory last year, Gonzalez v. Trevino. Which the Fifth Circuit now claims it has done, except it seems like nothing changed. IJ’s Kirby Thomas West analyzes the outcome and tries to make sense of the current state of play. After that Jacob Harcar of IJ take us down memory lane to when some of us used to rent these rectangular things called VHS cassettes. Because of worries about privacy—and in the wake of Judge Robert Bork’s confirmation hearings—Congress passed a law in the 1980s banning video stores from giving out lists of what movies people rented. Turns out, even though just about no one rents these things anymore, the statute still applies to rentals of movies online. Both the Sixth Circuit and the Seventh Circuit recently ruled on the scope of the law and came to opposite conclusions. Along the way, Jacob provides a dramatic reading of the original article about Bork’s video rentals. And stay tuned to the end for a segment of “Where Are They Now?” Click here for transcript. Villarreal v. City of Laredo Gardner v. Me-TV National Limited Partnership Salazar v. Paramount Global Short Circuit episode with JT Morris 1987 article on Judge Bork’s video rentals Short Circuit episode on Papa Johns’ website Nietzsche’s Eternal Recurrence

Last week the Short Circuit staff celebrated ten years of our inexhaustive coverage of the federal courts of appeals. At the Studio Theatre in Washington, D.C. we welcomed about 150 of our closest friends to an evening of reminiscing about “how it all began” with John Ross, Robert McNamara, and Clark Neily plus a “showcase panel” discussing the future of the federal circuits with moderator Ben Field eliciting comment from retired judges Kent Jordan (Third Circuit) and Diane Wood (Seventh Circuit) plus Adam Liptak of the New York Times. Unfortunately for you, dear podcast listener, those acts of our performance were not recorded. But sandwiched between them we held a Short Circuit Live which, like all Short Circuit Lives, was recorded! Which is this week’s episode. Your host Anya Bidwell welcomes two returning guests to Short Circuit, Professor Eugene Volokh of the Hoover Institution at Stanford University and Raffi Melkonian, appellate attorney and partner at Wright Close and Barger in Houston, Texas, and, as many listeners will know, the Dean of what some still call #AppellateTwitter. Eugene begins the episode with a recent en banc ruling from the Ninth Circuit which upheld California’s ban on gun magazines with more than 10 rounds. He analyzes the majority’s reasoning but what the audience really enjoyed was his—and Raffi and Anya’s—thoughts about the video dissent by Judge Van Dyke, wherein the judge displayed a number of firearms and how they work. Then we move to Raffi for a few litigation tips from Lord of the Rings. We don’t do a lot of arbitration cases on Short Circuit but, wow, if you’re ever going to hear about one it’s got to be this. Four different arbitrators all heard one dispute, gave mutually inconsistent awards, and even sanctioned one and other. How does this story end? The Fifth Circuit hopes with one last arbitration to rule them all. If it doesn’t go to the Supreme Court first. Click here for transcript. Duncan v. Bonta Sullivan v. Feldman Judge Van Dyke’s video dissent

Bad news for our AI listeners this week. The D.C. Circuit ruled that you cannot be the “author” of a copyrighted work. Only humans get that perk. Dan Knepper of IJ comes by to explain this latest victory in humanity’s war against the machines. Dan also lays out how the court actually kind of dodged some of the trickier issues when it comes to artificial intelligence and copyright law, but notes that those may be coming soon. IJ’s Dan Nelson (no relation) then steps up and takes us on a trek to Wyoming where some hunters engaged in “corner crossing” to get to public land, which an adjoining private landowner did not appreciate. The owner sued the hunters for nine million big ones because they briefly were in private airspace while jumping between parcels. Was that jumping OK? You’ll learn why the Tenth Circuit said it was, and also hear some history about why the West was turned into a checkerboard. Click here for transcript. Daniel Nelson and Patrick Jaicomo’s Section 1983 article Thaler v. Perlmutter Iron Bar Holdings v. Cape John Connor's speech

Most weeks we summarize two, sometimes three, cases from the federal courts of appeals. This week we provide to you free of charge (as always) one, single, case. But, hang on, it has four opinions! It’s also 169 pages, which is way way more than our guests usually read for all an episode’s cases put together. We did, however, so you don't have to. The matter is about a Florida public school that didn’t abide by the wishes of a child’s parents when it comes to what pronouns to use for the child. Much more broadly, though, it’s about the ins-and-outs of how the due process clauses of the Constitution substantively protect rights. And how rights are protected is different not only based on whether the right is “fundamental” or not, but also whether the government is acting legislatively or executively. Our team goes through each opinion, details where the three Eleventh Circuit judges disagreed with each other, evaluates the litigation tactics, and points out where the judges—and the Supreme Court precedent they’re relying on—go astray. Click here for transcript. Littlejohn v. School Board of Leon County Sacramento v. Lewis Judge Newsom’s article on incorporation The One and Only Substantive Due Process Clause

Is stretching out one’s middle finger at the police protected by the First Amendment? And whether it is or not, can the police trump up charges and assault someone who flips that bird? We dig into those deep constitutional issues with Jaba Tsitsuashvili of IJ when he discusses an Eighth Circuit case about a man stopped in Des Moines, Iowa. The police claim it was because he drove dangerously. The courts bought that—until the man got a hold of the video. It showed that the police may not have been entirely accurate, which led to his acquittal and the current civil rights lawsuit. Then we move to the Sixth Circuit and hear from IJ’s Robert Fellner about another retaliation case, this time involving Wayne County, Michigan. A man had his pension cut off in response to him criticizing the county’s policies. But he seems to have not actually qualified for the pension at that time anyway. What’s that mean for retaliation and the First Amendment? The court upheld a jury award for the man and he won on appeal. Our panel discuss how the issue can get complicated. Click here for transcript. Fugenschuh v. Minnehan Seals v. Wayne County Whren v. U.S.

Often in old constitutional cases you see judges of yonder years invoking this mysterious substance called “the police power.” It’s something that has fallen out of a lot of our constitutional conversations, and unfortunately when it’s remembered today it’s often taken to mean “the government can do whatever it wants.” We take an episode to try and set things straight. Joining us is Professor Daniel B. Rodriguez of Northwestern, who has written a book to explain what the police power is, where it comes from, and why it—for better or for worse—allows our state and local governments to do a good many things, but not all things. The book is Good Governing: The Police Power in the American States. Dan points out that the police power, the states’ power to regulate for public health, safety, welfare (and perhaps morals), was traditionally not thought of as simply letting the government do whatever it wants minus constitutional rights. Instead, what the government did could exceed the police power without even getting to the question of rights. Over the years the police power has expanded in ways many of us can reasonably disagree about, Dan taking a more expansive view than many fans of IJ might. But whatever one’s thoughts on where the edges are, Dan persuasively argues we need to reassess where the police power has gone and where it’s going. On the podcast we particularly focus on zoning and occupational licensing as a couple areas needing rethinking, and cover much other ground. It you’ve ever wondered what’s the difference is between the police power and due process or where the states get their authority to regulate in the first place this is the wide-ranging episode—and book—for you. Click here for transcript. Good Governing (free download!) Good Governing (physical copy for purchase) Dan’s NYU Journal of Law & Liberty article

What’s the difference between a campaign contribution and a bribe? More than the Sixth Circuit seemed to think. Or so argues Paul Sherman of IJ about a recent appeal of a bribery prosecution of a Cincinnati city councilmember. The councilmember was speaking to a developer and asking for a contribution. Unknown to him, the developer was working with the FBI and wearing a wire. They had some conversations about contributions and approving projects that were very confusing and also raised important First Amendment concerns. The court split 2-1 on whether his conviction was OK with three interesting opinions. Then we move on from bribery to iPhone use. By cops. Who use an iPhone to look into a car’s window. Was that a search? IJ’s Bobbi Taylor discusses a Second Circuit case that said it was not and neither was the touching of the car a seizure. It’s an interesting Fourth Amendment case where the court applies a famous case of Justice Scalia’s about searches and modern technology. The “reasonable expectation of privacy” test comes up as does the complete mess that the Fourth Amendment finds itself in these days. Click here for transcript. U.S. v. Sittenfeld U.S. v. Poller Kyllo v. U.S. Herculaneum scrolls Plunkitt of Tammany Hall

A long-time friend of the Institute for Justice, Robert Thomas, joins us this week. For years he’s litigated property rights cases across the country, lately for the Pacific Legal Foundation, and also blogged his adventures—and a whole bunch of other property rights news—at inversecondemnation.com. With some years since his last visit to Short Circuit, he comes back to discuss a recent North Carolina case where the legislature revived some claims after a statute of limitations had lapsed. Was that the taking of a “vested right”? The court is unanimous in saying it wasn’t, but how the two opinions got there in different ways is the most interesting part. Then, IJ’s Justin Pearson brings us to the fields—and feed lots—of Minnesota for a retaliation case where a farmer petitioned the state legislature. That leads into a discussion of “old property” versus “new property” and how we should think about their protections. Plus, law students interested in SCOTUS previews being held at their school should reach out to Justin. Those looking for a little “where are they now” can skip to the end. And fans of Thomas Hardy can enjoy the opening. Register for the Tavern Debate on March 28, 2025 in Westlake Village, California! RSVP for our 10th Anniversary Party and Show on April 3d in DC! Click here for transcript. Wagner v. Scheirer McKinney v. Goins inversecondemnation.com Bound By Oath episode on Pennsylvania Coal SC episode on the British Constitution Tess of the d'Urbervilles

Everyone agrees we need to build more homes. But what if those homes are going to be in your backyard? For some reason that possibility often leads to discoveries of endangered species. Ben Field of IJ joins us to report on an environmental case from the Fourth Circuit where the dispute came down to whether new homes would hurt a species of bat. The problem is no one had seen a bat. So are they really endangered? And what does this have to do with the famous snail darter “species” from a 1970s Supreme Court Case? Ben explains all. Then your host lays out how a case is “removed” from state to federal court and “remanded” back again. This issue came up in some opioid crisis litigation, also from the Fourth Circuit. Follow along as all the mysteries of the federalist system are revealed. Click here for transcript. S.C. Coastal Conservation League v. Corps of Engineers City of Martinsville v. Express Scripts TVA v. Hill Adam’s Legal Newsletter post on the snail darter Short Circuit episode on Mark Meadows case Short Circuit episode on PBMs Dracula Corleone, Sicily

You probably know that all-too-many jobs require a license to work. But how is that license administered, who enforces its rules, and who makes the decision on whether to take the license away? Almost always it’s a board composed of people with the same license. Rebecca Haw Allensworth joins us to discuss her new book The Licensing Racket: How We Decide Who Is Allowed to Work, and Why It Goes Wrong. Unlike other studies on licensing it digs deep into how licensing boards operate, what their incentives are, and how they are hard on outsiders who haven’t hurt anyone but all-too-easy on insiders who are truly bad actors. She tells stories of what makes boards act this way, how it relates to antitrust law, and what has and could be done to reform how we regulate professions. Also, did you know Tennessee used to have a “beauty pageant operator license”? Listen in to hear that story and much more. Click here for transcript. The Licensing Racket N.C. Board v. FTC ("The Case That Shall Not Be Named") Licensed to Work (3d ed.) Bona Law

Two cases, from the Fourth and Sixth Circuits, came out within just a few days of each other, and each was about a city tearing a house down. And whether that was OK. They came to different conclusions, partly because one seemed to have been litigated a bit better, but also for other reasons we discuss. First, IJ’s Christian Lansinger describes a Virginia property that wasn’t in great shape, but also where the officials didn’t act quite right before they tore it down for being a nuisance. Unfortunately, the owner sued too late for the court to address most of his claims. In Kentucky, on the other hand, the owner sued in time after being told he couldn’t appeal to the city’s property review board because although it’s mentioned in the city code, city officials told him it didn’t exist. The court was not impressed by this and allowed the case to move forward. Joe Gay of IJ brings this matter to our attention, along with an interesting concurrence about how our property rights have suffered from a slow boil. RSVP for our 10th Anniversary Party and Show on April 3d in DC! Listen to Bound By Oath! Click here for transcript. D.A. Realestate Investment v. City of Norfolk McIntosh v. City of Madisonville Robert Thomas’ blog post IJ’s Brody case The Wrong House by A.A. Milne

We welcome back Easha Anand of Stanford Law’s Supreme Court Litigation Clinic for her third (or is it fourth?) appearance. Last time she was on she had not yet argued at the Supreme Court, but now she’s done it four times. She tells us if it gets easier (not so far) and then gives a report on a recent Third Circuit case where the court got qualified immunity all wrong. In ruling on a malicious prosecution claim the court helped the pernicious doctrine of QI grow from just being about rights to about causes of action. Then IJ’s Anya Bidwell takes us up to the First Circuit for a civil forfeiture matter concerning 30,000 drug prosecutions that were thrown out and whether the federal courts can help those wrongfully convicted get their property back (“no” is the answer). Also, at the end (after some discussion of biker gangs) there’s some joking about how the Supreme Court has relisted two IJ cases. What your host and guests didn’t know at the time, though, is that the Court would grant cert in one of them just an hour afterward! It’s Martin v. United States, and we’re sure you’ll hear more about it in future podcasts. Click here for transcript. RSVP for our 10th Anniversary Party and Show on April 3d in DC! Rivera-Guadalupe v. City of Harrisburg Cotto v. Campbell Williams v. Aguirre O’Connor v. Eubanks How to Fix a Drug Scandal Policing for Profit grade for Massachusetts DOJ report on Springfield, Mass IJ page on Martin v. U.S. Tea-Cup Reading & Fortune-Telling By Tea Leaves

If you have a greenhouse, and a government agent sees it on Google Maps, is that fact probable cause to charge you with growing illegal cannabis, fine you $10,000 a day, and not give you a hearing for years? Humboldt County, California thought it was and threatened ruinous fines against innocent property owners for years in an abusive enforcement scheme. IJ represents innocent property owners in the county who had to take their case to the Ninth Circuit to move forward with their constitutional claims. The lead attorney, Jared McClain, joins us to detail the lawsuit and what the court said about the Excessive Fines Clause plus several other parts of the Constitution. Then, Andrew Ward of IJ takes us to the Fourth Circuit for a challenge to racial preference policies of the Small Business Administration. The case didn’t get to the merits because the court thought the plaintiff wouldn’t be eligible for benefits even without any racial preferences. In light of that there’s some discussion of how best to plead one’s case. Come to our 10th anniversary show and party in DC on April 3d! Click here for transcript. Thomas v. Humboldt (excessive fines) Thomas v. Humboldt (other claims) Hierholzer v. Guzman United States v. Bajakajian

A lot going on this week, including a lot of Short Circuit news. On the law side we talk about two recent opinions, one from the Fourth Circuit and one from the Sixth. Jeff Rowes of IJ explains the latest on abstention—Pullman abstention in this instance—where federal courts don’t do their job because state law is complicated. The Fourth Circuit said it wasn’t complicated enough, though, and allowed a religious liberties lawsuit to go forward. Then, IJ’s Brian Morris explains the latest news on net neutrality rules and why the FCC doesn’t get to decide them anymore. The Sixth Circuit won the lottery—literally—on where challenges to the latest rules would go. And once the challenges got there the panel of judges were not very impressed. There’s some discussion of the new post-Chevron world of Loper Bright, plus some discussion of how the internet worked in 1996, when Congress last spoke on this issue. Finally, we close with a reprise of a show we did a year ago about the Scottish poet Robert Burns! A real Scotswoman joins us to recite Burns’s “A Man’s a Man for A’ That.” But the biggest news this week is our 10th Anniversary! Join us to celebrate ten years of Short Circuit on Thursday, April 3, 2025 in Washington, D.C. The show (and party) will feature a slew of folks from IJ plus retired judges Diane Wood (Seventh Circuit) and Kent Jordan (Third Circuit), Adam Liptak of the New York Times, Professor Eugene Volokh, Dean of #AppellateTwitter Raffi Melkonian, and our old friend Clark Neily, now at the Cato Institute. We have a lot of seats, but they may go fast. Register here today! W.V. Parents for Religious Freedom v. Waldron In re: MCP No. 185 Railroad Comm. v. Pullman Loper Bright Enter. v. Raimondo Short Circuit 308: Burns Night A Man’s a Man for A’ That

Can state officers simply come on your land and take samples of your dirt (and water) without a warrant? Well, it’s hard to know when the court abstains from telling you. That’s what happened in the Sixth Circuit where a property owner went to federal court to stop an investigation but couldn’t because there was already a state court proceeding. Regular listeners will recognize an old familiar: Younger abstention. Mike Greenberg of IJ joins us to explain this convoluted story and how a case he litigated at the Michigan Supreme Court about drones plays a part in it. Then IJ’s Nick DeBenedetto discusses an en banc Fifth Circuit opinion about the SEC. The agency has to approve certain rules in private stock markets, but are there limits on what those rules can be about? Turns out hot-button diversity issues are a little too far afield. The Major Questions Doctrine makes an appearance, although in a new and perhaps unjustified way. And what does this whole system mean when private entities are beholden to the government approving their own rules? Click here for transcript. Satkowiak v. McClain Alliance for Fair Board Recruitment v. SEC (en banc) Bound By Oath episode with Professor Bob Williams Trading Places stock market speech

City council meetings are usually sparsely attended, low key, unwatched affairs. Except when they’re not. This week we have two cases where those in power were so offended by what members of the public had to say at a meeting that they were later arrested, in violation of their right to free speech under the First Amendment. Or that’s what the plaintiffs claim, anyway. First, Katrin Marquez of IJ tells us of a meeting in Texas of a “court” that wasn’t exactly a court but really a county board. However, that didn’t stop the “judge” who led the meeting from trying to find an audience member in contempt. Sovereign, judicial, and qualified immunities all raise their heads in the subsequent Fifth Circuit lawsuit, as does the First Amendment retaliation claim. Then, IJ’s Michael Peña brings us to the Sixth Circuit where a local citizen called for the termination of a city manager and later found himself under arrest. Was there a connection between the two? The court seems to think so, or at least enough that it lets the case move forward. Plus, with the close of 2024 we begin with a few words of remembrance of William “Chip” Mellor, IJ’s co-founder and longtime President who we lost recently. Register for the Tavern Debate on January 24, 2025 in Westlake Village, California! IJ’s statement on Chip Mellor passing away Diaz v. Cantu Blackwell v. Nocerini Bound By Oath on Monroe v. Pape IJ’s Iowa city council retaliation case IJ’s Alabama city council “no” vote retaliation case IJ’s Texas citizen journalist case

Seasons greetings from Short Circuit! While you’re enjoying your holiday week at the end of 2024 we’re giving you the content you need: Christmas sweaters. Don’t worry, there’s still plenty of legal stuff, but we start things off by delving into the mystery of where the Christmas sweater phenomenon came from. (Your host suspects it has something to do with Bridget Jones’s Diary the movie—but not, interestingly, the book.) If you’re on a non-YouTube platform, to give the episode full justice you might want to check out how the episode actually looks by peaking over at Short Circuit’s YouTube channel where you can see the panel’s fashion choices. As to the law, Bert Gall of IJ tell us of a Fourth Circuit case where some plaintiffs are trying to assert their voting rights by invoking Congress’s act readmitting Virginia to the Union after the Civil War. But that’s just in the background at this point as for now the court is just trying to figure out whether sovereign immunity prohibits the lawsuit. It turns out it does not. Then IJ’s Dan Knepper takes us into a mic-dropping DC Circuit case where the court declared void a slew of environmental regulations despite no party asking it to. Can judges do that? Reactions are mixed. King v. Youngkin Marin Audubon Society v. FAA The untold story of Mr. Darcy’s sweater Sweater scene from Bridget Jones's (movie) Sweater description from Bridge Jones's (book)

IJ’s Anya Bidwell guest hosts this special episode to ask what states and local governments can do to better protect their citizens’ rights, particularly when it comes to achieving justice in the courts. Professor Joanna Schwartz of UCLA and Kasia Symborski Wolfkot of the Brennan Center join Anya to dig into how a variety of laws and practices outside of Washington, D.C affect our rights. They discuss state legislative reform of causes of action and qualified immunity, the changing nature of state supreme courts, the limited involvement the Department of Justice has with local police departments, and other subjects. Plus, there’s information on how citizens themselves can make a difference, including the often-forgotten opportunity to serve on a jury. Click here for transcript. Civil Rights Ecosystems Lessons From New Mexico New Mexico Law Review Symposium State Court Report

We start with a case that ticks a lot of Short Circuit boxes: eliminating governmental immunities, state constitutions, preliminary injunctions, conniving public officials, mootness, and en banc news. So what happened there? Nothing. At least for now. Beyond the Brief’s (and IJ’s) Keith Neely details a long journey a group is having to take to get a state constitutional amendment on Ohio’s ballot. Ohio’s Attorney General has had a lot of problems with their paperwork. So many problems that, as Keith explains, “at some point you run out of stupid.” The case concerns the First Amendment but at bottom it’s about bureaucratic bad faith. Then we hear from IJ’s Josh Fox about a Second Circuit opinion with a default judgment and a prisoner. Unusually, it’s not a default judgment against a prisoner but one a prisoner won against a prison guard. This story from Fishkill, New York deals with what happens when a plaintiff loses their claim against some defendants but wins the same claim against another defendant through default. Is that OK? The district court thought it was and awarded the prisoner $50,000. But things weren’t so great on appeal. This leads to your host describing himself as a default judgment lawyer. Also, Josh answers the perennial question: What’s up with the Court of Federal Claims? Click here for transcript. Brown v. Yost Moore v. Booth Beyond the Brief’s YouTube channel Unpublished Opinions, Episode 9 Vogons

Notable—and quotable—Chicago lawyer Patrick Eckler joins us for a crash-course in Seventh Circuit paranoia (if you’re paranoid about jurisdictional questions at oral argument—which you really should be). A co-host of the Podium and Panel Podcast, Patrick gives a primer on how federal appellate judges look at things The Chicago Way and then explains how a recent oral argument went off the rails quite quickly. The resulting opinion about the Federal Arbitration Act and how it relates to Amtrak was pretty short, mostly because the lawyers seem to have forgotten they work for a railroad. Then Christie Hebert of IJ takes us on an up-and-down ride in the Eighth Circuit with a takings case (and a bit of Contract Clause thrown in) that despite its hopeful beginnings on appeal two years ago ends in a meaningless one-page opinion. Along the way she shares what she learned at the Supreme Court earlier this year in IJ’s property rights case, DeVillier. And, for those who can’t find such content anywhere else, there’s a spirited defense of Rule 12(c) motions. Click here for transcript. Montoya v. Amtrak Oral argument in Montoya Heights Apartments v. Walz (2022) Heights Apartments v. Walz (D. Ct. 2023) Heights Apartments v. Walz (2024) Podium and Panel Podcast (Apple) Patrick on LinkedIn The Railway Children Latest episode of Unpublished Opinions

We go online for some First Amendment content this week. First, IJ’s Jeff Redfern explains how the Eleventh Circuit concluded that CNN might be liable for defamation after one of its commentators said Project Veritas had been suspended from Twitter for “misinformation” when it had, in fact, very truthfully doxxed someone. That seems to pass the high bar of “actual malice” under the First Amendment’s free speech protections. Then Tahmineh Dehbozorgi of IJ brings us up to the Third Circuit where Section 230 immunity runs into a TikTok algorithm. Breaking with other circuits, the court says TikTok loses this one because the algorithm makes the content first-party speech, not third-party. It’s a ruling that could mean this issue is finally going up to the Supreme Court. What’s a “publisher” under the First Amendment vs. Section 230 vs. whatever? People are confused, the courts especially. Click here for transcript. Project Veritas v. CNN Anderson v. TikTok Techdirt article Still William, Chapter II

A couple friends drop by this week who have overstayed their welcome: Rooker and Feldman. Together they make up the Rooker-Feldman doctrine, a weed that has grown to crowd out justiciable federal claims in the federal courts. But the good news is that they aren’t the only friends on this week. We also have Wisconsin appellate attorney Joseph Diedrich who shares the story of his massive Seventh Circuit case which went en banc and Rooker-Feldman and now might go to the Supreme Court. Joe details the ins and outs of how a doctrine that is supposed to simply prevent appeals from state court to the lower federal courts has become a catch-all to get rid of deserving cases, including his case where his client is suing child welfare agents for violating her custody rights. Joe also shares some knowledge about how state courts work in Wisconsin, including a rule about dicta that it shares with the Ninth Circuit. Then IJ’s Arif Panju relocates us to the Fifth Circuit where the press was excluded from bail hearings before Texas state magistrate judges. This violates the First Amendment, it turns out. You’ll also learn a bit about where to find the best brisket. Click here for transcript. Gilbank v. Wood County Dept of Human Services (en banc) Texas Tribune v. Caldwell County Short Circuit episode on Sixth Circuit case Gilbank Cert Petition Stats on Wisconsin Supreme Court cases

Can the U.S. government use civil forfeiture in a U.S. court to take property in another country? One of IJ’s directors of our National Initiative to End Forfeiture Abuse, Dan Alban, reports on a rare forfeiture loss for the federal government when it tried to forfeit money in a bank account in the principality of Liechtenstein. The Ninth Circuit thought that was a bridge too far, although the various judges disagreed with each other on why. Then IJ’s Matt Liles updates us on the latest on Second Amendment challenges to the District of Columbia’s gun laws. If your jam is gunpowder storage, nineteenth century trap guns, Bowie knives on the frontier, and diagrams of centuries-old guns that belong in Terminator movies, we’ve got you covered. Click here for transcript. U.S. v. Nasri Hanson v. D.C. End Forfeiture The Parent’s Assistant

Did you know that you can be arrested for walking on the wrong side of the road? Neither did a Missouri police officer. Until he needed an excuse to put someone in handcuffs. Marie Miller of IJ details her recent victory at the Supreme Court—in a relatively terse, 20-word opinion—on behalf of her road-walking client after he lost at the Eighth Circuit, and how the First-Amendment-retaliation victory depended on an IJ case from last term, Gonzalez v. Trevino. Then IJ’s Anya Bidwell—who had something to do with that last-term victory—outlines a trilogy of recent opinions in the Eleventh Circuit where former federal officials have tried to remove their state criminal prosecutions to federal court. It may well be that one of the cases—involving former White House Chief of Staff Mark Meadows—has been taken by the Supreme Court by the time you listen. Also, in the podcast Anya says she’ll make a handy chart to help all of you navigate through the story. Well, afterward she actually did! Click on the link below to see it. Click here for transcript. Murphy v. Schmitt (8th Cir.) Georgia v. Clark Georgia v. Shafer Georgia v. Meadows (11th Cir.) SCOTUS docket for Meadows Short Circuit episode with Andrew Fleischman Ulysses Anya’s chart

Is a “fine” a “fine”? No, not at all, and therefore it can’t be “excessive.” At least that’s the IRS’s position. Thankfully that argument was rejected in a recent Eleventh Circuit case about a taxpayer who failed to file some forms and was subsequently fined—yes, fined—millions of dollars. IJ’s Sam Gedge explains this story and what fines the court thought were excessive and were not. We also look at the Ninth Circuit and an odd rule (that only exists there) which turns dicta into law. Jacob Harcar of IJ provides the holding and some well-reasoned portions of his opinion as well. Further, as a special treat, Jacob tells us of some work he’s done on legislative immunity and Reconstruction. Plus, do you know the difference between an acronym and an initialism? Whatever it is, we hope you won’t say the two flirted excessively. Click here for transcript. U.S. v. Schwarzbaum Stein v. Kaiser Foundation Health Plan Gorsuch dissent in Toth v. U.S. denial Timbs v. Indiana Short Circuit episode on dicta in 9th Cir. Jacob’s Section 1983 article Excessive flirting in Emma

With less than two weeks before America’s general election it’s time for our biennial dive into election law! A whirlwind tour of election decisions from the federal courts of appeals with a wide-ranging look at the legal disputes that arise before (and while) Americans cast their ballots. To guide us through the process we called upon Minnesota (and North Dakota) election law practitioner David Asp. He tells us what it’s like practicing in this “seasonal” specialty and what opportunities there are for attorneys to jump in and get courtroom and appellate experience. Then we dig into a Sixth Circuit case about foreigners and campaign contributions, a Ninth Circuit opinion about voter rolls, a Fifth Circuit decision on ballot collection, back to the Sixth Circuit for a flurry of opinions about RFJ Jr.’s quest to not be on a ballot, and finally to the Minnesota Supreme Court for what the heck “learned in the law” means. But we begin with the question of whether all that much has changed in politics in the last 100+ years. Click here for transcript. OPAWL v. Yost AZ Alliance v. Mayes La Union del Pueblo Entero v. Abbott RFK Jr. v. Secretary of State (MI Ct App) RFJ Jr. v. Secretary of State (MI Sup Ct) RFK Jr. v. Benson (6th Cir panel) RFK Jr. v. Benson (6th Cir en banc) MacDonald v. Simon Psmith in the City

When it comes to the law, it’s the responsibility of the government. After all, that’s why we have a government, right? Well, it seems the government is responsible for enforcing the law . . . until it would rather not. This week we have a pair of cases where different governments have wriggled out of their enforcement responsibilities in an effort to avoid a lawsuit. And in each case it worked. First, Erica Smith Ewing of IJ tells us of a rarity in the federal courts of appeals: A Contracts Clause lawsuit that was successful—at least, it was successful in stating a Contracts Clause claim. Later on, however, the city of New York “remembered” that it didn’t actually enforce the law in question—a pandemic-era rent-collection abatement—which lead to the plaintiff landlords losing their standing. There’s a silver lining for them—but it’s very much a lining. Then we’re off to the Tenth Circuit where IJ’s Paul Sherman explains Utah’s online age verification law and how the state designed it to only be enforced by private actors. Similar to the Texas abortion law which the Supreme Court tussled with a few terms ago, the statute’s intent is to get the state out of the enforcement business, and therefore get the courts out of the business of finding content-based restrictions on speech unconstitutional under the First Amendment. And it seems this attempt succeeded, for now. Click here for transcript. Unpublished Opinions podcast Bochner v. NYC Free Speech Coalition v. Anderson Whole Woman’s Health v. Jackson IJ amicus brief in Obamacare Charles Osgood’s Responsibility Poem

For the 8th year in a row Short Circuit travels to the University of North Carolina to preview the Supreme Court’s new term, hosted by our friends at the school’s Federalist Society chapter. IJ’s Justin Pearson serves as your host, and joining him once again, as he has for many years now, is UNC professor Andrew Hessick. They’re joined by IJ attorney Ben Field. First they educate us with a little trivia about cases that we’ll see this term and then dig in with a deeper preview of a couple matters the justices will soon hear argument on and a couple cert petitions that the Court has been considering. You’ll learn about the First Amendment’s history with the Internet, applications of the First Step Act, where things stand with speaking occupations, and the twilight status of the Bivens doctrine. Click here for podcast. Free Speech Coalition v. Paxton Hewitt v. U.S. 360 Virtual Drone Services v. Ritter Henning v. Snoden

“Twelve” isn’t just another word for a dozen or the original number of Apostles. It’s how many jurors sit on a criminal jury. Well, except in some cases. And one of those cases, from the Second Circuit, IJ’s Bob McNamara details to us this week. A New York man was prosecuted for making death threats to various broadcasters and politicians. Along the way the jury whittled down to 11 members. Which then found the defendant guilty. The Second Circuit said it’s all fine because it seemed clear the guy did it. But, as Bob explains, “juries do stuff.” Then it’s off to the Fifth Circuit for some different views of video. Anya Bidwell of IJ relates that one particular video demonstrates—or does it?—that a police officer may have been out of line and violated the Fourth Amendment with excessive force. All three judges on the panel write a take about a roadside encounter between police and a driver’s boyfriend that was imperfectly—or was it?—captured by a video camera. Two judges think this means the whole question should go to a jury. Another judge disagrees, and pines for qualified immunity. Click here for transcript. Spiller v. Harris County U.S. v. Johnson Scott v. Harris Scene from Twelve Angry Men

“Effects” isn’t a word that most people associate with “my stuff” these days. But that’s what it means in the Fourth Amendment. Our “effects” are protected from unreasonable searches and seizures just as much as “person, houses” and “papers.” Unfortunately, the D.C. police don’t agree and have been seizing people’s phones and other items and not giving them back even when they have no intention of prosecuting the property owners. Well, that may be changing because the D.C. Circuit recently issued a major decision recognizing that a “seizure” is ongoing as long as the police have your stuff in their possession. Michael Perloff of the ACLU argued and won the case and he joins us to discuss its ramifications. Several other circuits have gone the other way on the question, making it a prime issue for another court in Washington D.C. Also, Rob Frommer of IJ’s Fourth Amendment Project treats us to a qualified immunity/Fourth Amendment opinion from the Ninth Circuit about someone who was severely injured by foam baton round fired by a police officer. The judges address the extremely odd question of whether an officer gets the benefit of case law getting better for him after he commits a constitutional violation when it comes to qualified immunity. “Um, no” is the Ninth Circuit’s answer, which leads into a discussion of how qualified immunity may be changing. Click here for transcript. Asinor v. D.C. Sanderlin v. Dwyer Baby blood case Molly Brady’s “The Lost ‘Effects’” article

Economic liberty is in poll position. Or at least it won an early round victory in North Carolina. IJ attorney, and North Carolinian, Josh Windham reports on a recent ruling of the North Carolina Supreme Court about a racing track and the right to earn a living. Josh brings his knowledge of state constitutions and litigation tactics to tell this tale that began in the dark days of the COVID-19 pandemic. It also has a sovereign immunity angle that fans of IJ’s Project on Immunity and Accountability may enjoy. Then we have a special treat for fans of pizza—and, of course, that’s essentially everyone. What doesn’t include everyone, though, are those who enjoy having foreign websites track everything we do on our computers. Will Aronin of IJ tells us of a Third Circuit case that examines how various companies track users’ online activity while on the companies’ websites—including users ordering pizza. Is that tracking enough to mean you can sue the company in Pennsylvania? Well, we don’t know because the court didn’t allow the case to go forward. Will breaks it down while providing some strong views about invasions of one’s personal—and virtual—space, plus a throwback reference to shrinkwrap licensing. And did you know that on any given day 13% of Americans are eating pizza? Click here for transcript. Kinsley v. Ace Speedway Racing Hasson v. Fullstory, Inc. Shrinkwrap license case Short Circuit episode on Georgia economic liberty case Anthony on Advisory Opinions about Justice Holmes Dumas’ Marguerite de Valois

A special edition of Short Circuit Live where the Institute for Justice teamed up with the Texas Observer for a conversation about how local governments increasingly are retaliating against those who call them to account. The event took place in Austin, Texas on September 4, 2024, and was subtitled “Picking the man and then searching the lawbooks: How local governments turn to their criminal codes to silence critics.” It brought together the Observer’s Gus Bova, IJ’s Anya Bidwell, Texas journalist Jason Buch, and Texas attorney David Gonzalez. The discussion mentions several high-profile examples of local-government retaliation from the last few years, including IJ’s Gonzalez v. Trevino and a case that the Supreme Court may soon also hear, Villarreal v. City of Laredo. The confluence of journalists, a civil rights lawyer, and an attorney who has worked as a Texas special prosecutor make for a wide-ranging exploration that we hope you enjoy. Click here for transcript. Gonzalez v. Trevino case page Villarreal v. City of Laredo en banc Right on Crime Over Ruled by Justice Gorsuch Texas Observer

An extremely sad case, especially for man’s best friend (dog-lover discretion is advised!), and a happy case for property rights. First, the Center for Judicial Engagement’s new Assistant Director, John Wrench, brings us the latest in wild Fifth Circuit qualified-immunity stories with a domestic disturbance check gone bad—so bad that an officer is alleged to have shot two non-threatening dogs. A silver lining is that the grant of qualified immunity was reversed on appeal. Then Betsy Sanz hops aboard to ride the rails. She tells us of the Pennsylvania Supreme Court’s recent decision that the word “railroad’ doesn’t magically turn everything it touches into a public use. It’s a big Fifth Amendment takings case that prevented the use of eminent domain to build a railroad that would only service one party. It also brings to light another railroad-takings case that IJ is litigating in Georgia. Click here for transcript. Ramirez v. Killian Wolfe v. Reading Blue Mountain Bound By Oath episode on Pennsylvania and coal IJ’s Georgia railroad eminent domain case From a Railway Carriage

Part of the job description of a journalist is talk to public officials, gather information, and report on it. Unfortunately, that seems to be a crime in Texas. An unconstitutional crime, to be sure, but enough of a crime that the Fifth Circuit said there was qualified immunity for officers who arrested a citizen journalist for asking question of a source within a police department and reporting what she heard. JT Morris of the Foundation for Individual Rights and Expression (FIRE) joins us to discuss this loooooong running case and a pending cert petition at the Supreme Court. It involves the First Amendment, freedom of the press, the Fourth Amendment, arrest warrants, retaliation, and all kinds of Fifth Circuit drama. Then we move to the Eleventh Circuit where our own Anya Bidwell reports on an extremely strict version of qualified immunity that protected a forcible strip search made of a visitor to a prison without any probable cause. There are also concurrences disagreeing with the circuit’s own caselaw, including and one of our favorite staples: a Judge Newsom concurrence asking “what is the law?” Click here for transcript. IJ event with the Texas Observer in Austin on September 4! Short Circuit on YouTube Villarreal v. Laredo (en banc) Villarreal v. Laredo (panel) Villarreal cert petition Short Circuit 201 (discussing Villarreal panel opinion w/o dissent) Pentagon Papers case Gilmore v. Georgia Dept. of Corrections

One reason we have a Fourth Amendment is to be free from general warrants, permission slips for the government to search, well, everything. Is that what newfangled “geofence warrants” are? The Fifth Circuit thinks so, which is why it found one to be unconstitutional. Your host brings you the tale of a postal heist where the bandits were only found through a search of Google accounts—592 million of them. But was it a “search” in the first place? We hack into this high-tech matter. But first IJ’s Kirby Thomas West provides an example of special rules for government attorneys. The lawyers for some defendants in a civil rights case didn’t want to use qualified immunity, at least not before trial. But then the trial judge ordered them to. And then, by golly, they won. Was that, um, fair? Seems the Eighth Circuit thought it was hunky dory. Kirby, who has experienced much-less-forgiving judicial treatment while litigating on the other side, begs to differ. Click here for transcript. Webb v. Lakey U.S. v. Smith U.S. v. Chatrie

Anyone who has ever grown enraged after seeing their comment deleted from a Facebook page will find solace in this week’s episode. We examine a free speech tussle between the National Institutes of Health and the animal rights folks at PETA. IJ’s Michael Soyfer brings us this First Amendment case from the D.C. Circuit which said that blocking certain hashtags isn’t necessarily right even when the posters say mean things. But before that we look at interstate commerce and truckers. The Fifth Circuit isn’t happy about its interstate commerce caselaw, but it’s not the Wickard v. Filburn variety concerning the Constitution. No, it’s an overtime showdown between the Motor Vehicle Carrier Act and the Fair Labor Standards Act. Time travel with us to the days of Schechter Poultry v. United States with your guide, fresh off his pandemic hobby escapades, IJ’s Suranjan Sen. Click here for transcript. Escobedo v. Ace Gathering PETA v. Tabak Story of the Schechter butchers

A most unusual Fourth Amendment case this week: One cop claims there was a seizure while another says there was not. They disagree because one cop is suing the other. Guess which cop wins? It’s the one with the dog—named Thor—that got a little too eager in a cemetery while in hot pursuit. But apparently didn’t “seize” the other by mistakenly tearing into his leg. Dylan Moore of IJ brings us this canine caper from the Eighth Circuit. Then your host takes you to the en banc Fifth Circuit and tells a twisted tale of Jim Crow, felon disenfranchisement, the Eighth Amendment, and “evolving standards.” Historians of the 1890 Mississippi constitutional convention may want to take notice. Irish v. McNamara Hopkins v. Watson Short Circuit on Section 2 of 14th Amendment Puppy and I

Emphasizing the justice in our name, IJ recently launched a new project to fight back against zoning laws, Zoning Justice. We’ve been challenging overreaching zoning for years, but there’s now a new emphasis on how it inhibits people from providing housing and pursuing the American Dream. Joining us to talk about this new venture are the project’s leader Ari Bargil and IJ attorney Joe Gay. Joe tells us about some recent zoning reforms in Montana and an amicus brief he filed in the state’s supreme court supporting them. It recounts the history—and harms—of zoning and how allowing everyone to do more with their property doesn’t violate anyone’s constitutional rights. Then Ari tells us of an all-too-typical zoning dispute in Philadelphia where the neighborhood opposition to an attempt to rehab some apartments was anything but brotherly. Zoning Justice Project Amicus brief in MAID v. Montana In Re: 3401 Sky Properties, LLC Village of Belle Terre v. Boraas Bound By Oath episode on zoning (1 of 3) Short Circuit interview of Nolan Gray on Arbitrary Lines

It’s time for Short Circuit to head for the hills. Two cases from the mountainous Tenth Circuit, one on the Fourth Amendment and another on the Bivens doctrine. First, Bob Belden of IJ saddles up for a 911 call that may have led to the wrongful arrest of a Super Bowl reveler. What is enough evidence from an anonymous tip to stop a supposedly shady suspect? Not as much as was in a parking lot full of Broncos fans. Then your host gives an update on a terrorist who has been in prison for quite some time. He seems to have a good claim against his prison guards. But does the method for bringing that claim even still exist? And whether or not it exists can the government immediately appeal when a court says it does? It’s a quantum-mechanical question. U.S. v. Daniels Mohamed v. Jones In Search of Schrödinger’s Cat Free Fire by C.J. Box The Perfect Crime

We join forces with the law firm of Hogan Lovells to bring you some “legal mumbo jumbo”—an episode recorded at their offices in Washington, D.C. before a gaggle of law students. Joining your guest host, IJ’s Ben Field, are IJ attorney Kirby Thomas West plus two of Hogan’s finest, appellate attorneys Sean Marotta and Danielle Desaulniers Stempel. Danielle begins things with a Fifth Circuit opinion about silencers and standing. Apparently the plaintiffs were a little silent about any harms that have befallen them. Then it’s on to Sean for a lesson about what makes the world go round. Funnily enough, it’s not money but shipping containers. That is, as the D.C. Circuit recounts, until a federal agency starts tacking into shipping contracts. Finally, Kirby brings us up to the First Circuit for a story of TikTok, retaliation, and judicial opinions that maybe aren’t as funny as their authors think they are. Paxton v. Dettelbach Evergreen Shipping Agency v. FMC Macrae v. Mattos Short Circuit episode on standing

This episode is a First Amendment 2-4-1. We begin with James Dickey of the Upper Midwest Law Center (and former golf pro). James tells us about a recent case he argued at the Eighth Circuit concerning the “government speech” doctrine. If a public school lets some people—but not others with a different viewpoint—come in and hang posters is that just fine because it’s the “government” speaking? In keeping with some recent Supreme Court rulings, the court said no, letting the case go forward. Then IJ’s campaign finance guru Paul Sherman steps forward to tease out a confusing opinion of the Second Circuit about a New York law that allows big contributions to big political parties but much smaller contributions to much smaller groups. It seems the reasoning is that major parties are above suspicion. Can that be right? Paul doesn’t think so. Cajune v. Ind. Sch. Dist. 194 Upstate Jobs Party v. Kosinski Huizenga v. Ind. Sch. Dist. 11

The Fourth of July holds a central place in American history. The day patriots threw off the shackles of King George. Which is why it’s a little ironic that this year it’s the day the British are holding a general election to democratically chose their government. To cash in on this coincidence, this episode highlights some recent cases that reflect the heritage of 1776 and also Anglo-American relations of the present day. And, breaking our usual mold, we start with a case from the Supreme Court, SEC v. Jarkesy. Rob Johnson of IJ joins us to explain why this case is such a big deal for the right to a jury trial, and how the preservation of that right was one of the causes of the Revolution itself. Then, Andrew Ward of IJ tells a much more modern story of a burglary of a British diplomat’s Texas home. The burglar was caught and plead guilty. But he wasn’t pleased with a limitation on his right to “drink excessively.” Andrew tells the whole Fifth Circuit story, and also provides education on what exactly a “consul general” does these days. SEC v. Jarkesy US v. Woods Anthony’s piece “America is not British” British Constitution episode

Everybody knows that the government can’t take property from you just because it doesn’t like you. But what if the government says it actually wants to turn the property into a park even though everybody knows it’s because it doesn’t like you? Recently the Second Circuit said that was A-OK. We had on IJ’s Jeff Redfern, an attorney in the case, to talk about this example of eminent domain abuse and how it’s now potentially heading to the Supreme Court. It involves a family that wanted to build a hardware store and a town that did everything it could to stop them. After that we hear from Jason LaFond, a Texas litigator with some Texas-sized stories. Especially one from the Supreme Court of Texas, which recently ruled on whether it violated the Texas Constitution for the state legislature to get rid of some claims related to pandemic shutdowns and lost tuition. The case gets into originalism in state constitutions, how different constitutions in the same state relate to each other, and the continuing fallout of pandemic policy. Brinkmann v. Town of Southold Hogan v. SMU Cert Petition in Brinkmann Rational Basis with Economic Bite Ratification by Pauline Maier

Is “perceived speech” protected by the First Amendment? That straightforward question goes in a very complicated direction when a truck driver is fired from his government job. Christie Hebert of IJ joins us to explain this highly confusing tale from the Tenth Circuit. Then it’s pass-the-popcorn time with some Fifth Circuit drama, served up by IJ’s Rob Johnson. We heard in a recent episode about the objection to a transfer of venue in a challenge to a new rule about credit cards. Well, that same matter is already back at the Fifth Circuit concerning another attempt to transfer venue, replete with more intra-circuit squabbling. We also discuss forum shopping when it comes to nationwide injunctions. Avant v. Doke In re Chamber of Commerce (June 18, 2024) Short Circuit 319 Much Ado, Act III, Scene 1