Short Circuit

Is speaking to a yoga class speech? The Ninth Circuit recently proclaimed that the answer to that question is actually “yes.” But before you turn away from this episode because it simply parrots Captain Obvious, please know that it was not so obvious to the district court. Or the city of San Diego, which tried to define the teaching of yoga—but not the teaching of anything else—in public parks as conduct, not speech. Teaching all kinds of other things was fine, but teaching yoga to four or more people could land you in a twisted position. Paul Avelar of IJ gives some erudition on how the Ninth Circuit relied on a case that he litigated a few years ago to bring the First Amendment to the yoga instructors of California. Then IJ’s Marco Vasquez drives us to Arkansas where some hemp producers challenged the state’s ban on most hemp products. The challengers make a lot of hay out of the allowance for “continuously” transporting hemp through the state. Along the way the Eighth Circuit has to deal with a scrivener’s error. And what is one of those again? Hubbard v. San Diego Bio Gen v. Sanders IJ’s Brief in Chiles v. Salazar Bartleby, The Scrivener

Who doesn’t love a nice beard? It seems the firefighters in Atlantic City. One of their employees wants to wear a beard because of his religion. He doesn’t actually fight fires as part of his job, but there’s a possibility he’d be told he needs to and therefore he supposedly can’t have a beard because his special air mask wouldn’t fit. Does this violate the First Amendment’s protection of free exercise? Matt Liles of IJ reports on this case from the Third Circuit that digs into how “generally applicable” a law must be to not target someone’s religious practice. Then IJ’s Bob McNamara discusses a scary subject: statutes of limitations. Blowing one is every litigator’s nightmare. But which statute of limitations applies in a given case? For claims brought under Title IX, a federal ban on sex discrimination, that’s unclear. Bob breaks down a Fourth Circuit opinion that had to figure out what South Carolina law applies to Title IX claims in a case where a high schooler sued a school for not stopping sexual harassment. Is it a special state law on suing governmental entities? Or is it the most general state statute of limitations? Bob tells us the answer but also advises that this would all be a lot easier if Congress did its job and provided its own statute of limitations. Smith v. Atlantic City E.R. v. Beaufort County School Dist. Employment Division v. Smith Pogonologia

We at the Institute for Justice are increasingly involved with combatting retaliation against free speech. Which is why we were highly interested to hear from Daniel Cragg and his recent win at the Eighth Circuit. Dan is a Minneapolis attorney who regularly sues the government for all kinds of things. This particular case was about a doctor who made a few remarks that weren’t very politically popular at her place of work—a public hospital—at the height of the pandemic and cultural ferment in 2020. She lost her discrimination and retaliation claims at summary judgment but the Eight Circuit sent the retaliation claim back for trial. It also called her other claims “interlocutory.” We discuss the free speech issues at the heart of the matter but in addition your panel perplexes about how the court could think the other claims were interlocutory, considering the appeal was from a final judgment. Then Michael Bindas of IJ discusses a recent Ninth Circuit en banc opinion about a police shooting. The interesting thing to Michael’s eyes is how a concurrence treated a pair of substantive due process claims invoking the case Pierce v. Society of Sisters, which just celebrated its 100th anniversary. The panel dig into what the right recognized in Pierce has to do with a child’s claim for losing a parent, and what Plato’s Republic has to do with it all. Gustilo v. Hennepin Healthcare System Estate of Hernandez v. L.A. Pierce v. Society of Sisters Cato’s event on Pierce, including panel with Michael Meyer v. Nebraska at 100 Plato’s Republic (Book V)

Is making someone file a form “in the public interest”? The Fifth Circuit took a look at that age-old question in a recent case regarding the FCC and its gathering of demographic data. What might seem like a small issue opens the door to how the administrative state works, where agencies get their power, and how narrow the courts are reading those powers these days. IJ’s Bob Belden explains the twists and turns of this story that goes back several decades. Then Nick DeBenedetto of IJ walks us through a habeas case from the Sixth Circuit with a wild story about a murder—or was it a murder?—of a wife by her husband and whether the conviction was tainted because of the background of a detective. The detective, it turns out, told all kinds of lies to get hired before he investigated the defendant. Did those lies affect the conviction enough to violate the Constitution? See if you can render your own verdict. National Religious Broadcasters v. FCC Widmer v. Okereke Rebels on the Air by Jesse Walker

With the recent major tariff rulings we had to pull in a major tariff expert, Scott Lincicome of the Cato Institute. Scott digs into the “shocking decision,” as even he puts it, from the Court of International Trade declaring many of the recent “emergency” tariffs unlawful. He takes a look at what’s behind the opinion and what’s next as the case goes on appeal to the Federal Circuit and perhaps also to the Supreme Court. The law the tariffs are justified under might not even allow for tariffs, but ruling that way means the courts will have to not give the substantial deference to the President in these kinds of matters that they often have given in the past. Both the Major Questions Doctrine and the Nondelegation Doctrine loom and there’s some gaps that need to be filled. Then IJ’s Jeff Rowes describes a victory for free speech in the D.C. Circuit where the Attorney General of Texas tried to use a consumer fraud statute designed to remedy things like “defective air conditioners” against a journalism organization. Even though the court upheld a preliminary injunction, Jeff argues that the very fact the law was used in this way in the first place, in conjunction with the rich and powerful, is an ominous First Amendment warning. Plus, we dig into some “where are they now, updating cases from recent episodes. This includes one where IJ is trying to have applied to the states one of the last bits of the Bill of Rights that the Supreme Court has missed: The Seventh Amendment’s right to a civil jury trial. Click here for transcript. Call for Papers for our conference on Declarations of Rights from 1776! VOS Selections v. U.S. Media Matters v. Paxton Scott’s conversation with Rick Woldenberg from the DC tariff case Scott & Clark Packard’s study on tariff powers from last year IJ’s Seventh Amendment incorporation cert petition Corn Law Rhymes & Other Poems (1833) The Taxed Cake

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)

Casey Mattox, Vice President for Legal Strategy at Stand Together, and Arif Panju, an attorney at the Institute for Justice, dive into riveting legal battles. They unwrap the nondelegation doctrine through the quirky case of a dirt biker in Nevada, challenging how much power federal agencies can wield. The conversation also highlights ongoing struggles for free speech rights, especially at universities, as they analyze a significant challenge to restrictive speech codes. Expect sharp insights into the balance of legal authority and individual freedoms!

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