Short Circuit 358 | Motte-and-Bailey Game 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? Come to our Tavern Debate, Friday, Jan 24, 2025 in Westlake Village, CA! 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. 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? 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. 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. 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. 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