Short Circuit

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

Guest James Dickey discusses a recent case on government speech in schools. Paul Sherman critiques Second Circuit's reasoning on campaign finance laws. Topics include free speech rights, viewpoint discrimination, and contribution limits in politics.

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