Short Circuit

We get a little high-tech this week. Techdirt founder Mike Masnick joins us to explain how Section 230 actually works, and how it was somewhat unusually applied in a recent Second Circuit case. (Mike’s explanation may differ from what a multitude of “experts” have recently been saying in Congress and elsewhere.) And have you seen any drones above your house? IJ attorney Josh Windham tells a story about a drone that flew above someone’s property, and thereby committed a “search” under the Fourth Amendment (well, the government in charge of the drone did). This very interesting case from the Michigan Court of Appeals allows us to talk about drones, reasonable expectations of privacy, and whether the air above your house is an “open field.” Click here for Transcript

The 10th Circuit just can’t make up its mind. You might say it doesn’t know a hawk from a handsaw. Listen to a tale from IJ attorney Jeff Redfern of judicial deference to the government, waiver (or not) by the government, and “vacation” of en banc review. Plus, the case is about machine guns (or not). Then IJ attorney Diana Simpson explains how the 5th Circuit packed an entire federal courts textbook into one little case about a ranch in Louisiana. The plaintiff scored a hit, but not a very palpable one. Register for the April 20th event on the 150th anniversary of Section 1983, https://ij.org/event/outragelegislation/ Transcript: https://ij.org/wp-content/uploads/2021/03/Short-Circuit-166.pdf Aposhian v. Wilkinson, https://www.ca10.uscourts.gov/opinions/19/19-4036.pdf Grace Ranch, LLC v. BP America Production Company, http://www.ca5.uscourts.gov/opinions/pub/20/20-30224-CV1.pdf Hamlet, Act. III, Sec. 1, ln. 51, https://www.gutenberg.org/files/27761/27761-h/27761-h.htm#tagIII_8 Josh Blackman, In Bump Stock Ca

How much power does the CDC have during the pandemic? Surprisingly, that was not the issue before a district court considering the constitutionality of the CDC’s eviction moratorium. Instead, it was how much power does the federal government have, virus or not. As Michael Bindas explains, that might have tipped the scales when the court interpreted the scope of the Commerce Clause. Out West, Alexa Gervasi walks us through the latest challenge to mandatory bar association dues. The Ninth Circuit says a Supreme Court precedent is on pretty shaky grounds these days, but as it’s the Supremes’ job to sort its own cases out, the lower court’s hands are tied. That’s true for the free speech claim, but on freedom of association there’s more wriggle room. Transcript: https://ij.org/wp-content/uploads/2021/03/Short-Circuit-165.pdf Terkel v. Centers for Disease Control and Prevention, https://files.texaspolicy.com/uploads/2021/02/25160210/045-Opinion-and-Order.pdf?utm_source=hs_email&utm_medium=email&_hsenc=p2ANqtz-_yj

New York police disciplinary records were a black box, until the state changed the law. Then the union sued to keep the lid on—but lost. We speak to Tiffany Wright of the Howard University Civil Rights Clinic, who argued the case at the Second Circuit on behalf of the reforms. Also, did you know the government can search your smartphone with absolutely no suspicion when you cross the border? That’s what the First Circuit says, at least. Adam Shelton breaks down this alarming ruling, which we’ll all want to keep in mind when leaving the country becomes a thing again. Transcript: https://ij.org/wp-content/uploads/2021/03/short-circuit-164.pdf Uniformed Fire Officers Association v. De Blasio, https://www.ca2.uscourts.gov/decisions/isysquery/81f5056a-e0f0-4128-9e1d-99a2c60ac224/1/doc/20-2789_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/81f5056a-e0f0-4128-9e1d-99a2c60ac224/1/hilite/ Alasaad v. Mayorkas, http://media.ca1.uscourts.gov/pdf.opinions/20-1077P-01A.pdf Tiffany Wright, https://www.orrick.co

For once living up to the 1980s-movie-sense of our name, we’re talking about robots. How should the law treat robots? What do we analogize to, the law of traditional machines? Animals? Something else? How should that law be “made,” by courts or by legislatures? And how does the Constitution interact with artificial intelligence? When a robot writes a novel is it “speech?” In a special Short Circuit, we look into all of these questions with our guest Ed Walters, founder and CEO of Fastcase, and an adjunct professor who teaches robot and artificial intelligence law at Georgetown Law School. Transcript: https://ij.org/wp-content/uploads/2021/02/short-circuit-163_otter.ai_.pdf Copyrighting all the melodies to avoid accidental-infringement, https://www.ted.com/talks/damien_riehl_copyrighting_all_the_melodies_to_avoid_accidental_infringement I, Robot, http://ekladata.com/-Byix64G_NtE0xI4A6PA1--o1Hc/Asimov-Isaac-I-Robot.pdf Ed Walters: https://www.law.georgetown.edu/faculty/edward-j-walters/ Anthony Sanders: https:

If you’re the State, what do you get when you put money owed to a prisoner in a special account, and then take most of that money out for yourself? You lose in federal court. Bob McNamara walks us through a particularly outrageous civil rights lawsuit from Connecticut. Plus, Anya Bidwell describes what happens when a judge is so involved in a case that he shows up at a deposition and also tells the plaintiff he will “crush” her. Transcript: https://ij.org/wp-content/uploads/2021/02/Short-Circuit-162_otter.ai_.pdf Williams v. Marinelli, https://www.ca2.uscourts.gov/decisions/isysquery/349211bb-2587-4c52-abe9-9be0f369fb1b/1/doc/18-1263_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/349211bb-2587-4c52-abe9-9be0f369fb1b/1/hilite/ Miller v. Sam Houston State University, https://www.ca5.uscourts.gov/opinions/pub/19/19-20752-CV0.pdf Anya Bidwell, https://ij.org/staff/anya-bidwell/ Bob McNamara, https://ij.org/staff/robert-mcnamara/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcast

A triad of important things in life are tweets, stateless vessels, and fonts. IJ attorneys Tatiana Pino and Patrick Jaicomo join your host Anthony Sanders to outline how a politician in the Eighth Circuit almost turned her Twitter account into a public forum, which would have prevented her from blocking anyone based on a viewpoint she disagrees with. Also, ever wanted to sail your own boat onto the high seas, free from any nation’s sovereign arm? Too bad. At least says the First Circuit to an unlucky mariner who happened to be transporting quite a lot of cocaine. Finally, Anthony takes us on a tour of the fonts of the federal circuits. Will others follow the Fifth Circuit’s lead and not pretend they issue opinions with typewriters anymore? Transcript: https://ij.org/wp-content/uploads/2021/02/Short-Circuit-161.pdf Campbell v. Reisch, https://ecf.ca8.uscourts.gov/opndir/21/01/192994P.pdf United States v. Aybar-Ulloa, http://media.ca1.uscourts.gov/pdf.opinions/15-2377P2-01A.pdf Patrick Jaicomo, https://ij.org/s

Even though ex-President Trump is off of Twitter, his tweets are still abundant in federal legal filings. IJ Senior Attorney Jeff Rowes explains the First Amendment defenses (spoiler: he thinks there aren’t many) Rudy Giuliani might have to the new lawsuit filed against him by a Canadian voting machine company. But if that’s not international enough for you, IJ attorney Kirby Thomas West shares the saga of a family that thought they were free from diplomatic immunity, but instead failed to obtain citizenship for a women who went on to fight for ISIS, and lost her passport in the process—a decision affirmed by Presidential Tweet. In the process your host Anthony Sanders explains how he never really thought about the “Reception Clause” before (which, unfortunately, has nothing to do with football). Transcript: https://ij.org/wp-content/uploads/2021/02/short-circuit-160.pdf Complaint in US Dominion, Inc. v. Giuliani, https://assets.documentcloud.org/documents/20463220/dominion-v-giuliani-complaint.pdf Muthana v.

When a judge asks you a question, it’s best to give an answer. We briefly discuss an oral argument that IJ Senior Attorney Rob Frommer had last week on South Carolina’s civil forfeiture laws, and listen to some non-answers his opposing counsel gave. Then it’s on to the Fifth Circuit where the court wrestles with a COVID-19 order shutting down Louisiana’s bars, and the Seventh Circuit where both the plaintiff and defendant have some unconventional positions on standing. If you’re playing Short Circuit bingo this episode has got you covered: “Lochner,” “rational basis,” “civil forfeiture,” “Twitter Laureate,” and “subtreasury.” Transcript: https://ij.org/wp-content/uploads/2021/01/Short-Circuit-159.pdf South Carolina Civil Forfeiture, https://ij.org/case/south-carolina-civil-forfeiture/ Big Tyme Investments, LLC v. Edwards, https://www.ca5.uscourts.gov/opinions/pub/20/20-30537-CV0.pdf Thornley v. Clearview AI, Inc., http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D01-14/C:20-3249:J:Ha

The Fourteenth Amendment’s Privileges or Immunities Clause resurfaces in the Seventh Circuit, where the State of Indiana treated some newcomers differently from some long-time residents. Meanwhile, an Arkansas school district augments a consent decree from the days of school desegregation. But there’s a question of whether it did so for the right reasons. Transcript: https://ij.org/wp-content/uploads/2021/01/short-circuit-158.pdf Hope v. Commissioner of Indiana Department of Correction, http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D01-06/C:19-2523:J:Rovner:aut:T:fnOp:N:2640105:S:0 Junction City School District v. Arkansas Department of Education, https://ecf.ca8.uscourts.gov/opndir/20/12/191340P.pdf Saenz v. Roe, https://supreme.justia.com/cases/federal/us/526/489/ Justin Pearson, https://ij.org/staff/justin-pearson/ Robert Peccola, https://ij.org/staff/rpeccola/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id30906201

How do you put together a campaign of litigation under various state constitutions across the country? And how to you get state courts to take their own constitutions seriously? On this special Short Circuit we explored these questions through the history of marriage equality litigation in state courts before the issue went to the U.S. Supreme Court. Joining host Anthony Sanders were Professors Lee Carpenter and Ellie Margolis of Temple University’s Beasley School of Law who recently wrote an article on this subject. They recount the history of marriage equality litigation and more broadly examine what to think about when litigating under state constitutions. Whatever the issue is that you’re fighting for—including a few we fight for at the Institute for Justice, such as eminent domain abuse and economic liberty—this is a fun “how to” conversation for public interest lawyers of all kinds. Transcript: https://ij.org/wp-content/uploads/2021/01/Short-Circuit-157-transcript.pdf One Sequin at a Time: Lessons on St

Is it time for the Supreme Court to spread some privileges or immunities cheer? Michael Bindas discusses a cert petition pending at SCOTUS on navigating the navigable waters, one of the few rights the Court has said the Privileges or Immunities Clause protects. He also tells us about a Ninth Circuit case on COVID orders and religious liberty. Meanwhile, Diana Simpson digs into a very deep dive of a First Circuit opinion on recording the cops in Massachusetts. Turns out the First Amendment protects it. Transcript: https://ij.org/wp-content/uploads/2020/12/short-circuit-156.pdf Courtney v. Danner, https://ij.org/case/lake-chelan-ferries/ Project Veritas Action Fund v. Rollins, http://media.ca1.uscourts.gov/pdf.opinions/19-1586P-01A.pdf Calvary Chapel Dayton Valley v. Sisolak, https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/15/20-16169.pdf Michael Bindas, https://ij.org/staff/mbindas/ Diana Simpson, https://ij.org/staff/diana-simpson/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcas

The first two items in the Bill of Rights get top billing. Does a nine-year-old felony conviction for tax fraud justify continuing to deny someone their Second Amendment right to keep and bear arms? That’s something the Third Circuit addressed, with a spirited dissent. Patrick Jaicomo discusses this case about the Second in the Third. Meanwhile, the Fifth Circuit recognizes that new law has come to light regarding the First Amendment, and that changes everything for Dr. Ron Hines, in his quest to bring telemedicine to our animal friends. Without the aid of a fifth, Ari Bargil gives us the history of quite a bit of speech and rational basis action over the last few years in Circuit Number Five. Transcript: https://ij.org/wp-content/uploads/2020/12/Short-Circuit-155-Edited.pdf Folajtar v. Attorney General (2d Amendment case in the 3d Cir.), https://www2.ca3.uscourts.gov/opinarch/191687p.pdf?mkt_tok=eyJpIjoiT1RjNU56ZzVZVGhoWXpkayIsInQiOiJwbkE1NUdDNmN4ZStQQmlNQWxlUEQ0QWUwanY0ZVp6QWF3ZCtGWGI1ajRqa2t2TzhTTkZUcFhzNW

Class action expert Ted Frank joins to discuss a Ninth Circuit case where the court didn’t think giving class members crummy coupons warranted almost $15 million in attorneys fees. IJ Senior Attorney Jeff Rowes then gets some religion about land use and how the Alabama Constitution protects Buddhists in starting a meditation center. iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org Transcript: https://ij.org/wp-content/uploads/2020/12/Short-Circuit-Episode-154-Edited.pdf Chambers v. Whirlpool Corp., https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/10/16-56666.pdf Thai Meditation Association of Alabama v. City of Mobile, https://media.ca11.uscourts.gov/opinions/pub/f

Ever seen The Wire? Do you think those cops could have seriously used a team of drones taking photos of Stringer Bell for 12 hours a day? Turns out so does the city of Baltimore itself, whose drone surveillance program was reviewed (yet upheld) by the Fourth Circuit last week. Also, the team discusses what the Washington State Constitution has to do with privileges or immunities in the dairy industry. iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org Transcript: https://ij.org/wp-content/uploads/2020/11/Short-Circuit-Episode-153-Edited.pdf Leaders of a Beautiful Struggle v. Baltimore Police Department, https://www.ca4.uscourts.gov/opinions/201495.P.pdf Martinez-Cuevas v. D

What is with up with the torrent of election law cases coming out these days? IJ’s Diana Simpson and Anthony Sanders are here to give you the scoop. Actually, quite a few scoops, served up in the circuit courts of appeals the last few weeks, and even a couple Supreme Court cases, and a state supreme court case, thrown in. Cut down on just a smidgen of election confusion while time for that is running short. iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org Diana Simpson, https://ij.org/staff/diana-simpson/ Anthony Sanders, https://ij.org/staff/asanders/ Wise v. Circosta, https://www.ca4.uscourts.gov/Opinions/202104R1.P.pdf Texas League of United Latin American Citizens v.

We don’t recommend converting apartments into condos in San Francisco. But if you do, it might be hard to bring a takings claim, as we find out why from a recent denial of en banc review in the Ninth Circuit. Meanwhile, the question at the D.C. Circuit is whether butterflies mix with walls. Specifically, The Wall. Turns out, the National Butterfly Center is an open field, so the Fourth Amendment doesn’t have much of a butterfly effect. But the butterflies do have a due process claim, at least for butterfly procedures. Also, next week stay tuned for our election law extravaganza. iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org Transcript: https://ij.org/wp-content/uploads

On October 16, 2020 the Center for Judicial Engagement is hosting a special online event, our forum on judicial engagement and the Pennsylvania Constitution. Register today at the link below to join in the state constitutional fun! (Plus free CLE for PA bar members.) In the meantime, we discuss a few recent Pennsylvania cases as the warm-up act for the forum next week. Recent cases on economic liberty and separation of powers under the Pennsylvania Constitution get co-equal time, and we also hypothecate (but only hypothecate) on whether a governor can veto a legislature’s attempt to appoint Presidential electors. iTunes: podcasts.apple.com/us/podcast/shor…uit/id309062019 Spotify: podcasters.spotify.com/podcast/1DFCq…Ehed/overview Stitcher: www.stitcher.com/podcast/institut…ce/short-circuit Google: https://podcasts.google.com/feed/aHR0cDovL2ZlZWRzLnNvdW5kY2xvdWQuY29tL3VzZXJzL3NvdW5kY2xvdWQ6dXNlcnM6ODQ0OTMyNDcvc291bmRzLnJzcw?sa=X&ved=2ahUKEwjTsdf7z5bsAhXbhXIEHWCfCZwQ9sEGegQIARAM Newsletter: ij.org/about-us/shor

For the fourth year in a row, the Institute for Justice has teamed up with the University of North Carolina Federalist Society Chapter to preview cases for the Supreme Court’s upcoming term. IJ’s Justin Pearson and Erica Smith join with UNC Professor Andy Hessick to share their wisdom on what’s interesting, and what may get even more interesting, in the months to come. iTunes: podcasts.apple.com/us/podcast/shor…uit/id309062019 Spotify: podcasters.spotify.com/podcast/1DFCq…Ehed/overview Stitcher: www.stitcher.com/podcast/institut…ce/short-circuit Google: https://podcasts.google.com/feed/aHR0cDovL2ZlZWRzLnNvdW5kY2xvdWQuY29tL3VzZXJzL3NvdW5kY2xvdWQ6dXNlcnM6ODQ0OTMyNDcvc291bmRzLnJzcw?sa=X&ved=2ahUKEwjTsdf7z5bsAhXbhXIEHWCfCZwQ9sEGegQIARAM Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org Transcript: https://ij.org/wp-content/uploads/2020/10/short-circuit-149.pdf Justin Pearson, https://ij.org/staff/justin-pearson/ Erica Smith, https://ij.org/staff/esmith/ Andy Hessick, https://law.unc.

In a special Short Circuit, Harvard Law Professor Molly Brady joins us to talk about an untold story from the rise of zoning law. A lot of the blame for our affordable housing crisis is often placed on the case Euclid v. Ambler Realty, where the Supreme court declared zoning (which includes prohibiting apartments) constitutional. But zoning was not the first try at limiting multifamily housing in certain neighborhoods. Professor Brady discusses how property covenants and nuisance law were employed to limit the availability of housing, and how when that didn’t work planners turned to the heavy hand of zoning. Along the way we discuss property deeds, spontaneous order, immigration, and the ever-beloved Coase Theorem. iTunes: podcasts.apple.com/us/podcast/shor…uit/id309062019 Spotify: podcasters.spotify.com/podcast/1DFCq…Ehed/overview Stitcher: www.stitcher.com/podcast/institut…ce/short-circuit Google: play.google.com/music/listen?u=0#…odkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us?