Short Circuit

What’s too hot a novel for a prisoner? Apparently “Pride and Prejudice: The Wild and Wanton Edition” meets that standard. The Eighth Circuit dug into this prurient issue and essentially said it violates the First Amendment to ban modern and Renaissance art in prison, but not to ban fan fiction. Rob Johnson takes us through a wild and lustful tale of free speech law, including the court’s bizarre discussion of when overbreadth claims are moot. Then your host Anthony Sanders spins a yarn about a wild night out, implied consent laws, and Section 1983 not being very useful if you’ve already got your license back. Parents, make your own choice, but this might be a good episode not to have younger children listen to.

Sisney v. Kaemingk, https://ecf.ca8.uscourts.gov/opndir/21/10/202460P.pdf

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019

How can the government encourage us to keep our trees? In all kinds of ways, but not through mandating the replanting of trees regardless of the landowner’s mitigation efforts. At least that’s what Wesley Hottot reports the Sixth Circuit said last week. There’s also a little excessive fines talk, which is worth your time as Wesley is kind of “the excessive fines guy.” He’s also a birdwatcher, which comes in handy in this tree case. Meanwhile, there’s some trouble on the sidewalks of New York, especially as it relates to a federal statute protecting “places of worship.” Dan Rankin of IJ tells us the Second Circuit thinks that might be many locations, but not a sidewalk. There’s also some Commerce Clause talk and what’s a “substantial effect” on commerce these days.

F.P. Development, LLC v. Charter Township of Canton, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0240p-06.pdf

Kirtland’s Warbler, https://www.allaboutbirds.org/guide/Kirtlands_Warbler/id

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019

What did Alexander Hamilton tell the Marquis de Lafayette on July 21, 1780? Probably not that his letter would be the subject of a civil forfeiture case. Yet that came to pass in the First Circuit, and IJ attorney Bob Belden explains why it turns out the family that owned the letter were throwing away their shot. Meanwhile in the Second Circuit a fire on a movie set turns into a First Amendment retaliation claim. Kirby Thomas West joins us not to warn of the dangers of shouting fire, but what a fire chief who is your boss might do to you if you speak up on other topics.

Specht v. City of New York, https://www.ca2.uscourts.gov/decisions/isysquery/69832f88-a75b-4fd5-b4ef-89041b7ff601/1/doc/20-4211_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/69832f88-a75b-4fd5-b4ef-89041b7ff601/1/hilite/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019

It’s taken five years, but the clients of IJ senior attorney Paul Avelar can now finally get their day in court thanks to a ruling in the Ninth Circuit. Paul joins us to explain why it takes so long to just try and vindicate your rights, and how Arizona’s (thankfully former) civil forfeiture system allowed prosecutors to keep people’s property over and over again, including, at first, his client’s car. Meanwhile things got SALT-y in the Second Circuit where whatever you think about the state-and-local-income-tax deduction the court says it’s not constitutionally guaranteed. Former New Yorker and IJ attorney Will Aronin uses some family-friendly yet SALT-y language to describe the state’s high taxes and it and a few other states’ successful efforts to have standing, but unsuccessful attempts at anything else.

Transcript forthcoming.

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019

Frustrated with the deeply complicated issue of homelessness on Los Angeles’s skid row, a district court took the law into its own hands and ordered a lot of stuff to happen. One problem (of many) with that was the plaintiffs didn’t ask for the stuff. So it wasn’t too hard for the Ninth Circuit to reverse, as Jeff Rowes explains. He and his colleague Diana Simpson also discuss their own work on homelessness issues at the Institute for Justice and how the law often prevents small solutions to a very large problem. Diana also explains why you’re unlikely to have an insurance policy that covers the pandemic, as a colorful Sixth Circuit opinion tells us about a usually colorless subject. Finally, your host learns that asteroids actually have killed some people.

IJ’s Fall 2021 Legal Intensive in Chicago, https://ij.org/opportunities/students/legalintensive-fall2021/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019

Mike Chase, author of “How to Become a Federal Criminal” and the man behind the @CrimeADay Twitter account, joins us to lay out the Eighth Circuit’s take on Congressman Devin Nunes suing people he doesn’t agree with. IJ attorney Diana Simpson then explains how an especially talented prisoner has won two cases at the Ninth Circuit over the cold turkey tactics of his jailers. Mike also relates to us some of his experiences representing prisoners and how they often have very meritorious claims.

Nunes v. Lizza, https://ecf.ca8.uscourts.gov/opndir/21/09/202710P.pdf

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019

For the fifth year in a row the Center for Judicial Engagement travels to the University of North Carolina School of Law to preview the upcoming Supreme Court term. Once again there’s trivia, deep dives on a couple cases about to be argued, and a couple cert petitions. Professor Andy Hessick battles IJ attorney Justin Pearson for top SCOTUS trivia dog and your host Anthony Sanders enjoys the first LIVE Short Circuit since the world shut down.

Cummings v. Premier Rehab Keller, PLLC, https://www.scotusblog.com/case-files/cases/cummings-v-premier-rehab-keller-p-l-l-c/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019

Ever rolled your tires to try and cover up the meter maid’s chalk mark? No, me neither . . . But even if you haven’t, you might not have to worry about tire chalk marks much longer. Josh Windham explains how the Sixth Circuit has said that’s an unreasonable search. And out West it turns out there’s so much law in Yellowstone National Park (the Wyoming bit, at least) that a camper gets out of an assault charge because of a law called the ACA (just not the one you’re thinking of). The camper didn’t commit the Perfect Crime, but Dan Alban talks about it while he’s in the district.

IJ’s Will of the People Conference, https://ij.org/event/does-the-will-of-the-people-actually-exist/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019

The Third Circuit allowed a Second Amendment case challenging Robinson Township’s new zoning ordinance to proceed. Did they town change their zoning laws just to prevent a gun club from fulling opening? Possibly, we’ll have to wait and see. But in the meantime, Andrew Ward walks us through this decision exploring just which level of scrutiny applies to Second Amendment challenges. And there was a very colorful dissent in the Ninth Circuit from Judge VanDyke. Patrick Jaicomo explains this dissent and its problems with the Ninth Circuit’s binding dicta rule.

Drummond v. Robinson Township: https://www2.ca3.uscourts.gov/opinarch/201722p.pdf

Ford v. Peery: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/18-15498.pdf

IJ’s Conference on the Will of the People: https://ij.org/event/does-the-will-of-the-people-actually-exist/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019

Usually a “chill” on your freedom of speech is the easiest constitutional injury to prove. But in the Tenth Circuit it seems if you speak too much you’re not “chilled,” and therefore not “injured,” even if you’re breaking an unconstitutional law. Adam Shelton walks us through this chilling brain teaser. Meanwhile, when is competition “unfair”? Alexa Gervasi explains that in Massachusetts it was not unfair for Uber to compete against taxicabs when its own right to operate was, shall we say, a grey area. Plus, some nostalgia for the halcyon days of 2013 when getting in a ridesharing car was something you didn’t tell your mother.

Transcript forthcoming.

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019