Delight in the newest issue of Short Circuit, IJ’s weekly briefing produced by a team at the Institute for Justice.
Qualified Immunity Victory! In April 2024, North Carolina sheriff’s deputies tasked with locating a suspected thief carried out a terrifying midnight raid on Avery Marshall and Alisa Carr’s home, pointing guns at the couple’s two children and ransacking the residence. Yet the warrant to search Avery and Alisa’s dwelling rested on false testimony, and the officers continued their search even after it became clear they were in the wrong house (the actual suspect was captured the following day in a different county). This week, a district judge rejected the officers’ qualified-immunity defense and allowed the case to proceed. Click here for more information.
New on the Short Circuit podcast: Challenging the Stop Woke Act, and Georgetown law students win an appeal.
- A Google report to authorities about a Washington, D.C. user’s account containing child sexual abuse material (CSAM). An officer views some images, then seeks a warrant for the rest and is told by a magistrate that a warrant isn’t necessary. The user moves to suppress the evidence as the product of an illegal search. The D.C. Circuit declines to resolve the circuit split over whether a warrant is required to view Google’s records, deciding that the officer was permitted to rely on the magistrate’s determination. In a concurrence, the writer agrees that no warrant was necessary and opts to use the statutory term “child pornography” rather than acronyms.
- Beware of a poorly drafted statute! After British American Tobacco paid $653 million for sanctions violations related to North Korea, the government deposited only a modest portion into the U.S. Victims of State-Sponsored Terrorism Fund because only a small portion of the wrongdoing occurred while North Korea was designated a sponsor. Victims of Iranian-backed terrorism argue more should have been paid into the Fund. The D.C. Circuit: apart from policy arguments, the statute’s text directs all penalties for sanctions violations into the Fund.
- Puerto Rico’s broadly framed law criminalizes false statements connected to a governor-declared state of emergency. Journalists challenge it on First Amendment grounds. The First Circuit holds that there is no general First Amendment exception for false speech, and the statute is too expansive to satisfy constitutional standards.
- When ordering meals through apps like DoorDash, Grubhub, or Uber Eats, the platforms collect various consumer data, while the restaurant only learns your first name, the last initial, and the order. New York City contends that this is unfair and requires the apps to share all customer information with any restaurant that asks. The apps sue, contending the statute infringes the First Amendment. The Second Circuit agrees. In a concurrence, the author notes that the law amounts to naked economic favoritism toward restaurants, and that it does not advance a substantial government interest.
- The Supreme Court has famously (and with some doubt) described the design on state vanity license plates as “government speech” not subject to the First Amendment. But what about messages formed by character combinations on plates like “FTP ATF”? The Fourth Circuit holds that such personal messages are private speech and thus fall under First Amendment protection.
- A heartening note for the Institute: “Article IV protects the right to pursue a common calling on equal terms.” (The Privileges and Immunities Clause of the Constitution.) Texas limits its escrow-officer licensing to its own residents and to residents of neighboring states. Because that rule is likely unconstitutional, the Fifth Circuit grants a preliminary injunction to an Illinois man who wants to extend the scope of the license to include Texas residents.
- If a Texas property owner does not want firearms on their premises, a guest who brings them may face criminal liability—provided the owner has clearly communicated the ban, either orally or via a sign with bold lettering in both English and Spanish. Plaintiffs contend the signs are unattractive. The Fifth Circuit (en banc) determines that the plaintiffs lack standing to challenge enforcement against others. A dissent argues that there is no rule governing the appearance of signs excluding pets, and that this omission itself causes a harm.
- New Orleans, a city famed for festivity, proves thorny for property owners who rent to short-term visitors. The Fifth Circuit (2022) held that a short-term rental ordinance requiring on-site operators violated the dormant commerce clause. The Fifth Circuit (2025) held that a ban on property ownership by rental businesses violated equal protection. The Fifth Circuit (2026) suggests that once those provisions are removed, a limit of one license per block and a general licensing scheme are acceptable.
- A Texas prisoner claims that the way his prison is run leaves him unable to sleep more than about four hours a night. He sues. A long time ago. The district court insisted he had no claim, while the appellate court repeatedly reversed and remanded, explaining that the Eighth Amendment analysis had been flawed. This week, the Fifth Circuit did so again, eighteen years after the alleged sleep problems began.
- A U.K. citizen living abroad applies for a professorship at the University of Cincinnati. Internal disputes over gender lead to nobody being hired. He contends Title IX violations. The Sixth Circuit concludes that Title IX protections apply only to individuals in the United States.
- Could an appellate court ever remark about a Michigan lawyer—“in the sands of this litigation, his involvement has left hardly a trace”? After nearly every claim in a home-equity theft case was rejected in district court, the attorney later succeeded on appeal with a brief copied from a pro bono firm, while his 999 billed hours were trimmed down to about ten. Other lawyers seeking fees fared slightly better. A concurrence criticizes the majority for not going far enough.
- A man believes he has been wrongly placed on the FBI’s Terrorist Watchlist and its Selectee List, facing additional screening. He files redress inquiries with DHS, which close the cases and refuse to confirm whether he’s listed. He sues. The Seventh Circuit (per curiam) allows his challenge to the listing to proceed, but bars a challenge to the redress process. A three-judge concurrence notes that every circuit that has considered whether the term “order” includes “regulations” in the past fifty years has answered in the affirmative; consistency is there—though not necessarily correctness.
- “FODMAP” refers to certain sugars that some people cannot digest. A food company wants to include truthful, accurate information about its products’ FODMAP levels on labels, and at least one customer would welcome seeing that information while shopping for low-FODMAP options. But federal law prohibits it. A district court finds no standing; the Ninth Circuit finds standing. The case proceeds, largely intact. (This is an IJ case.)
- Bad Spaniels returns to the spotlight after its Supreme Court appearance and a series of moves between the Ninth Circuit and district court. The Ninth Circuit ultimately holds that Jack Daniel’s’ trademark-dilution claim fails. Bad Spaniels’ dog-poop-themed squeaky toy is unlikely to harm the venerable whiskey brand’s reputation.
- Does an AI company violate the Computer Fraud and Abuse Act when its AI agent accesses Amazon’s site without permission? The Ninth Circuit answers no—the access is performed by the user, not by the company that created the AI tool (or the browser or operating system). The preliminary injunction is dissolved.
- Is punishing unregistered foreign agents for speaking on the Kremlin’s behalf a First Amendment issue? The Eleventh Circuit says no, since the registration trigger depends on acting at the government’s direction, regardless of the content.
- Eleventh Circuit (en banc): Florida’s law criminalizing the admission of a minor to adult live performances isn’t unconstitutionally vague because its definitions align with the Supreme Court’s Miller framework, even if the precise meaning of that framework remains murky. A dissent warns that Florida businesses are now subject to a broad, “mess-around-and-find-out” First Amendment doctrine.
- Eleventh Circuit (unpublished): The court sympathizes with a wrongly arrested plaintiff, but notes that the officers were trying to interpret a protective order—see the accompanying image for context.
- And in en banc developments, the D.C. Circuit is largely deadlocked on a messy dispute over Biden-era greenhouse-gas-reduction grants that the Trump-era EPA attempted to terminate after a divided panel previously sided with the government. The preliminary injunction against termination remains in effect as the case proceeds.
- In related en banc news, the Sixth Circuit plans to revisit its ruling that the FCC’s updated consumer-privacy rules for telecommunications providers fall within the agency’s statutory authority.
Never-Say-Die Victory! In 2001, IJ challenged Oklahoma’s law granting licensed funeral directors a monopoly on casket sales. Although identical laws have been struck down by the Fifth and Sixth Circuits, the Tenth Circuit in 2004 upheld Oklahoma’s rule, famously remarking that “while baseball may be the national pastime of the citizenry, distributing special economic benefits to certain in-state industries remains the favored pastime of state and local governments.” This has vexed us for two decades, so this year we filed another suit arguing that the law violates the state constitution. Last week, an Oklahoma state court refused the state’s motion to dismiss our new case. Read more here.
