Short Circuit

Vote early. But maybe don’t vote often? That’s the bottom line from Short Circuit’s biannual election special. With the 2026 General Election only days away, IJ’s Diana Simpson and your host bring you some of the latest cases from the federal courts of appeals on elections and political speech. There’s a polling place full of rulings on speech and paperwork burdens, what you can say about who can vote, the Founder’s fondness for anonymous pamphlets, the motor voter law, the Purcell principle, preliminary injunctions, prefilling voter applications, public records requests, and a real-life Twenty-Sixth Amendment case.

Minnesota Voters Alliance v. Ellison

AFP v. Meyer

AFP v. Albence

VoteAmerica v. Schwab

Grant v. Belangia

Red Wine & Blue v. LaRose

PILF v. Wolfe

PILF v. Simon

John Wrench is joined by Diana Simpson and Patrick Jaicomo to discuss the truly frightful! Like, what to make of the Supreme Court’s latest refusal to address whether the government needs to pay innocent people when it destroys or damages their property, and what can be distilled from the justices’ insistence on further “percolation” of the issue? Speaking of which, the Court will weigh in on a challenge to the federal ban on distilling spirits at home; might it rein in horrifyingly broad interpretations of the Necessary and Proper Clause? Finally, they speculate about law’s experiences with the spectral, including witness testimony about ghostly encounters and the practical challenges of selling a haunted house.

Diana’s Chicago impound case

IJ’s SWAT takings cases

McNutt at SCOTUS

Short Circuit visited the Tenth Circuit Bench and Bar Conference in Colorado Springs. Between gin and tonics at the Broadmoor hotel we heard from a number of Tenth Circuit experts about some interesting circuit cases and what makes their court a Perfect Tenth. You’ll hear about qualified immunity, gun rights, prisoner conditions litigation, the continuing ramifications of the McGirt decision for the federal courts in Oklahoma, law students arguing on appeal, and what goes on at the Tenth Circuit Historical Society. Get your Rocky Mountain High, feel the wind come sweeping down the plain, and learn that in some matters you actually are in Kansas anymore.

Tenth Circuit Historical Society

McGirt v. Oklahoma

The OG Tenth Circuit

If you’ve ever seen the 1971 flick “The French Connection” you may know a bit about hiding illegal drugs inside the bodies of cars. Someone else had the same background knowledge and so had installed a secret compartment in his minivan. The problem for him was the police already had a warrant to search his home and while they were executing the warrant they took his van. After taking it away they got another warrant and found the drugs and then took the van through civil forfeiture. The defendant argued there was no warrant for the van’s initial seizure and that it therefore violated the Fourth Amendment. Unfortunately for him, the Second Circuit upheld what the police did because of the “automobile exception.” Robert Fellner of IJ tells us the story and discusses the weird world of civil forfeiture, cars, and searches, that should trouble us even when it crosses paths with the not most sympathetic of folks. After that, IJ’s Andrew Ward tells us of an Eleventh Circuit matter addressing the right to raise one’s child and substantive due process. The opinion allows us to have a fascinating discussion about general matters of constitutional law but please be warned (especially parents with children listening) that some sensitive subjects come up.

RSVP for Short Circuit Live in Cambridge, Mass. on October 19!

U.S. v. Acevedo

Henry v. Sheriff

Short Circuit 369

The French Connection

Our annual Supreme Court term preview, this year from Wake Forest Law and released today, First Monday, the first day of the Supreme Court’s new term. IJ’s Justin Pearson is joined by colleague Paul Avelar and Professor Wilson Parker of Wake Forest. After a bit of SCOTUS trivia they preview two cases—about fair trials and guns—and then two cert petitions—about electronic searches and guns. Along the way you’ll learn about a few other cases coming the Court’s way, letting all of us get our kicks for OT26.

DOL v. Sun Valley Orchards

Viramontes v. Cook County

Thompson v. Wilson

U.S. v. Squire (5th Cir. en ban grant)

We’ve all seen the ads for prediction markets, like Kalshi, and some of us have even placed bets with them. But are they actually “bets”? That is, are they gambling? The Ninth Circuit addressed this issue as it relates to the Indian Gaming Regulatory Act and said that at least on the land of a tribe that operated its own gaming, what Kalshi does is gambling and is not allowed. IJ’s Kirby Thomas West takes us into the wild world of predicting vs. gambling and the related issues of whether federal law preempts state law on predicting/betting. But before that, Paul Sherman of IJ brings us exciting news from Georgia where its state supreme court ruled that a legal hemp-growing operation had a valid takings claim against authorities who damaged its crop (and cows) with a helicopter. The case concerns whether there is a “police power” exemption from takings protections and how courts often have tried to avoid takings claims by saying takings clauses only apply to eminent domain.

RSVP for Short Circuit Live in Cambridge, Mass. on October 19!

Blue 42 Organics v. Georgia DPS

Blue Lake Rancheria v. Kalshi

The Damagings Clauses

We focus on a district court case that has appellate court explanatory power. As our special guest Professor Robert Steinbuch says, if you reside in Arkansas you must be living in a cave if you haven’t heard of the Malinowski matter. The lawsuit concerns the tragic death of a man who was shot by the police in a raid after he shot first. His widow alleges the man did not know the people breaking into their house were police as they did not properly announce themselves. Because the police were ATF members, or task force members who were working with the ATF, the ability of the widow to sue for damages is limited. For constitutional claims that means a Bivens claim. For non-constitution (or are they non-constitutional?) claims that means the Federal Tort Claims Act. The court threw out the first route but kept most of the second. Professor Steinbuch and IJ’s Anya Bidwell explain what the court said, what was right and what was questionable, and who these issues mean for the larger debate, including efforts in state legislatures to provide alternatives to Bivens.

Malinowski v. U.S. (FTCA claims)

Malinowski v. U.S. (Bivens claims)

Docket for Nielsen v. Watanabe

Professor Steinbuch’s column on Malinowski case

Bound By Oath episode on Bivens claims

Say a gaggle of police with military-grade toys fire a boatload of tear gas into a home and then run in and break a bunch of stuff, all the while looking for a fugitive with no connection to the family that lives there. Do the police have to pay for the damage? That’s an issue that’s at the Supreme Court’s doorstep in a couple of IJ cert petitions. And along with those IJ has just issued a report about how many claims are actually made against the police for the destruction of property, how many are paid, and how much the claims are. We hope you enjoy a report on the report from IJ’s Jeff Redfern, who has litigated many of IJ’s SWAT cases. (And you can download the report itself at the link below.) Then it’s on to a Sixth Circuit case out of Nashville where the city waited on a request to build an apartment building even though the zoning was fine. Nick DeBenedetto of IJ tells us this story, with a happy (intermediate) ending on bringing a takings claim. Then we finish off with more from Jeff, this time concerning a D.C. Circuit decision about a Project Veritas scheme involving fake names, hidden cameras, a claim for fraudulent misrepresentation, the First Amendment, and a reminder to get that intern to actually sign a non-disclosure agreement.

RSVP for Short Circuit Live in Cambridge, Mass. on October 19!

The SWAT Report: Public Benefit, Private Burden

SW Nashville EB Owner v. Nashville

Democracy Partners v. O’Keefe

Time for The Big One. So many have so many takes on the Ninth Circuit that, as part of our #12Months12Circuits series, we at IJ had to add our own. It’s the mega-circuit that encompasses all of the West Coast, much of the Mountain West, Alaska, Hawaii, and even Guam and the Northern Mariana Islands. IJ’s Paul Avelar, who lives in the circuit, and Ben Field, who clerked there, share some details and war stories about the circuit that’s just too darn big. After that they analyze a couple recent, very-Ninth-Circuit-y cases. Paul shares a sovereign immunity matter where a host of plaintiffs who like their gas stoves sued a group of Washington State officials. Unfortunately, the court said they sued the wrong folks. There’s much talk about picking the right defendants and how you sue the government and how you can’t. Then Ben brings us to California where the state requires gun shops—including a gun shop inside someone’s home—to record video and audio 24/7 and must turn it over to the government if asked. The majority of the panel thought this was all just fine from both a First Amendment and Fourth Amendment perspective. Ben and the dissent disagree.

Rivera v. Sami

Richards v. Newsom

The U.S. Court for China

Another circuit recognizes a there’s a First Amendment right to record the police. In this case, a “First Amendment auditor” stood on a public sidewalk and recorded the outside of a police station for six-and-a-half minutes. That’s protected, says the Second Circuit. So far, so good. But, explains IJ’s Jared McClain, the fact the right exists wasn’t exactly clear to the officers who asked the “auditor” for his ID. So it was OK for them to interrogated him and arrest him when he refused to produce the ID. There’s a Fourth Amendment ruling on that as well that also doesn’t seem to make sense. Then it’s Section 230 time! Bobbi Taylor of IJ reports on an appeal Facebook took from a preliminary loss on whether it had immunity from suit. (Note: Facebook settled this case after we recorded the episode. The rest of the case against other defendants seems to still be going forward.) The Ninth Circuit rejected the appeal, ruling that Facebook and other tech company defendants may have immunity from liability but not immunity from being sued. That doesn’t allow an appeal before a final judgment in the trial court. Is that right? Some commentators disagree, as Bobbi tells us. We contrast that ruling with the fact that government officers can appeal denials of qualified immunity, unlike Meta. Also, fun fact you’ll learn from the episode: Jared and Bobbi performed the exact act from the Second Circuit case, recording the outside of a police building at dusk (for an IJ video). Luckily, no one asked for their IDs.

RSVP for Short Circuit Live in Cambridge, Mass. on October 19!

Massimino v. Benoit

California v. Meta

Techdirt piece on the Meta ruling

Episode on Section 230 with Mike Masnick

IJ video including a Broward County Sherif building

In our #12Months12Circuits series a nation turns its lonely eyes to the heartland. The true middle of America. The Eighth Circuit. We’re joined by true Eighth Circuit expert Aaron Van Oort, who has argued twenty-five times before that court and been a part of many other appeals. Aaron, who is based in Minneapolis, offers his advice about what makes the circuit stand out and where it’s going. He’s joined in that endeavor by IJ’s Sam Gedge, who clerked on the Eighth. Then, after some fun Eighth Circuit Facts we turn to a couple of the court’s recent rulings. Aaron discusses a recent matter he argued about noncompete contracts and financial advisors. The ruling came down to what “irreparable harm” means. As he explains, it’s important to understand that “irreparable” does not necessarily mean “irrevocable.” He also briefly shifts focus to the Seventh Circuit and shares a bit about how his old boss Judge Posner used to write opinions. Then, Sam brings us back to the Eighth and a free speech lawsuit challenging an Iowa law barring residential contractors from talking to insurance companies. What is “speech,” what is “conduct,” and what scrutiny should a court apply in a case like this are all strictly on the table.

Choreo v. Lors

Shamrock Hills v. Iowa

NIFLA v. Becerra

Tragedy and comedy, from the Fifth Circuit and then from the Tenth. First, Patrick Jaicomo of IJ describes how the police in Laredo, Texas mistakenly shot an innocent man. The plaintiff, who was hit in the abdomen but lived, was escaping a house where the real suspect was terrorizing his family. He grabbed the suspect’s gun, ran out of the house, held the weapon above his head and screamed “I’m not the shooter!” However, a cop claimed he didn’t hear the man and shot anyway. Patrick explains the court’s analysis and why it concluded this was not a Fourth Amendment violation—and why he sees a lot wanting in that conclusion. Then comes the comedy. IJ’s Sophia Henderson details how a library in Lawrence, Kansas instituted a policy of no signs inside the building. A patron objected and did so by holding signs—a few signs, some mere pieces of paper but one being a flag. The library repeatedly called the police and the patron make a federal case out of it. The Tenth Circuit concluded that there was no First Amendment violation. Sophia tells us that perhaps that’s the right outcome but she and the others nevertheless have questions. Sophia also provides to our YouTube viewers pictures of the actual signs from the opinion. Finally, for fans of fonts and typesetting there’s a closing discussion on why Times New Roman is terrible.

Martinez v. Hinojosa

Spiehs v. Morgan

We often hear of the right to speak. But what about the right to listen? The Ninth Circuit just reaffirmed that listeners have First Amendment rights too and that, like speakers, they can challenge censorship in court. Justin Pearson of IJ reports on a case he himself is litigating on behalf of both a listener and a speaker against the federal government. The feds ban truthful information about healthy foods via its labeling laws. Justin’s clients either want to learn information about healthy foods or produce healthy foods and communicate information about them to their customers. They are challenging the ban but hit a standing roadblock along the way. Now that the Ninth Circuit said the case can go forward, however, they can finally proceed to the merits. Yet, things were a bit different in the Fifth Circuit for a pair of challenges to short-term rental bans. IJ’s Ari Bargil returns to update us on litigation that’s been running for a long time and he first discussed on this podcast four years ago. Unlike before when the results were mixed, in these recent rulings the court completely ruled for the government, allowing cities, including New Orleans, to regulate short-term rentals in highly restrictive ways, giving short shrift to property rights, property owners, and facts.

Przybocki v. USDA

Marfil v. New Braunfels

Bodin v. New Orleans

Short Circuit 235

Short Circuit 401

Bound By Oath on Penn Central

Article on Penn Central’s drafting

Florida, man. Always fun when we touch base with the latest culture war issues in the Sunshine State. Which usually means we’re talking about the Eleventh Circuit. Which is what IJ’s Keith Neely does concerning the “Stope Woke Act,” the state’s attempt to prohibit the endorsement of certain “woke” views in, as applied in this case, its public universities. The court ruled the law was unconstitutional viewpoint discrimination when it comes to higher education. To get there, though, it had to weave its way through a confusing and somewhat contradictory set of cases about government speech, government employee speech, and academic freedom. After that we move to the Fourth Circuit where some Georgetown law students scored a victory for a Jamaican immigrant who tried to appeal an administrative decision but couldn’t because the court’s online docket system wouldn’t work and the clerk at the filing window wouldn’t take his papers. Ben Marsh of IJ, himself a Georgetown grad, details how the court ruled that such behavior isn’t on the due process up-and-up. And for fans of “where are they now,” we end with some updates on cases from Short Circuit’s past.

Burey v. Blanche

Pernell v. Comm. of the Fl. Bd. Ed.

Jouppi v. Alaska

Tim Sandefur joins us to discuss his latest (and tenth!) book “Proclaiming Liberty,” all about the Declaration of Independence, John Adams and Thomas Jefferson, and a whole lot more that is hard to fit into a subtitle. We discuss the “pre-history” of the Revolution from English constitutionalism and the Glorious Revolution of a century before, the role each man played in creating American constitutionalism, why the Declaration was written the way it was, and why it is “law.” Among many other issues.

Proclaiming Liberty: John Adams, Thomas Jefferson, and the Declaration of Independence

Tyrants and Rogues

Nature’s God

If you like stories of co-workers showing up at your door at night and threatening you and your family then we have the episode for you. This happened to a federal employee in Virginia. Shaken by the experience, he and his family then sued. The thing is, because his co-workers were also federal employees, and the threats seemed to be work related, he had to use the Federal Tort Claims Act. As IJ’s John Korevec explains, that meant he had a lot of roadblocks. And while some of those roadblocks knocked out some of the claims in the lawsuit, according to the D.C. Circuit some of them survived. It’s another piece in the puzzle about how the FTCA does not allow for a lot of justice—but does let some through at times. Then Prashanta Augustine of IJ takes us out to the Tenth Circuit for a ruling on Presidential powers. Recent administrations have gone back and forth on expanding and retracting areas of federal land to be “national monuments” under the Antiquities Act. Can those decisions be challenged in court? The feds claimed sovereign immunity. But the Tenth Circuit, in a case involving the Grand Staircase and Bear’s Ears national monuments, found an exception for “ultra vires” acts. That raised all kinds of tricky (and interesting!) problems involving equitable relief, jurisdiction, and the Presidency. NOTE: After we recorded this episode the Trump Administration once again retracted the size of these monuments, mooting the Tenth Circuit matter as it currently exists but allowing for all kinds of exciting new litigation where the sides are flipped.

He v. Rubio

Garfield County v. Trump

Update on the national monuments since we recorded

An old friend rejoins the show, the Horseracing Integrity and Safety Act of 2020. It’s been trotting around the federal courts of appeals for a few years now, truing to outrun the private nondelegation doctrine. The latest showing was at the Fifth Circuit a few weeks ago. Rebecca Furdek of the Wisconsin Institute of Law and Liberty joins us to survey the field and provide the odds on what may end up being a photo finish at the Supreme Court. Then we shift from horses to zombies with IJ’s Marco Vasquez. He takes us to the Fourth Circuit where the Seventh Amendment’s jury trial right ran up against an old and increasingly disfavored Supreme Court precedent. But not disfavored enough to not control the outcome of the case. Is it “zombie precedent”? And will it remain undead for long? We address these questions before turning to the latest in our #12Months12Circuits series with another old friend of the show, the Seventh Circuit.

Click here for transcript.

The Horsemen v. Black

Sligo Creek Ctr v. DHHS

1st HISA episode

Seventh Circuit Judicial Conference episode

If you like the drama of local politics you’ll love this story, told by IJ’s Christian Lansinger, from the Sixth Circuit. A colorful and controversial elected official was accused of not living in the city she represented, leading to an effort to remove her. In response she did prove she “lived” there—although “barely”—and then separately sued for First Amendment retaliation. Part of her claim related back to some comments she made about going together “like cocaine and waffles” before a Confederate flag. She loses her retaliation lawsuit (quite unsurprisingly) but how the court got there could affect other, more sympathetic, retaliation cases in the future. Plus, Christian updates us on the latest on the plaintiff’s situation. Then An Altik of IJ tells us of another Sixth Circuit ruling, this one involving Ohio’s requirement that kids have permission from their parents to use social media. The three judges on the panel can’t agree on much of anything but in the end the law is upheld. The various opinions discuss standing, overbreadth doctrine, content-based restrictions on speech, and vagueness. Plus the (limited?) evidence about social media and its harms to minors.

Click here for transcript.

Amacher v. Tullahoma

NetChoice v. Yost

Happy America’s 250th! To celebrate, we’re doing things the IJ Way, tying in the events of 1776 to something that emerged a few years later and that we at IJ work with every day today: judicial review. Therefore, although we’re jumping on the bandwagon and doing an “America at 250” episode like everyone else, this one focuses on something most people aren’t talking about for the anniversary—and certainly weren’t discussing in 1776.

But one thing Americans were discussing that year, in addition to how best to fight the British and declare independence, was writing constitutions. That was a new thing at the time, a new way of forming a government. It also lay the seeds for judges declaring laws “unconstitutional,” something that didn’t happen in the Old Country. IJ just held a conference on this subject and as part of that held a mock argument/moot court on a constitutional challenge under Pennsylvania’s constitution from 1776. The question was, is this new thing called “judicial review” actually a thing? Sam Gedge of IJ was part of that “case” and joins us to reflect on what he learned digging into the first principles of judicial review and what Americans in the years just after 1776 may have been thinking as they tried to figure out their new constitutional reality. Then your host shares the outline of a draft article on how American courts have used the shadow of the British parliamentary system when justifying judicial review. They did it a lot for the first century or so of the country’s history but since then not so much. Why is this? And does it have something to do with America becoming “Top Nation” as the sun slowly set on the British Empire? Fans of the ’85 Bears may enjoy an analogy. As might Dan Moreno.

Click here for transcript.

Video of the Mock Argument on Pennsylvania’s 1776 Constitution

Other video from the same conference

Vanhorne’s Lessee v. Dorrance

Draft article “Parliament’s American Shadow”

1066 and all that

The Super Bowl Shuffle, aka The British Empire

If someone sues you for money you get to defend yourself in court. Right? Not really if you sign a confession of judgment, a contract where you waive defenses to a later collection action. A county in Iowa had a policy of making prisoners sign confessions of judgment when they were released if they owed money to the jail. That seems like it might have due process problems. Does it? Well, we don’t know yet but the Eighth Circuit recently ruled that the released prisoners have standing to move forward in their case. Michael Soyfer of IJ takes us through this dispute where IJ and a number of other groups filed an amicus brief. Then, McCarley Maddock of IJ reports on a bizarre set of facts in Madison, Wisconsin where a man may—or may not—have fired shots after an argument with his wife. The police then come to his house, with a Bearcat, and begin a standoff where he, it seems, was fast asleep inside. Things go bad for the man after that, resulting in an arrest and later a federal lawsuit. That then fails because of qualified immunity, according to the Seventh Circuit.

Click here for transcript.

Roberts v. Thompson

Jackson v. Madison

Bound By Oath