Eugene Volokh's Blog, page 31

[Josh Blackman] Today in Supreme Court History: September 22, 2005

9/22/2005: Senate Judiciary Committee votes 13-5 to send Judge John Roberts's nomination to the full Senate.

Chief Justice John Roberts

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[Eugene Volokh] Monday Open Thread

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[Ilya Somin] Trump's Harmful and Illegal Plan to Gut H-1B Visas by Imposing $100,000 Fees

[The plan violates the relevant visa law. If allowed to stand, it would significantly harm productivity and innovation.]

The president recently issued an executive "proclamation" imposing a $100,000 fee on applications for H-1B visas. This would effectively end most such visas, which are used by tech firms and research institutions to hire immigrant workers and researchers with a variety of specialized skills. My Cato Institute colleague David Bier, a leading immigration policy expert, has a helpful summary of the policy and the harm it is likely to cause, if not struck down by courts:

President Trump is imposing a $100,000 fee to obtain an H-1B visa—the primary visa for skilled foreign workers. To be clear, this $100,000 fee is in addition to the salary, lawyer fees, and other costs of hiring an H-1B worker. This fee would effectively end the H-1B visa category by making it prohibitive for most businesses to hire H-1B workers. This would force leading technology companies out of the United States, reduce demand for US workers, reduce innovation, have severe second-order economic effects, and lower the supply of goods and services in everything from IT and education to manufacturing and medicine.

H-1B visa holders are extremely valuable contributors to research and innovation, and some have gone on to be world-leading scientists and industry leaders, making truly massive advances.

Defenders of the visa fee argue that, if these workers are so great, then it will be worth it for employers to pay the $100,000 price to get them. But a fee that high likely exceeds the average expected profit from one worker during the time he or she is going to work for the sponsoring employer.  There are individuals who produce much more than that, but such extraordinary success is hard to predict in advance. As I have argued previously, this is one of many reasons to avoid immigration restrictions and other government restrictions on labor mobility. In any large group of new workers, there are likely to be a few extraordinary innovators and entrepreneurs, but government planners cannot identify them in advance, and should not try. "Ordinary" workers are still useful, and the extraordinary minority who go far beyond the ordinary will become evident once given a chance. Keeping them out harms migrants and natives, alike, depriving both groups of the benefits of  scientific and entrepreneurial breakthroughs.

H-1B workers, it is argued, drive down wages for natives who compete with them. But, by that reasoning, any new entrants into the work force are bad for existing workers. The truth is that benefits to the overall economy and society far outweigh any detriment to direct competitors. We readily see this when it comes to new native workers entering the work force, and the same logic applies here. We should reject the zero-sum game "lump of labor" fallacy that assumes there is a fixed pot of labor opportunities. A dynamic economy helps new and old workers prosper together, bolstered by growth and innovation.  This is why deportations destroy more jobs for US citizens than they create, and the same is likely to be true for keeping out H-1B visa holders.

As David Bier notes, the new $100,000 fee is likely illegal, because the statutes authorizing H-1B fees only allow for fees to recoup administrative costs and some other types expenses. They certainly don't authorize anything remotely resembling a $100,000 fee.

Trump is trying to get around these constraints by relying on  8 U.S.C. Section 1182(f), gives the president the authority to "bar the entry of any aliens or of any class of aliens into the United States" whose admission he finds "would be detrimental to the interests of the United States." This is the same provision used to impose the anti-Muslim "travel ban" upheld by the Supreme Court in its badly flawed ruling in Trump v. Hawaii (2018).

But it is far from clear that Section 1182(f) and Trump v. Hawaii give the president a blank check to exclude any potential immigrants for any reasons he wants, or to impose any fees he wants. In 2020, as David Bier also notes, Trump tried to impose a similar ban on new H-1B visas, but a federal district court ruled against the ban. As the court pointed out, " there must be some measure of constraint on Presidential authority in the domestic
sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative."

The Supreme Court has repeatedly indicated that immigration is an area of legislative power. If so, there must be at least some constraint on how far it can be delegated to the executive.

In an article published in June, I advocated a nondelegation challenge to Trump's sweeping new travel ban barring all or most immigration from numerous nations. If Section 1182(f) really does give the president unlimited authority to impose massive fees on visa applications, overriding all other statutes, the same reasoning applies here.

in the same article, I also responded to arguments that the executive branch has inherent authority to impose immigration restrictions:

Prominent Founding Fathers such as James Madison and Thomas Jefferson rejected the notion that the federal government possessed any general power to restrict immigration. The Supreme Court only held otherwise in the Chinese Exclusion Case in 1889…. But if this governmental power does indeed exist – as longstanding Supreme Court precedent holds – the most plausible place for it is Congress. In the 1889Chinese Exclusion Case – that upheld the deeply racist Chinese Exclusion Act of 1882 – the Supreme Court stated that the authority belongs to "the legislative department…"

[A] few academics have argued that immigration power is actually an inherent executive power. Supreme Court Justice Clarence Thomas has suggested the same in a solo opinion joined by any other justice…. But this executive power theory makes little sense. If the president possesses inherent, virtually unlimited power to exclude non-citizens, there would be no need for the many congressional statutes that grant him some degree of authority to do so, going all the way back to the Alien Enemies Act of 1798, a wartime authority that Trump has been (illegally) trying to use to facilitate peacetime deportations without due process.

Under the inherent executive power theory, all such laws would become superfluous. The president could just exclude any immigrants he wants without any need for legislative authority. Indeed, there would be no need for Section 1182(f), either….

Since 1889, the Supreme Court has indicated that immigration restriction is a legislative power on several other occasions. For example, in Fiallo v. Bell (1977), the Court noted it "has repeatedly emphasized that over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens."  Such "complete" legislative power is incompatible with giving the executive a blank check to impose fees and restrictions.

I don't claim the current H-1B system is ideal. But improving it would make the visas easier to get and more flexible (e.g. - by making it easier for visa holders to switch employers). Trump's new policy would effectively gut them entirely.

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[Josh Blackman] Today in Supreme Court History: September 21, 1981

9/21/1981: Justice Sandra Day O'Connor is confirmed by the Senate, 99-0.

Justice Sandra Day O'Connor

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[Eugene Volokh] Sunday Open Thread

[What's on your mind?]

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[Eugene Volokh] David Kopel Makes the Oxford English Dictionary Examples

From the usage examples for the word Hitlerist; the quote is from David's post Data on Mass Murder by Government in the 20th Century:

2022
Although the party had explicitly Stalinist and Hitlerist roots, the deaths are not assigned to either ideology.
Newstex Blogs: Volokh Conspiracy (Nexis) 9 November

Big time! Reason also makes it with an example of "puppycide" (in an article by Radley Balko):

2006
When the speaker mentions that the government also slaughtered two dogs during the siege, eyes light up, the indifferent get angry, and skeptics come around. Puppycide, apparently, goes too far.
Reason Magazine

Just to be clear, these weren't the first examples; puppycide, for instance, goes back to 1865.

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[Josh Blackman] Today in Supreme Court History: September 20, 1968

9/20/1968: The New York City Landmarks Preservation Commission denied a certificate of no exterior effect to the Penn Central Transportation Co. The Supreme Court found that the City of New York did not violate the Takings Clause in Penn Central Transportation Co. v. New York (1978).

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Stuart Benjamin] The FCC Chair's Unprecedented, and Constitutionally Problematic, Response to Jimmy Kimmel

[And Trump's much more extreme one. [EV writes: I bumped this post from yesterday, because it struck me as especially timely and substantively valuable.]]

On Monday Jimmy Kimmel said:

We hit some new lows over the weekend with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them and doing everything they can to score political points from it. In between the finger-pointing, there was, uh, grieving on Friday − the White House flew the flags at half-staff, which got some criticism, but on a human level, you can see how hard the president is taking this. Yes, he's at the fourth stage of grief: construction. Demolition, construction. This is not how an adult grieves the murder of someone he called a friend; this is how a four-year-old mourns a goldfish, OK? And it didn't just happen once. And then we installed the most beautiful chandelier. Responses you wouldn't believe. Who thinks like that, and why are we building a $200 million chandelier in the White House? Is it possible that he's doing it intentionally so he can be bad about that instead of the Jeffrey Epstein list?

Yesterday, FCC Chair Brendan Carr said:

Public interest means you can't be running a narrow partisan circus and still meeting your public interest obligations. That means you can't be engaging in a pattern of news distortion.

It appears to be some of the sickest conduct possible. In some quarters, there's a very concerted effort to try to lie to the American people about the nature of one of the most significant, newsworthy, public interest acts that we've seen in a long time.

Frankly, when you see stuff like this — I mean, we can do this the easy way or the hard way. These companies can find ways to change conduct and take action, frankly, on Kimmel, or there's going to be additional work for the F.C.C. ahead.

A few hours after Carr's remarks, ABC indefinitely suspended Kimmel's show.

And this evening, Donald Trump said of broadcasters:

They give me only bad publicity or press. I mean, they're getting a license. I would think maybe their license should be taken away.

What Is the FCC's Statutory Authority?

47 U.S.C. 301 grants the FCC control over the radio spectrum and directs the FCC to grant licenses to use specified frequencies for a specified number of years. So wireless broadband providers, satellite television providers, local broadcast stations, etc. must obtain FCC licenses. Licenses are generally very valuable (broadband auctions for initial licenses have yielded more than $200 billion to the Treasury), and a licensee really wants to be able to renew its license and to sell it to someone else who will then be able to renew it (otherwise, the buyer would not pay very much). This creates two principal levers the FCC uses to control licensees.

First, under 47 U.S.C. 310 the FCC must approve any proposed transfer of a license as long as it finds that "the public interest, convenience, and necessity will be served thereby." This was the source of the FCC's leverage with respect to the CBS/Skydance transaction: CBS wanted to transfer the licenses for the local TV stations it owned, and the FCC had to approve. As readers know, the FCC did approve that transfer after (in the words of the FCC press release) Skydance committed not to have any DEI policies, to "ensur[e] that the new company's array of news and entertainment programming will embody a diversity of viewpoints across the political and ideological spectrum," and to invest new capital. And of course the FCC approved the transfer shortly after Stephen Colbert's show was cancelled – at a minimum creating an appearance problem (or an opportunity, for those who want future transferees to fear the FCC).

The second key source of authority is 47 U.S.C. 309, which specifies that the FCC can similarly deny renewal of a license if the FCC does not find that the licensee "has served the public interest, convenience, and necessity."

Is This Consistent with the First Amendment?

At this point a key question may occur to you: how can it be consistent with the First Amendment for any FCC renewal or transfer decisions to turn in any way on the content, much less the viewpoint, of a licensee's speech? Content-based regulation of cable television providers (whose systems often require rights-of-way from a government) or websites that transmit content via wireless frequencies would be subject to strict scrutiny, which is nearly always fatal, and viewpoint-based regulation is always invalidated. Indeed, even without the use of any rights-of-way or frequencies (which the Court never mentioned in its cable and internet cases), the Court would apply strict scrutiny. (And by the way, the Court has invalidated the regulation of knowingly false speech -- indeed, particularly offensive false speech, in the form of lying about receiving military medals.)

So how can the FCC look at content under sections 309 and 310?

The answer in the case law has been that in FCC v. Pacifica Foundation the Supreme Court held that broadcasting is subject to less rigorous First Amendment scrutiny primarily because it is uniquely pervasive, and secondarily because it is uniquely accessible to children. And in Red Lion Broadcasting Co. v. FCC, the Court allowed mandates that broadcasters host speech the government deemed valuable, based largely on spectrum scarcity. (Red Lion does not suggest that scarcity justifies restricting harmful speech, but rather justifies requiring broadcasters to air valuable speech.)

Denying a renewal or transfer based on viewpoint goes beyond Pacifica and Red Lion, and there is a reasonable argument that neither decision extends that far. Even if they did, it would not follow that the Supreme Court would permit such actions.

Pacifica and Red Lion have been subject to persuasive criticism for years. As to Pacifica, broadcasting is just another medium of communication. The government powerfully argued in cases involving cable television, the internet, and telephones, (all of which Congress chose to regulate) that those other media are just as pervasive, and just as available to children, as broadcasting, and in each case the Supreme Court rejected the government's argument and invalidated the regulation under strict scrutiny, making it harder and harder to defend Pacifica.

Regarding Red Lion, to quote from my Internet & Telecommunications Regulation casebook, "almost all resources —e.g., wires, labor, steel, land, and investment capital —are scarce in that (a) if given away at no charge people would request more of them than is available and (b) if we could create more of them, that additional increment could also be put to productive use." Indeed, in some respects radio frequencies are less scarce than land: the range of usable frequencies has increased more than 10-fold in the last 50 years – as if we had discovered 10 new usable Earths. And the Court declined the opportunity to apply Red Lion in later cases like Miami Herald v. Tornillo (newspapers) and Moody v. NetChoice (social media), making it harder and harder to defend Red Lion.

As Justice Thomas noted in FCC v. Fox,

Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity. The text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have done so in these cases.[Internal quotation marks omitted.]

FCC commissioners and staff are aware of the First Amendment problems with content-based FCC decisionmaking, and the broader governance concerns raised when government wields so much power. Indeed, the FCC repealed the Fairness Doctrine (whose legal hook was the threat of non-renewal) and later (after much prodding from the D.C. Circuit) the Personal Attack and Political Editorial rules (which were similarly predicated on the threat of non-renewal) on First Amendment grounds. And see the final block quote below. Many people (myself included) expect that if the Supreme Court squarely confronted Pacifica and/or Red Lion, it would overrule them.

But the costs for a licensee to challenge a non-renewal or transfer denial are very high. The Court has made it clear that only it can overrule its cases, so a licensee would face months if not years of delay on a transfer (often fatal to transfer deals) or on a renewal, with no guarantee of success. The obvious incentive is for the private party to do what the government wants. That is why Trump had leverage over ABC, leading it to settle a very weak lawsuit. That's how things work in lots of countries we don't want to emulate.

Would This Be an Ordinary Application of FCC Standards?

First things first: Trump said the quiet part out loud tonight – he thinks that broadcasters have been too critical of him and thus maybe their licenses should be taken away. That has never happened, and here's hoping it never will.

Now to Carr's stated focus – news distortion. First, it has been applied only to news shows (which of course Kimmel's show is not). Second, the FCC has created guardrails around it that seem to exclude Kimmel's monologue. As the FCC stated in rejecting a news distortion complaint against a Fox television station in 2007:

In evaluating whether an allegation of news distortion impacts the licensee's ability to serve the public interest, the Commission analyzes both the "substantiality" and "materiality" of the allegation. An allegation is "material" only if the licensee itself is said to have participated in, directed, or at least acquiesced in a pattern of news distortion. An allegation of news distortion is "substantial" if it meets two conditions: it is deliberately intended to slant or mislead; and it involves a significant event and not merely a minor or incidental aspect of the news report. It is sufficient for a petitioner to raise a "substantial and material question of fact" as to intent, and the Commission cannot require a petitioner to demonstrate "intent." However, the Commission determines in the first instance whether the evidence submitted raises a substantial question of fact.

Section 326 of the Act prohibits the Commission from censoring radio communications, and the First Amendment to the Constitution strictly limits the Commission's authority to interfere with the programming decisions of licensees. In light of these limitations, and because journalistic or editorial discretion in the presentation of news and public information is the core concept of the First Amendment's Free Press guarantee, "the Commission's policy makes its investigation of an allegation of news distortion 'extremely limited in scope.'" In showing an intent to distort, "[i]t is not enough to dispute the accuracy of a news report…or to question the legitimate editorial decisions of the broadcaster." Allegations of deliberate distortion must be supported by extrinsic evidence "such as written or oral instructions from station management, outtakes, or evidence of bribery." With respect to a report's accuracy in particular, the Commission has stated that it possesses "neither the expertise nor the desire to look over the shoulder of broadcast journalists and inquire why a particular piece of information was reported or not reported." To do otherwise "would involve the Commission deeply and improperly in the journalistic functions of broadcasters."

In the Matter of TVT License, Inc., 22 F.C.C. Rcd. 13591, 13592 (2007).

Third, the FCC has found distortion in only eight cases since 1969, and just once since 1982. Fourth, in none of those cases did the FCC revoke the license based on the distortion. A representative example involved a "letter of admonishment" that had no impact on the licensee (and proved to have no impact on its future renewals) despite the FCC

finding "repeated instances of deceptive programming broadcast by the station" in five different news programs over a two-year period. Deceptions included staff members concocting letters and phone calls that were presented on the air as having been issued from viewers, supposedly spontaneous questions by members of studio audiences which were prepared by staff members and fictitious interviews with various people misidentified as members of the public.

The only finding of news distortion since 1982 was a similar letter of admonishment in 1993 for NBC

staging a segment of a "Dateline NBC" report on unsafe gas tanks in General Motors trucks. The report showed video of what it called an "unscientific" test crash in which a GM truck exploded into flames after being hit from the side. GM's investigation found that NBC producers had rigged the test by attaching incendiary devices to the truck's gas tank.

The most recent attempts at news distortions were A) a claim, piggybacking on the state court determination in Dominion Voting System's suit against Fox News, that a Fox television station disseminated false statements about Dominion, and B) claims that CBS distorted the news by airing different footage of Kamala Harris's response to the same question on 60 Minutes and Face the Nation. The FCC rejected all these challenges shortly before Trump took office without holding any hearings, as it should have. It began all the orders by stating:

The freedom of speech and the press is enshrined in the First Amendment of the United States Constitution, and is necessary to promote the vigorous dialogue necessary in a representative democracy. When the government — including Congress, the Courts, and the Executive Branch (and States and local government) — seeks to curtail the freedom of expression on ""matters of valid public interest," doing so implicates the very heart of speech that the First Amendment is meant to protect. Accordingly, for nearly a century since the Commission's inception in 1934, the Communications Act has expressly prohibited the Commission from engaging in the "power of censorship," or issuing regulations or conditions that "interfere with the right of free speech." It has instead plainly recognized that "[b]roadcasters—not the FCC or any other government agency—are responsible for selecting the material they air" and that "our role in overseeing program content is very limited." Moreover, "the Commission does not—and cannot and will not—act as a self-appointed, free-roving arbiter of truth in journalism."

In the Matter of Preserving the First Amendment, Application of Fox Television Stations, LLC for Renewal of License of WTXF-TV, Philadelphia, Pa (Jan. 16, 2025).

(By the way, that last quotation was from a 2020 order rejecting a challenge to the airing of allegedly false statements about Covid-19 by President Trump and others.)

The only remotely analogous FCC action was Carr's decision, upon becoming chair, to reopen the challenges to CBS's handling of Kamala Harris's answers (but not to Fox's statements about Dominion). But it would take chutzpah for Carr to claim that his Kimmel comments are not unprecedented simply because he did something roughly analogous nine months ago.

The bottom line: treating Kimmel's statement as news distortion would be unprecedented. Indeed, that understates the point. The idea that his statement resembles anything the FCC has punished as news distortion is somewhere between strained and frivolous.

[Edit to make explicit that the first two limits on news distortion knock out application to Kimmel's monologue.]

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[John Ross] Short Circuit: An Inexhaustive Weekly Compendium of Rulings from the Federal Courts of Appeal

[A dogfighting legend, false positives, and 69 guns.]

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: An IJ victory for free speech over licensing.

Another week, another First Circuit decision denying a Trump Administration emergency motion to stay an injunction against dismantling a federal agency (here, four sub-agencies of HHS). Does this presage another trip to One First Street?By statute, Congress gives the President discretion both to parole immigrants into the country on a case-by-case basis and to terminate that parole. Biden Administration had a program that paroled in about 532,000 people from Cuba, Haiti, Nicaragua, and Venezuela for humanitarian purposes. Trump Administration revokes that parole en masse. Paroled immigrants sue and win a stay of that revocation in district court. First Circuit: Gov't by executive fiat cuts both ways. Stay vacated.Police follow a car with a broken headlight and taillight. When driver refuses to exit and resists officers' efforts to pull him out, police punch and tase him to get him out of car. Driver sues. First Circuit: Quickly escalating to punching and tasing without giving some time for driver to respond to lesser efforts crosses the line into being unreasonable and violates Fourth Amendment. But prior case law was sufficiently murky that officer gets qualified immunity."I wish that my son will grow up to be a legend in his chosen field." [Finger on monkey's paw curls.] First Circuit: This legendary dogfighting trainer's seven-year sentence for animal cruelty is affirmed.Traders bring anti-trust claims, alleging that Lloyds, Barclays, RBS, and others conspired to rig LIBOR. Second Circuit: Yeah, well, rates go up, rates go down. Do you have an injury?If you are a drug dealer texting other drug dealers, maybe don't consent to a search of your phone? (The Third Circuit is not going to care if you asked for a lawyer first.)In August 1978, five teenage boys disappeared in Newark, N.J., never to be found. Thirty years later, an Essex County cold-case unit secures a statement from a man who implicates his cousin in locking the five boys in a house and burning it to the ground. The alleged arsonist is arrested and tried for murder. And acquitted. Twist: His cousin later recants and avers that his inculpatory statement was coerced, false, and wholly concocted by two detectives. Qualified immunity for the malicious-prosecution claim that ensues? Third Circuit: Decidedly not. To trial the case must go.Thief stole 69 guns from gun stores—but says the restitution order stole from him, charging double for the same guns. Third Circuit: Agreed. Restitution can cover the guns' value but not lost sales on top. Victims get made whole, not paid twice.The 1870s weren't a great time for voting laws in North Carolina, featuring, among other innovations, a (maybe?) strict liability statute making it a crime for felons to vote. North Carolina: Yes, that original statute was shot through with racial animus. But we tweaked the predicate state constitutional provision in 1971, so the statute isn't racist anymore! Fourth Circuit: Yet you didn't amend the actual statute being challenged. The equal-protection taint remains unpurged. (And in a sign of great personal growth, your summarists will resist the urge to sigh resignedly at the presence of footnote seven.)Man under state felony indictment in Arizona travels to Maryland with a pistol, where he is arrested and federally charged with illegally transporting a gun across state lines. He argues that the charge violates his Second Amendment rights. Fourth Circuit: The Second Amendment applies to his actions, and a lot of the gov't's arguments are bunk, but disarming people under indictment isn't all that different from having them post a bond, so there's a historical precedent.During a roadside stop in Harris County, Tex., officer smells pot, calls for backup, and orders the driver out of the car. Instead, driver starts the engine and begins moving. Officer jumps on the hood and then shoots and kills the driver. Fifth Circuit (2024): Our hands are tied by our precedent. We thus rule in favor of the officer. SCOTUS (2025): Your precedent was wrong. Consider the totality of the circumstances. Fifth Circuit (2025): We agree, but the officer still wins.Allegation: Mentally ill Nashville woman calls police and asks them to come shoot her. The police come, tase her after a few minutes because the situation "wasn't going anywhere," and then do, in fact, shoot her. Qualified immunity? That's gonna be a no, holds the Sixth Circuit.The First Amendment provides a qualified right of access to the gov't's adjudicatory proceedings, says the Sixth Circuit, but no right at all to access non-adjudicatory proceedings, even when those non-adjudicatory proceedings are run by judges.Transgender professor at Kent State alleges that they were discriminated against because the university did not select them to lead its Center for the Study of Gender and Sexuality and denied the professor's request to transfer to a different campus. Sixth Circuit: Seems like, if they discriminated against the professor at all, it was because of the professor's extensive, profanity-filled public tirades against their colleagues and the university.Lawful permanent residents are allowed to make contributions and expenditures in federal elections but are prohibited from doing so in Ohio state elections. They challenge the Ohio law as a First Amendment violation, and the district court grants a preliminary injunction. An earlier Sixth Circuit panel stays the injunction. Sixth Circuit (per curiam): And now we hold plaintiffs are unlikely to win, for largely the same reason the last panel articulated. Concurrence (by two judges): We'd like to add that strict scrutiny is a mess! And the Privileges or Immunities Clause would help out a lot in cases like this. Dissent: This law violates the First Amendment.If the first paragraph of an opinion tells you the defendant has used either crack or heroin every day for 20 years, such as in this one from the Seventh Circuit, it's a good signal that his Second Amendment challenge to the federal law making it a crime for users of illegal drugs to have guns will fail.Eighth Circuit (over a dissent): We have held several times that officers cannot use more than minimal force against a person who is neither suspected of a serious crime nor threatening anybody nor resisting arrest, which means there is no qualified immunity for the officers who caused permanent nerve damage to a guy who was neither suspected of a serious crime nor threatening anybody nor resisting arrest. (IJ urged this result in a salubrious amicus brief.)In which the Eighth Circuit grants qualified immunity to two officers who were bamboozled into letting blackguards bogart a bloke's bike.Naifs in the audience might assume that this Ninth Circuit case asking whether Washington state medical regulators can punish a doctor for writing a newspaper column will be about the First Amendment, but loyal Short Circuit heads have already guessed it's about Younger abstention.In May, the Supreme Court stayed a preliminary district-court order delaying the revocation of the Temporary Protective Status of certain Venezuelan immigrants. Gov't: And the Supreme Court's earlier stay means we should get an emergency stay after the district court ruled against us on the merits! Ninth Circuit: We're not totally sure that one-paragraph stay means much of anything, so we're just going to do law stuff and see what happens.Nonprofits challenge provisions of the 2023 Arizona Elections Procedures Manual. One requires the Secretary of State to omit the vote totals of counties that do not certify their totals by a certain deadline following the election, the other purports to summarize the state's voter intimidation laws. Ninth Circuit: No standing to challenge the vote-counting provision because there's no way to know when or if it will apply to anyone. But the voter-intimidation provisions are too speech-y, so they're enjoined.This Tenth Circuit opinion holds that a case challenging a visa denial is mooted when the plaintiff gets a visa, but it also has a nice little discussion of when mootness at the en-banc stage requires vacatur of the panel opinion under Munsingwear, if that's your kind of thing. (If you didn't understand the end of that sentence, it's not your kind of thing, and that's probably a good life choice.)Public school ends multi-million-dollar contract with veggie farmer after he blasted COVID-19 and Black Lives Matter as "hoaxes" duping "lemmings." Farmer claims speech retaliation; school cites food-safety worries. Eleventh Circuit: the school acted to protect kids' lunches, not punish speech.And from the Court of Appeals for the Armed Forces we have a Brady violation (the rule that prosecutors must turn over potentially exculpatory evidence) in a case involving cocaine, Fourth of July parties, roommates, workout supplements, and false positives.

The Marshall family has owned property and passed it down in the East End of Freeport since 1940. Historically, this was because of redlining laws. Now their ownership is a symbol of resiliency and resolve. The Port of Freeport, however, wanted to take it via eminent domain. Do you know why? Neither did the Port! It just wanted to take the land and figure it out later. That's not enough under the Constitution and under Texas law. So IJ teamed up with the family and this week the Texas Court of Appeals agreed. "Private property cannot be imperiled with such nonchalance."

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