Last Week in Federal Appeals (No. 29)
Last Week in Federal Appeals (No. 29)
Appellate decisions from the week of January 17-21, 2022
“If the only constitutional requirement for the government to compel citizens to host its speech on their private property is that it also permits them to post a second sign disagreeing with the first, the Sheriff could place any sign identifying himself as the speaker in any county resident’s yard. . . . When the government “compel[s] speakers to utter or distribute speech bearing a particular message,” as the Sheriff does here, such a policy imposes a content-based burden on speech and is subject to strict-scrutiny review. . . . All parties agree—as do we—that the Sheriff’s interest in protecting children from sexual abuse is compelling. However, the yard signs are not narrowly tailored to achieve that goal.”
~Chief Judge William Pryor, McClendon v. Long
Decision Summaries
Supreme Court of the United States
Hemphill v. New York
The Supreme Court, by a vote of 8-1, held that introducing evidence from a fellow suspect’s plea allocution violated the Confrontation Clause where that suspect was out of the country and unavailable for cross-examination. The Court rejected New York’s “opening the door rule” which would have allowed the State to introduce the allocution to correct a misleading impression created by the defense.
Justice Thomas dissented.
First Circuit
United States v. Davila-Reyes
On panel rehearing, the First Circuit held that Congress exceeded its authority under Article I of the Constitution when it extended the definition of “vessel without nationality” to reach some foreigners on foreign-flagged vessels. The panel explained that definition was inconsistent with international law.
Fourth Circuit
United States v. Moses
The Fourth Circuit held that interpretations in the official commentary to the U.S. Sentencing Guidelines are binding on federal courts, even where the text of the guideline is not ambiguous and appears to contradict the commentary. In doing so, the panel split with the Third and Sixth Circuits, which earlier concluded otherwise.
Ninth Circuit
McDougall v. County of Ventura
The Ninth Circuit revived a Second Amendment challenge to a COVID-19 closure order mandating that gun shops close for 48 days. The panel held that, because the order burdened the core of the Second Amendment, they warranted strict scrutiny. It explained that the County had not used the least restrictive means of protecting public health, pointing to other businesses that were allowed to remain open.
Judge VanDyke wrote a separate, somewhat caustic, concurrence predicting that the panel’s ruling would face en banc review and criticizing the Ninth Circuit’s current Second Amendment framework.
Eleventh Circuit
McClendon v. Long
The Eleventh Circuit held that the Butts County Sheriff’s Office violated the First Amendment when it placed signs reading “STOP NO TRICK-OR-TREAT AT THIS ADDRESS” in the front yards of the 57 registered sex offenders in the county. The panel held that this amounted to compelled government speech.
D.C. Circuit
City of Miami, Oklahoma v. FERC
The D.C. Circuit granted the City of Miami’s petition for review, reviving its administrative complaint about a FERC-licensed dam. The City claims that the dam causes periodic flooding in the city, and the panel found FERC’s reasons for rejecting the City’s claim “surprisingly unpersuasive.”
In the News:
Justice Breyer announced today that he is retiring from the U.S. Supreme Court.
The Supreme Court agreed to hear challenge to Harvard and UNC’s affirmative action policies.
A three-judge district court in Alabama held that a new congressional map violates the Voting Rights Act.
The Supreme Court refused to review a D.C. Circuit decision holding that former-President Trump cannot block the January 6 Commission from accessing some records.
State Decisions of Interest:
The Indiana Supreme Court held that the State’s revenge porn statute—which criminalizes distributing intimate images without consent—does not violate the free speech guarantees of the U.S. or State constitutions.
Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.
If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.
