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Grants, Denials, and the Funniest Amicus Brief You'll Ever Read

By William Peacock, Esq. | Last updated on

Another Monday morning, another orders list [PDF]. Who made the SCOTUS certiorari cut, and who didn't? There are a few notables on both lists, including a grant to a hand-written cert. petition.

Meanwhile, we have a competitor for most humorous amicus brief, with legal satirist P.J. O'Rourke joining forces with Ilya Shapiro at the Cato Institute to mock a particularly egregious Ohio Election law. The brief contains twenty pages of sarcasm, name-calling, and promoting of free speech and political satire over hurt feelings and terrible statutes.


Holt v. Hobbs: This is the petition that got everyone's attention this morning, as it was hand-written by an Arkansas inmate. (Constitution Daily has a copy of the petition.) The Court granted cert., then amended the order [PDF] later in the day to narrow the grant to a single question:

"Whether the Arkansas Department of Correction's grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq., to the extent that it prohibits petitioner from growing a one-half-inch beard in accordance with his religious beliefs."

North Carolina Board of Dental Examiners v. Federal Trade Commission: The board barred low-cost non-dentists from providing dental whitening services in favor of dentists. The FTC called it an antitrust violation, while the Board claimed that they were exempt under the state action doctrine.

The Fourth Circuit, pointing out that the board was made up of private actors, declined to apply the doctrine and upheld the FTC's ruling.

Integrity Staffing Solutions v. Busk: Should Amazon warehouse workers be paid for time spent, after their shift, waiting in line for security checks? Interestingly enough, the Court just denied pay for changing clothes before work. Is there a difference between pre-shift safety gear and post-shift security checks?


Farmers Branch, TX v. Villas at Parkside, et al.: A city's appeal on behalf of its immigrant housing ordinance is denied. According to Texas Public Radio, the ordinance would have made it illegal to rent or provide housing to undocumented immigrants.

ABC v. Aereo: This case was already granted certiorari, but Aereo competitor FilmOn X's motion for leave to intervene was denied. FilmOn (formerly known as AereoKiller) has had much less success in lower courts than their competitor, and will now have to root for Aereo, as a ruling in the case will likely bind FilmOn either way.

Cato's Truthiness Amicus

Ohio has a really stupid election law that prohibits false statements in campaign materials. It doesn't have exceptions for satire, or better yet, for "truthiness," a term coined by Stephen Colbert, meaning "a 'truth' asserted 'from the gut' or because it 'feels right,' without regard to evidence or logic." As Cato points out in its defense-of-truthiness brief:

"After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America? Voters have to decide whether we'd be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn't administered quickly enough to secular-humanist professors of Chicano studies."

The brief, while paying homage to the Colbert-coined concept, is a defense of political satire and free speech, which would be heavily restricted under the Ohio law. And, as the brief notes repeatedly, the Court recently held in United States v. Alvarez that there is no "general exception to the First Amendment for false statements."

Seriously, give the brief a read. It's the rare instance where humor actually works to advance a legal argument.

Update: it seems the Truthiness Amicus brief has convinced at least one official. The Ohio Attorney General has conceded to the Court that the state's election law is, in fact, an unconstitutional restriction on speech. For more, see our Sixth Circuit blog's coverage.

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