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9th Circuit December 2014 News

Injunction Violated: Sea Pirate Hippies Aid Foreign Cousins

It's the oldest trick in the book. Your parents tell you not to do something, so you have your brother do it for you.

That's the gist of what happened here. Last year, we brought the tale of the sea pirate hippy bench-slapping, a master class in insulting multiple parties in a single judicial opinion by none other than the great Judge Alex Kozinski. The Kozinski-helmed majority issued an injunction ordering the Sea Shepard Conservation Society to stay away from certain (alleged whaling) ships.

Sea Shepard kinda-sorta complied: They gave their ships and equipment to foreign branches of their organization, which, of course, engaged in activities that would have violated the injunction had Sea Shepard USA done them itself.

Looking Back at 2014: The 10 Most Popular Posts From the 9th Cir.

I love the Ninth Circuit. In 2014, there was not a more interesting or unpredictable docket on the planet. The Ninth Circuit dealt with many hot-button issues such as concealed carry, free speech on YouTube, and the Hobby Lobby fallout.

What did you find most interesting? Our 10 most popular posts covered all of the above topics, plus judicial gossip, nominations, and more:

Free Speech Rights Won't Protect Porn Producers From Condom Law

In 2012, Los Angeles voters passed an initiative requiring adult film performers to wear condoms while filming. This, predictably, drew the ire of porn studios, producers, and stars, all of whom had adhered to a biweekly STD testing protocol to address concerns about the health risks of unprotected sex.

The artists' and studios' main argument was a creative one: a First Amendment free speech right to have condom-free sex on camera. This argument failed at the district court level and again yesterday, with the Ninth Circuit holding that any incidental effects on expression were outweighed by the evils the law was meant to address -- sexually transmitted disease transmission.

Did the 9th Cir. Just Change the Rules of Gadget Searches at Borders?

After he appeared suspicious at a border checkpoint in California, border patrol agents searched Chad Camou's car, in which they found Alejandro Martinez-Ramirez, an undocumented immigrant. But this case isn't even about Martinez-Ramirez.

Nope. It's about child pornography.

The border patrol agents took Camou's cell phone, then started rifling through it an hour and 20 minutes after his arrest. The agent was looking for evidence of smuggling, but found child pornography instead.

9th Cir. Skeptical of Standing in Idaho NSA Surveillance Suit

On December 8, the Ninth Circuit heard oral arguments in the case Smith v. Obama, in which a nurse from Idaho, Anna Smith, challenged the NSA's warrantless collection of phone metadata as a violation of the Fourth Amendment.

Yes, there was talk about Smith v. Maryland. Yes, there was talk about the Fourth Amendment. Actually, though, we've seen this movie before. If you can even get to the merits, it's likely a violation and probably distinct from Smith v. Maryland, which was a short-term, targeted investigation. What's more important to this case is whether Anna Smith even has standing to bring the case.

Calif. Concealed Carry Case Gets Sua Sponte En Banc Call

The parties to the case didn't want en banc review. Other non-parties (California Attorney General Kamala Harris and the Brady Campaign) wanted en banc but were denied leave to intervene, because they were non-parties who waited years to jump on board to the case when they could've been part of the case all along.

But not to worry, firearm fearers: En banc is still a strong possibility. Despite nobody with a stake in the case calling for it, at least one of the circuit's many judges called for en banc review sua sponte (H/T to The Volokh Conspiracy.)

Arizona AG Agrees to Stay Enforcement of 'Revenge Porn' Law

Back in May, Arizona joined a host of other states in criminalizing "revenge porn," defined there as the distribution of a nude depiction of another adult without the other's consent. Arizona's law made it a class 5 felony, and a class 4 if the person was recognizable, meaning a sentence of six months to three years depending on the offense.

Such laws have been introduced, or enacted, in 28 states. Civil liberties groups, however, contend that, as written, they suffer from some serious constitutional defects. Right before Thanksgiving, the Arizona Attorney General, recognizing these problems, agreed to stay enforcement of Arizona's law pending further developments.