The Bar Association of the Fifth Federal Circuit is the bar association to belong to if you’re interested in the work of the U.S. Court of Appeals for the Fifth Circuit. More information about member benefits is detailed on the BAFFC’s website. One of those benefits is a terrific set of short (c. 500 word) articles about appellate practice (here’s an example that I did about a year ago on oral-argument preparation).

Please consider writing one yourself! A link will be emailed out several times to the BAFFC’s thousands of members, as part of its daily updates about recent decisions, and it’ll be available to the membership online as part of the full collection of these pieces. Contact BAFFC administrator Mary Douglas at mary@baffc.org!

The National Court Reporters Association recently published a fascinating “white paper” about “ethical and legal issues related to the use of artificial intelligence … and digital audio recording of legal proceedings.” It’s succinct, thoughtful, and raises questions relevant to just about any area of law practice or court administration that’s touched by the influence of generative AI and related technologies.

A Fifth Circuit panel applied circuit precedent to reject a liablity claim involving Snapchat in Doe v. Snap, Inc., No. 22-20543 (June 26, 2023), stating: “Parties complaining that they were harmed by a Web site’s publication of user-generated content . . . may sue the third-party user who generated the content, but not the interactive computer service that enabled them to publish the content online.” By a one-vote margin, the full court denied en banc review, as follows (notably, Edith Jones voted with the court’s Democrats to not review the panel opinion): 

The mifepristone litigation – recently selected by Law360 as the most notable case of 2023 from the Fifth Circuit – will be heard by the Supreme Court. While it did not grant the petition about the original approval of mifepristone, a wide range of significant issues–including important standing questions, and the modern viability of the Comstock Act–are ripe for decision as part of the granted petitions:

Whatever your views of the remarkable civil-rights issue presented by Wilson v. Midland County (the intersection between some highly technical immunity rules and the bizarre injustice of a county employee working simultaneously for the prosecution and the courts), one can admire the deft prose of Jude Willett’s opinion:

The Fifth Circuit reminded about the basics of issue statements in Smith v. Delta Charter Group, Inc.:

Delta also forfeited its argument that the district court should have instead applied Rule 54(b). Delta didn’t include this argument in its “Statement of the Issue” or in the body of its opening brief—rather, Delta relegated it to a footnote. We have repeatedly cautioned that arguments appearing only in footnotes are “insufficiently addressed in the body of the brief” and are thus forfeited. Delta’s Rule 54(b) argument meets this predictable fate.

No. 23-30063 (Dec. 13, 2023).  Note that this is NOT a criticism of the “citational footnote”–and in fact, the concept of the citational footnote rejects this sort of stealthy, footnote-only legal argument.

“Here, ‘all parties have agreed from the beginning of this case that Houston’s voter registration provisions governing circulators’  are unconstitutional. The City also agreed that it ‘would and could not enforce the provisions.’ The City has repeatedly and consistently emphasized its agreement with the plaintiffs throughout this suit. Such faux disputes do not belong in federal court.”

Pool v. City of Houston, No. 22-20491 (Dec. 11, 2023) (citations omitted).

The defendant in a boat-collision case challenged the admission of an accident reconstruction; the plaintiff argued that this point was not preserved. The Fifth Circuit concluded that the defendant had preserved some grounds for objection in a pretrial motion to exclude, a proposed pretrial order, and another pretrial filing about evidence. Thus: “[Defendant’s] pretrial objections preserved the arguments contained in Balkan’s motion in limine concerning authrntication and expert testimony. But neither he nor Balkan argued below that the reconstruction was inadmissible summary judgment evidence. That argument thus was not preserved for appeal.” Marquette Transp. Co. v. Navigation Maritime Bulgare JSC, No. 22-30261 (Dec. 4, 2023).

The Senate recently confirmed Hon. Irma Ramirez of Dallas as a judge on the Fifth Circuit. When she takes office the Court will again be at a full complement of active judges.

Eschewing exotic constitutional issues about a state’s rights to engage in military activity, the Fifth Circuit affirmed a preliminary injunction requiring Texas to remove an obstacle from the Rio Grande, citing the federal government’s exclusive authority as to navigable waters. United States v. Abbott, No. 23-50632 (Dec. 1, 2023). A dissent had a different view; some serious consideration of en banc review is likely.

After resolving threshold matters about justiciability, the Fifth Circuit rejected facial First Amendment challenges to Texas laws about the use of drones in Nat’l Press Photographers Ass’n v. McCraw, as follows:

• “No-Fly” provisions. “Plaintiffs’ First Amendment challenge to the No-Fly provisions falters because ‘only conduct that is “inherently expressive” is entitled to First Amendment protection.’ The operation of a drone is not inherently expressive—nor is it expressive to fly a drone 400 feet over a prison, sports venue, or critical infrastructure facility. And nothing in the No-Fly provisions has anything to do with speech or expression. These are flight restrictions, not speech restrictions.” (footnotes omitted, emphasis in original).
• “Surveillance” provisions (which prohibit the use of a drone to capture images “with the intent to conduct surveillance ….”). “Though most drone operators harbor no harmful intent, drones have singular potential to help individuals invade the privacy rights of others because they are small, silent, and able to capture images from angles and altitudes no ordinary photographer, snoop, or voyeur would be able to reach. … The law is also tailored to bar only surveillance
  that could not be achieved through ordinary means …. We therefore conclude that the law survives intermediate scrutiny.”

No. 22-50337 (Oct. 23, 2023). The opinion was later revised.