PSINet, Inc. v. Chapman

By a vote of 4-1, judges of this court voted to rehear this case en banc. Because 8 judges disqualified themselves from voting, however, the case will not be reheard. See Fourth Circuit Local Rule 35(b) (requiring for en banc review the vote of a majority of circuit judges who are in regular, active service). This procedural bar is particularly unfortunate as it applies to this seminal First Amendment case because the law of the Fourth Circuit is now written solely by two district judges who were designated to sit on the three-judge panel, and not by any circuit judge.

The panel majority…