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The Smartphone Theory of Birth Rate Decline Still Doesn't Hold Up

2026-06-10T16:21:08Z

iPhones may have slightly exacerbated an already underway drop in unintended pregnancies among teens. That's the big finding in a new working paper published by the National Bureau of Economic Research (NBER).

In a more sane environment, this paper would be greeted with somewhere between slightly increased respect for the poor smartphone and a collective shrug. Or perhaps with some skepticism—how exactly did the authors reach this conclusion anyway? Does it hold up?

Alas, we live in a period of total paranoia and doom about smartphones. So the NBER paper is being heralded as a sign that smartphones are to blame for birth rates falling generally and a big, tragic harbinger of population doom.

Today, I want to look (once again) at why this fatalistic view is unwarranted and how the hype about phones and fertility doesn't hold up.

Should We Really Mourn a Drop in Unintended Births to Teens?

Let's start with the study itself. Authors Caitlin K. Myers and Ezekiel Hooper attempt to look at the iPhone's effect on childbearing by assessing U.S. fertility rates in places where AT&T provided mobile broadband coverage between 2003 and 2011 and places where it didn't. The iPhone was available only on AT&T networks during the period between June 2007 and February 2011.

From this, they conclude that iPhones did, indeed, lead to birth rates dropping. But even taking their calculations and explanations at face value, we're mainly looking at a phenomenon involving teen girls and, to a lesser extent, women in their early 20s. The results suggest "the fertility drop is concentrated among young populations and largely operates through declines in unintended births," the authors write, adding that one of the methods of suppression may have involved greater access to information about birth control.

Per Myers' and Hooper's calculations, "access to the iPhone reduced births by 4.5–8.0% at ages 15–19 and 3.2–6.6% at ages 20–24." But among 25- to 29-year-olds, the reduction was just between 1 percent and 1.3 percent; among 30- to 34-year-olds, it was as little as 2.7 percent; and among 35- to 39-year-olds, it was just 1.4 percent.

Is alarm really quite the right response here? Because even if we accept the underlying premises and conclusions of the study—and that's a big if, as we'll get to in a minute—what we're looking at here seems to be more girls and women avoiding unintended pregnancy at young ages or choosing to wait until they're more emotionally, financially, or professionally ready to have kids. If the iPhone really did depress fertility in this way, I'm not convinced that's a bad thing.

But About That Study Design

I'm also not convinced that there's really an iPhone-to-fertility-drop pipeline at play here. Remember, this whole experiment is based on studying "counties with near-universal AT&T coverage to counties with little or none over 2003–2011," as the authors put it.

The authors didn't measure how many people in their study areas actually had iPhones or whether birth rates actually dropped more among iPhone users. They just measured overall birth rates in areas with more or less AT&T coverage.

There are likely many differences between places where A&T coverage was extremely high and those where it was extremely low. More remote or rural areas would have had less coverage, while densely populated urban and suburban areas would have had more coverage. The former tend to be places where people are poorer, more religious, more isolated (including from access to birth control), have different norms, and so on. And keep in mind these were also the years of the Great Recession, which could have hit people in big cities and in small towns quite differently.

In short, there are all sorts of reasons independent of phones why births might have continued more apace in places with low AT&T coverage.

The authors attempt to control for this by "reweight[ing] control counties to match treated counties on observable demographics." But even if you control for certain aspects—income and education, say—it's hard to control for differences in cultural attitudes, community norms, economic and psychological effects of the recession, political leanings, access to contraception, and everything else that sets these areas apart.

It becomes really unclear: Are we looking at iPhone effects, or just urban vs. rural fertility trends during the Great Recession?

Even the study authors admit that it may be the latter. "Given that [high coverage] counties are systematically more urban than control counties, any other forces causing urban fertility to decline relatively more than rural fertility over this period could generate the same pattern."

Some problems with this study:

1.) There was already a pretrend in evidence. So they're claiming smartphones caused a pattern already in evidence.
2.) As others pointed out, there's confounding rural/urban issues in this analysis (it's geographic, not behavioral).
3.) Models…

— Chris Ferguson (@CJFerguson1111) June 9, 2026

Casting More Doubt on the Phones Narrative

The broad contours of this study just don't lend themselves to a simple and causal phones-to-fertility-drop explanation. And this becomes even more clear when you drill down a little on birth trends and phone ownership demographics.

For instance: There was "no effect" for black women of any age. Should we take from this that black women are somehow impervious to the effects of smartphones? Or does it perhaps suggest that maybe something else was at play? (Black women in urban areas are also more likely than white peers to be low income, so this could again hint at a socioeconomic component to all of this.)

Then there's the fact that birth rates began dropping before the iPhone's introduction, positioning their post-iPhone drop as a continuation of a trend. Or the fact that teen and young adult birth rates still dropped significantly in areas with low AT&T coverage. For instance, "births to women in their twenties fell by 10.0% in counties without coverage but by 14.6% in counties with extensive coverage." And "teen births declined by 13.8% in counties without AT&T coverage, compared to…26.0% in counties with near-universal coverage."

We should also think about the demographics of iPhone or smartphone ownership. Just because AT&T coverage was high in a given area does not mean that ownership was high among teens or people in their early 20s, the groups for which birth rates dropped the most.

According to Pew Research Center data, just 23 percent of 12- to 17-year-olds had smartphones in 2011. About 49 percent of 18- to 24-year-olds did. "Smartphone ownership [was] highest among Americans in their mid-twenties through mid-thirties, as fully 58% of 25-34 year olds own a smartphone," Pew reported.

So, smartphone ownership was highly concentrated among the groups with the lowest birth rate declines.

Zooming Out

It seems we're destined to discuss phones and fertility every month now. Last month, this discussion was spawned by a Financial Times article positing that "the most recent [birth rate] plunge appears connected with our use of technology." But as I pointed out then, a recent paper on phones and fertility (different than the one discussed in this post) found a depressing effect for teens, not for women generally. Also, birth rates have been falling for centuries.

Proponents of the smartphone theory of fertility decline have an answer to that second objection: Sure, fertility rates have been falling for a long time—but this time it's different.

"One set of factors best describes why birthrates declined toward 2 around the world in the last few decades—modernization, contraception, women's education and social freedom, etc.," suggests Derek Thompson. "But another set of factors seems to better describe why birthrates have fallen toward 1 and below one in many places and among many groups. And smartphones belong in the second category."

I don't think that's entirely implausible. But it's also just conjecture; we don't have data to back this up.

We should also contend with the fact that in many places birth rates started falling below two in the 1970s. In the U.S., for instance, the total fertility rate went from 2.5 in 1970 to 1.9 in 1973, not rising above 2 again until 1990.

And late–20th century declines were often much steeper than those we've seen in recent decades. Korea's total fertility rate dropped by three whole children per woman between 1971 (when it was 4.5) and 1987 (when it was 1.5), according to World Bank data. Since 2007, it's gone from 1.3 to 0.7 (in 2024). In the United Kingdom, the fertility rate went from 2.9 in 1964 to 1.7 in 1977—down 1.2 kids per woman. In the most recent data, it was 1.4—a decline, yes, but nowhere near as steep as in the '60s to the '70s.

What's more, recent declines don't always line up neatly with smartphone introduction or adoption. In Italy, for instance, the total fertility rate went from 2.4 in 1971 to 1.2 in 1995 before rising slightly, reaching 1.4, and only falling below that threshold in 2017. In Japan, the fertility rate went from 2.2 in 1971 to 1.3 in 2005. After that, it rose again, hitting 1.4 in 2008 and remaining there until 2020, when it began to fall again (to 1.1 in 2024).

Around the world, birth rate data present a very murky picture, and not one easily mapped onto the smartphone-first theory of fertility decline.

If It Is the Phones, Then Why?

I'm not ruling out the possibility that phones have in some ways contributed to people having fewer babies. But if phones have played some role, it's worth thinking about why—and whether this why is a cause for alarm. Because there is a positive explanation, and a negative explanation.

In the negative scenario, we have fewer babies because phones have displaced social interactions. People are just sitting at home on social media instead of going out and watching porn instead of trying to pick up sex partners in real life. This means they have fewer opportunities to meet people and start a relationship that might lead to marriage and children, or to have an ill-planned hookup that inadvertently leads to children. And when they do meet people, they're less trusting and less receptive to them because of online toxicity and gender wars. Decreased fertility rates are downstream of people being lonely, disagreeable hermits.

It's worth noting that even in the negative scenario, not all of it is negative. Fewer teens hooking up out of boredom is not bad. Fewer college students having unintended pregnancies is not bad. Fewer drunken hookups that lead to oops-babies is not a bad thing.

In any event, there's another theory: Phones have led to what Jordan McGillis called "high-speed norm diffusion."

In this more positive scenario, phones have provided young people—including young people in conservative communities and countries, isolated locales, etc.—a glimpse of lives that don't follow a traditional path and still turn out just fine. They have provided women with access to feminist movements and ideals, reinforcing the idea that one need not settle for poor treatment from a partner or marriage to an unloved person just for the sake of following the script before it's too late. They have provided access to countless tales of women who have waited until their 30s or later to have children and still had children—perhaps fewer than they would have if they'd started earlier, but still, enough. They have empowered people around the world to feel like they have more of a choice about when and whether to marry and have kids. And they have provided teens and young adults in previously sheltered communities access to information about contraception and abortion.

Which narrative you prefer is basically just a choose-your-own-adventure-book at this point, because the data we have can't really tell us. But taken all together, I think four things about the phones and fertility debate are clear:

1) Any theory that tries to pin phones as the primary cause of the birth rate falling below replacement level (2.1) is wrong. It simply doesn't square with the trajectories of the declines.

2) To the extent that phones have played a role in very recent declines, it's not at all clear that the mechanism of action is negative, a cause for alarm, or something we would necessarily want to tamp back. People who say it obviously comes down to porn, or polarization, or isolation, are not magically right just because their version of events is more alarming. And any attempt to bolster support for age-verification measures, greater government suppression of online content, or other internet control regulation is opportunistic at best.

3) The data we have to "prove" phones have caused fertility declines do no such thing. Areas did not get high-speed connectivity at random, and people did not start adopting smartphones at random. Differences between these areas and these people are highly confounding. And there's nothing to say that smartphone users in these areas were the same ones having fewer babies.

4) To the extent that the data suggest phones have played a role in very recent declines, it's mostly been among the youngest cohorts, with the largest effect on teenagers—again, not necessarily something we should want to undo.

In the News

Shrexting is not a crime. "An Ohio courtroom may soon have to determine whether a blogger should face jail time for texting an image of Shrek's penis to a public official," notes Reason's Megan O'Rourke. He was charged with telecommunications harassment. Harassment is not protected by the First Amendment. Neither is obscenity.

But this does not rise to the level of harassment or obscenity, argues the Foundation for Individual Rights and Expression (FIRE). "A handful of afternoon texts—including a single image—from one easily blockable number, looks like protected speech, not criminal harassment. Especially absent any apparent request to stop." And while "the Shrek image may have been crude or vulgar…there is no serious argument Byrnes sent it to arouse anyone's sexual interest, let alone that it satisfies the Miller test."

On Substack

Should preschoolers be using iPads in the classroom? Many schools seem smitten but parents are pushing back, notes Nicholas Smyth at Persuasion.

The average parent of a young American child is now a Millennial. They remember growing up with technology, with computer class, with laptops in high school. They have cellphones, use the internet, and may even work in tech or communications. They have concerns about technology but are happy to incorporate it into their family life when it makes sense.

However, they are often deeply shocked when they find out that their 4 year-old is about to be given a Chromebook or an iPad upon entry to kindergarten. They think: isn't that a little young?

They discover that this is now common practice. According to 2022 data, 73% of K-2 classrooms have a 1-to-1 device policy. They ask: Who made this decision?

They discover that COVID-era tech policies, which may have been necessary during the pandemic, have not just been continued, but mysteriously ramped up. They start to ask more questions. They quickly learn that their school boards, technology directors, and superintendents have enthusiastically overseen all of this with virtually no opposition.

The pushback from parents is spawning some reform, notes Smyth. In Vermont, a "right to opt out" of digital instruction and assignments is being considered in the Legislature, and Iowa approved a screen-time maximum for kindergarten through fifth graders.

Read This Thread

Usually this section is reserved for things where I mean: "Read this thread because it's insightful or otherwise great." Today's is… not that. I'm Team Taylor.

Recently, Magdalene J. Taylor declared in the New York 'Times': "There has still never been a better time in human history to happily and successfully pursue heterosexuality." Despite all the grim headlines, straight Americans "have greater freedom than ever before to become whom… pic.twitter.com/hfBm3Mqk6q

— New York Magazine (@NYMag) June 9, 2026

Contrast that with Taylor's take:

We have all the choice in the world, including the choice to never marry, date or have sex again. We have the choice to date younger, date older, date around or date one person forever. These should be our personal choices, informed by our own experiences, not the product of political pressure or online rhetoric.

Forget the gender wars: Let's go forth with the excitement and fun we deserve. Now is the time to be hetero-optimists.

More Sex & Tech News

• "The next Internet crisis may start with age verification," suggests Inc. "Apps and even governments are surprisingly vulnerable to hackers, and they only become more appealing targets as they collect more identity verification data." And "as more websites that collect sensitive information are hacked and data is exposed, it can ultimately create a new internet trust crisis."

• "We know from experience that sex workers are the beta testers for taking away people's digital rights." Ana Ornelas of the European Sex Workers' Rights Alliance nails it in this Mashable piece on how sex workers are fighting against bad tech policy.

The post The Smartphone Theory of Birth Rate Decline Still Doesn't Hold Up appeared first on Reason.com.

Should ICE Deport All Illegal Aliens?

2026-06-10T16:07:45Z

The Heritage Foundation's Simon Hankinson and George Mason University's Bryan Caplan debate the resolution, "Immigration and Customs Enforcement (ICE) should complete its mandate to deport all illegal aliens currently residing in the United States."

Taking the affirmative is Hankinson, a senior research fellow at the Heritage Foundation's Border Security and Immigration Center and author of The Ten Woke Commandments—You Must Not Obey.

Taking the negative is Caplan, a professor of economics at George Mason University. He is the author of 12 books, including the graphic novel Open Borders: The Science and Ethics of Immigration.

The debate is moderated by Soho Forum Director Gene Epstein.

The post Should ICE Deport All Illegal Aliens? appeared first on Reason.com.

No Pseudonymity for Accountant Challenging Public Company Accounting Oversight Board Disciplinary Proceedings

2026-06-10T16:07:22Z

From yesterday's D.C. Circuit decision in Doe v. Public Company Accounting Oversight Board (Judges Karen LeCraft Henderson, Justin Walker, and Bradley Garcia):

Plaintiff John Doe—an accountant facing disciplinary proceedings before the Public Company Accounting Oversight Board—brought suit in district court, raising wide-ranging challenges to the Board's structure and operations. As part of that action, Doe sought leave to proceed under a pseudonym. The district court denied the motion. We affirm….

Doe asserts a privacy interest in the fact that he is the subject of a Board disciplinary proceeding because disclosure of that fact would harm his professional reputation by "brand[ing] him an outlier—'damaged goods'—among accounting professionals." Doe's privacy concerns are different in kind from those that "traditionally warrant pseudonymity," which typically involve " 'intimate issues such as sexual activities, reproductive rights, bodily autonomy, medical concerns, or the identity of abused minors.'" …

[And, a]s the district court explained, Doe relied only on general statements about the potential harms of public charges, and he did not submit any declarations to support those claims. The district court's approach is consistent with our precedents, which underscore that movants must make a "colorable showing of injury to a privacy interest" by offering something "concrete to establish that revealing [their] identity would cause" some "cognizable harm." That showing could take the form, for instance, of a declaration explaining the "substantial risk" that a "privacy injury" "would occur." The district court reasonably concluded that Doe's motion was insufficient on this front, as Doe "merely asserted" he would suffer a privacy injury without "specifically explain[ing] why harm was likely to result." …

[Courts should also] "look[] to the identity of the opposing party"—whether the defendant is a private or governmental actor—"as a tool for measuring the public interest in transparent litigation." Both sides agree that the Board should be considered a governmental actor for purposes of the pseudonymity analysis, and the district court in turn found this factor to cut against Doe because the presence of a governmental defendant "favor[s] pseudonymity only when plaintiffs request individualized relief." Doe contends that he seeks only "modest, individualized, and self-protective relief" because he requests an injunction preventing the Board from proceeding against him.

The district court correctly explained, however, that Doe's arguments would clearly apply beyond this case: Doe raises sweeping challenges to the Board's operations and existence that are "not grounded in his specific circumstances." … [P]seudonymity is less likely to be appropriate where "the party asking to proceed anonymously seeks to alter the operation of public law both as applied to it and, by virtue of the legal arguments presented, to other parties going forward." …

{Doe argues that pseudonymity is proper because disclosure of his identity could "chill or discourage people from exercising their core First Amendment rights" to challenge government actions in court. The district court reasonably rejected that argument, as it would "make just about any plaintiff entitled to pseudonym status." We have similarly not been swayed by suggestions that the fourth factor should favor pseudonymity where disclosure could "chill litigants from suing the government for constitutional violations."} …

Next, Doe argues that the district court erred in declining to weigh his likelihood of success on the merits in the pseudonymity analysis…. [But o]ur published opinions on the subject have never suggested that merits questions are relevant to the pseudonymity issue. Privacy concerns—not the underlying merits—drive the pseudonymity analysis, and requiring courts to delve into the merits to resolve a pseudonymity motion would be exceedingly burdensome….

Finally, Doe points to provisions of the Board's organic statute that, in his view, guarantee the confidentiality of Board investigations and disciplinary proceedings. On Doe's theory, those provisions "weigh heavily in favor" of pseudonymity because they reflect a congressional judgment that the subjects of Board adjudications face "irreparable reputational and career damage" if their identities are publicly disclosed. See Doe v. MIT (1st Cir. 2022) (observing that pseudonymity is "ordinarily" appropriate in "suits that are bound up with a prior proceeding made confidential by law").

Several provisions of 15 U.S.C. § 7215—which governs Board investigations and adjudications—address confidentiality. Section 7215(c)(2) provides that "[h]earings under this section shall not be public, unless otherwise ordered by the Board for good cause shown, with the consent of the parties to such hearing." Section 7215(b)(5)(A) further directs that

all documents and information prepared or received by or specifically for the Board, and deliberations of the Board and its employees and agents, in connection with … an investigation under this section, shall be confidential and privileged as an evidentiary matter (and shall not be subject to civil discovery or other legal process) in any proceeding in any Federal or State court or administrative agency, and shall be exempt from disclosure, in the hands of an agency or establishment of the Federal Government, under [FOIA], or otherwise, unless and until presented in connection with a public proceeding or released in accordance with subsection (c).

Last, Section 7215(d)(1) explains that if the Board "imposes a disciplinary sanction," it "shall report the sanction to" "the public." {If the target of a Board proceeding seeks SEC review, the sanction is automatically stayed, so there is no public disclosure of the sanction unless and until the SEC affirms the Board's decision.}

We conclude, however, that these provisions do not cover the identities of subjects of Board proceedings but instead the documents and information generated in the Board's investigations and the contents of Board hearings. As noted, Section 7215(c)(2) makes Board "[h]earings" presumptively confidential, while Section 7215(b)(5)(A) extends confidentiality protections to certain "documents and information." It is hardly natural to regard a person's name and the fact of a Board proceeding against him as "documents and information prepared or received by or specifically for the Board." And although in the abstract a name might fall within the "dictionary definition" of "information," "the context"—Section 7215(b)(5)(A)'s focus on information "prepared or received by" the Board "in connection with … an investigation"—"tugs strongly in favor of a narrower reading."

The title of Section 7215(b)(5)—"Use of documents"—also fits that narrower reading. And our conclusion is reinforced by the contrast between Section 7215(b)(5)(A) and other statutory confidentiality protections—such as those in the SEC whistleblower scheme, which Doe suggests is analogous—that explicitly refer to protecting individual identities. See 15 U.S.C. § 78u-6(h)(2)(A) (providing that "the Commission shall not disclose any information … which could reasonably be expected to reveal the identity of a whistleblower"). The text and context of Section 7215 thus demonstrate that parties like Doe do not enjoy a statutory right to pseudonymity….

Jeffrey A. Lamken and Robert K. Kry (MoloLamken LLP) and Donald B. Verrilli, Jr., Elaine J. Goldenberg, Ginger D. Anders, and Rachel G. Miller-Ziegler (Munger, Tolles & Olson LLP) represent PCAOB.

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The Next AI Success Story Might Be Nepal

2026-06-10T15:33:14Z

In the United States, the AI boom is bringing on unprecedented levels of wealth and productivity. It appears that a similar trend is happening in other parts of the world.

In 2025, Nepal exported more than $1 billion in I.T. services for the first time, The Kathmandu Post reported earlier this year. This is more than double the amount it exported only three years ago, according to the Post, with growth driven by an influx of software development, I.T. and AI services, and "home loan data processing for Australian companies."

By Western standards, $1 billion in I.T. services is not especially impressive and is comparable to the value of a small tech startup. But for Nepal, whose GDP is about $45 billion (or $1,550 per capita) and whose top economic sectors are tourism and remittance payments from expats, the feat is impressive.

The growth of the country's tech sector is not surprising to Pukar Hamal, CEO of SecurityPal. "I think we're at the very early parts of a hockey stick curve here," he tells Reason.

Entrepreneurs like Hamal, a Nepali immigrant now living in San Francisco, are an important factor in the country's upward trajectory. Since launching in 2020, SecurityPal—which helps automate the due diligence process of commercial transactions—has quickly found success with an impressive roster of clients, including OpenAI and Grammarly. In 2025, Hamal decided to expand the company's operations by opening an office in Kathmandu, Nepal's capital city, which employs close to 200 people.

Despite the country's success in 2025, Hamal says Nepal "is a little bit behind" and needs "to play catch-up."

Some of this catching up is underway through an initiative called Silicon Peaks. This "ecosystem," as Hamal calls it, aims to attract investment into Nepalese tech companies, give Western firms a faster path to access Nepal's talent market, and recruit outside corporations to expand their footprint in Nepal, which can be very beneficial to their operations.

By opening an office in Nepal, companies can tap into a rich pipeline of workers who have received a Western education—many students from the country's STEM-focused education system go on to study at American universities. And with 42 percent of the global population and 35 percent of its GDP only a direct flight away from Kathmandu, the country's location is hard to beat.

Nepal's natural resources also give firms an answer to some of the energy and water concerns, however unfounded they might be, that dominate the data center discussion in the U.S. and other Western nations. Thanks to its unique topography and climate, Nepal's power grid runs almost exclusively on carbon-free hydropower, which is a fraction of the cost of electricity produced in the United States.

"It's a country that's sort of flush with water," says Hamal. "It almost has too much water."

Regardless of these factors, Nepal's data center industry is still in its infancy. Kathmandu currently has 10 operational data centers, according to Data Center Map, all of which are only a couple of megawatts in size. Given Nepal's lack of computing power or need, the growth of its data centers will probably be contingent on satisfying regional demand from its neighbors, China and India.

Still, Nepal's potential seems to be resonating with investors and Fortune 500 firms such as Coca-Cola and Mastercard, which have tech operations there today. Meanwhile, over $200 million "has been deployed directly into Silicon Peaks companies," according to the initiative's website.

Tech investments aside, the country's transition to a more market-oriented economy is reason enough to feel optimistic about its future.

Last year, the U.S. Department of Government Efficiency severed nearly $330 million worth of USAID funding to the country, a large chunk of which had gone to sexual health nonprofits and farming projects. While the funding cuts have had real, negative impacts on some people, the economy as a whole seems to be responding positively: From July 2025 to April 2026, average inflation reached 2.39 percent, down from 4.57 percent over the same period a year prior, according to Nepal News. Exports and imports also increased, but so too did prices, which rose to 4.47 percent (up from 3.39 percent a year earlier).

As its economy is looking up, Nepal's political future is too. In March 2026, the country voted out the ruling communist party—one of many leftist parties that have had a grip on Nepalese politics for years. In its place, the more market-friendly, left-of-center Rastriya Swatantra Party has come into power, promising to weed out corruption and increase Nepal's exports of tech services.

"I'm hoping that the taste of [the] free market, compounding growth, [and] technology-driven economic growth—which can happen quite rapidly, if you play your cards right—will help the country see that they don't need to embrace this communist system," says Hamal.

Indeed, if you ask any entrepreneur—or almost any historian—they'll tell you that when a country embraces free markets and shuns central planning, its citizens and economy benefit. Nepal's not a tech giant—at least not yet—but its trajectory is encouraging and seems to indicate the tiny country could punch well above its weight in the AI era.

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My New Lawfare Article on "Why Callais Doesn't Justify Court-Packing"

2026-06-10T16:06:18Z

Today, Lawfare published my article "Callais Doesn't Justify Court-Packing." Here is an excerpt summarizing key points:

The Supreme Court's recent decision in Louisiana v. Callais—barring nearly all use of the Voting Rights Act (VRA) to create majority-minority congressional districts—has been met with outrage by many on the political left and led to renewed calls for court-packing. For example Rep. Ro Khanna (D-Calif.) has said that "[w]e need to expand this morally bankrupt court from nine to 13." House Minority Leader Hakeem Jeffries (D-N.Y.) has said that "everything should be on the table," presumably including court-packing. Former vice president and 2024 Democratic presidential nominee Kamala Harris has expressed similar sentiments. A number of other Democrats advanced court-packing plans even before Callais.

The Callais decision has some flaws. And the conservative majority on the Supreme Court has made some serious errors in other cases, such as the Trump presidential immunity decision. But court-packing remains a dangerous idea that Americans across the political spectrum should reject. Callais is not without merit, and—at the very least—not as bad as its most strident critics claim. More generally, the Supreme Court is far from being a pure "MAGA" Court and has, in fact, constrained the Trump administration's abuses on several important fronts, and has allowed lower courts to constrain it elsewhere. Court-packing would create a slippery slope to the destruction of judicial review, thereby benefiting power-grabbing presidents like Trump, and imperiling constitutional rights, particularly those of minority groups. To the extent Callais is a problem, it can be better addressed by steps such as banning gerrymandering. There are also better remedies for various other shortcomings of the Court, such as enacting term limits and imposing an ethics code.

The rest of the article covers these issues in greater detail.

By coincidence, this is my second popular media article this week that is likely to annoy the left more than the right (along with yesterday's Washington Post article critiquing NYC Mayor Zohran Mamdani's badly flawed and unconstitutional housing policy). I'm sure I will get back to the business of annoying the right soon enough!

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Why So Many People Feel Lost

2026-06-09T19:53:09Z

Human beings are "creatures of matter who long to matter," says novelist and philosopher Rebecca Goldstein, whose new book is The Mattering Instinct: How Our Deepest Longing Drives Us and Divides Us. She talks with Nick Gillespie about how all humans struggle to figure out how to lead lives that justify our existence, both in the eyes of others and ourselves, and she describes remarkable cases of people who rescued children discarded during China's one-child policy era, atheists who led leper colonies so the afflicted could die with dignity, and former neo-Nazis who seek to reform racist skinheads.

A MacArthur "genius" award winner who has taught at Harvard University, New York University, and Rutgers University, among other places, Goldstein has published highly acclaimed novels such as The Mind-Body Problem and 36 Arguments for the Existence of God, and nonfiction works including Plato at the Googleplex and Betraying Spinoza: The Renegade Jew Who Gave Us Modernity.

The Mattering Instinct investigates what happens when inherited authorities—church, state, family, tribe—lose their power to dictate meaning and individuals must fend for themselves, typically employing strategies she calls transcendence, competition, social belonging, and heroic striving. She invokes Friedrich Hayek's "knowledge problem" to illuminate the dispersed and dynamic qualities of how we all create "mattering projects"—lives worth living—in a world that offers us more and more choice across virtually all areas of activity. Drawing deeply on the philosophical roots of individualism and liberalism, Goldstein offers a moral psychology of freedom, a way to think about individual dignity, pluralism, and self-authorship without devolving into either nihilism or top-down moralism.

0:00—What is the mattering instinct?

4:30—Age, class, and the crisis of meaning

8:46—How do history and technology affect mattering?

10:59—Secularism and mattering

15:00—The four archetypes

27:14—Pursuit of flourishing

32:43—Psychology of freedom

35:43—Frank Meeink

42:50—Lou Xiaoying

51:29—Existential angst

The post Why So Many People Feel Lost appeared first on Reason.com.

Mitch McConnell's Hemp Ban Betrays the Industry He Helped Create

2026-06-10T14:45:07Z

When Sen. Mitch McConnell (R–Ky.) introduced the Hemp Farming Act of 2018, which legalized hemp nationwide, he claimed the legislation would allow states to "conduct their own oversight plans" and "give the hemp industry the tools" to "create jobs and new opportunities" across the nation. McConnell neglected to mention that those jobs and opportunities had to align with his narrow definition of acceptable hemp uses.

Last November, McConnell codified his disapproval of the hemp industry's success with an amendment to the government funding bill passed that month. The provision bans the sale of any "hemp-derived cannabinoid product" with more than 0.4 milligrams of total THC per container. The ban, which takes effect this November, will prohibit the sale of edibles, tinctures, beverages, and vape cartridges containing hemp-derived THC.

The 2018 farm bill definition of hemp includes any part of the cannabis plant containing less than 0.3 percent delta-9 THC, the main psychoactive ingredient in marijuana. The definition also includes "all hemp derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers," as long as they contain less than 0.3 percent delta-9 THC. That legalized a variety of hemp-derived products containing delta-8 THC, an isomer with similar effects to delta-9 THC, or tetrahydrocannabinolic acid, which converts to delta-9 THC when heated.

For years, such products, including drinks sold by liquor stores and other retailers, have been widely available across the country, accounting for a large share of the hemp industry's sales. McConnell's ban is expected to wipe out 95 percent of the hemp industry's $37.5 billion retail market. It is also sure to significantly reduce jobs in an industry that, according to the cannabis and hemp research firm Whitney Economics, employs more than 375,000 people.

Last year, the U.S. Department of Agriculture reports, the value of industrial hemp production reached $739 million, a 64 percent increase over 2024 and a record high. Thanks to the ban on hemp-derived THC, farmers and manufacturers will have a lot of inventory and fewer avenues to offload their product.

In an effort to keep the multibillion-dollar industry from collapsing, lawmakers have proposed amendments to various bills that would "postpone implementation" of the ban or "create an entirely new regulatory and tax structure for hemp-derived THC products," The Hill reports. Rep. Andy Barr (R–Ky.), who is heavily favored to replace the retiring McConnell in the Senate, has announced his own legislation to regulate the industry, aptly called the Lawful Hemp Protection Act. The bill would ban synthetic cannabinoids and direct the Food and Drug Administration to set serving size and potency limits for hemp-derived products.

Facing the threat of extinction, the hemp industry has signaled its willingness to submit to federal regulation. It supports bills—including the Cannabinoid Safety and Regulation Act, introduced by Sen. Ron Wyden (D–Ore.) in December, and the Hemp Enforcement, Modernization, and Protection Act, introduced by Rep. Morgan Griffith (R–Va.) in January—that would set minimum age requirements, establish standards for manufacturing and labeling, and ban synthetic products.

McConnell has defended his opposition to psychoactive hemp derivatives as an attempt to "keep these dangerous products out of the hands of children," Louisville Public Media reports. As evidence of the threat posed by these products, he has argued that the colorful packaging and "candy-like products" are misleading, leading kids to ingest synthetic THC that's often "more potent than marijuana."

There's also concern that dosage, labelling, and ingredients vary across the industry, leaving consumers unaware of what they're taking.

That concern seems to be well founded. According to a 2023 study in the Journal of Cannabis Research, 96 percent of hemp products were under the legal limit for delta-9 THC, but 66 percent listed the wrong dosage. The study also found that manufacturers provided lab reports for 85 percent of the products, although 71 percent of the analyses did not "check for impurities."

Such issues, of course, won't be resolved by driving intoxicating hemp products underground. To the contrary, the black market is notorious for uncertain quality and purity. And like marijuana prohibition, McConnell's crusade against hemp will likely create a black market for the products he wants to ban.

In any event, a federal ban is a heavy-handed way to protect consumers from the small percentage of potentially harmful products. Hemp products with any detectable amount of THC are already regulated at the state level, the Baker Institute for Public Policy at Rice University notes, and several states have age and advertising restrictions.

Even in states with less stringent laws, such as North Carolina, the industry tends to regulate itself. In Raleigh, many breweries, pubs, and restaurants choose to restrict the sale of THC-infused products to customers 21 or older, despite a state law that sets a minimum age of 18.

Instead of creating a new regulatory regime, federal lawmakers could recognize the rights of adults to choose what they consume. But it seems that lawmakers have learned little from the misadventures of marijuana prohibition.

The post Mitch McConnell's Hemp Ban Betrays the Industry He Helped Create appeared first on Reason.com.

Scott Pelley Goes Off on Bari Weiss: 'CBS News Is on Fire'

2026-06-10T13:37:14Z

On this segment of Free Media, Senior Editor Robby Soave and Daily Caller Editor in Chief Amber Duke discuss the turmoil at CBS surrounding its flagship news program, 60 Minutes, as the network faces internal backlash and questions about editorial independence after Bari Weiss took over the network.

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President Trump Storms Out of NBC Interview

2026-06-10T13:36:42Z

On this segment of Free Media, Senior Editor Robby Soave and Daily Caller Editor in Chief Amber Duke react to Donald Trump storming out of an NBC interview after clashing with host Kristen Welker. Before calling it quits, the two discussed how the president did not keep his promise of "no new wars," and he called Welker "crooked."

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Maine Kampf

2026-06-10T13:26:46Z

Apparently neither party has any standards: Graham Platner, a Democrat, won his primary for Senate up in Maine and will now face sitting Sen. Susan Collins, a Republican, this November.

Platner has tried to paint himself as an everyman oyster farmer and Marine combat veteran (both technically true), but he is perhaps better described as a "low-conscientiousness loser," in the words of Very Serious writer Josh Barro.

It would be one thing if Platner's nascent political career had been plagued by just one scandal. Or just two scandals. You might take issue with his Nazi tattoo—a skull-and-crossbones design called a Totenkopf, that he got with other Marines in Croatia back in 2007, that he has repeatedly claimed he didn't know the significance of. (His former girlfriend, Lyndsey Fifield, begs to differ, saying Platner used to frequently joke about his Nazi tattoo.) Or maybe the fact that he has a history of roughing up his girlfriends a bit. Or cheating on his wife by sexting other women. Or his weird Reddit comments, ("You don't have much experience with Latin American hookers, do you?") per The Wall Street Journal. Or the fact that he was a Redditor at all.

"Graham Platner doesn't work for a living," notes Barro. "As The New York Times reports, the bulk of his income comes from a military disability pension of approximately $60,000 a year. The pension doesn't mean he's too disabled to work—he is, after all, currently seeking the job of U.S. Senator—but his recent non-campaign endeavors seem more like hobbies than a career. He runs an oyster farm that principally sells oysters to his mother's restaurant. He earned a small stipend as his town's harbor master: $3,000 last year. He lives in a $205,000 house that he bought with a $200,000 loan from his father."

It's kind of wild that Democratic strategists think Platner is their guy. The one to beat Collins, the one to appeal to Maine's regular voters, the one who can—potentially as early as next year—effectively work in the Senate. (No wonder Congress can't get anything smart done.) But this formula appears to be working again and again: "Jay Jones, another similarly 'imperfect' candidate, managed to get elected attorney general of Virginia last year despite revelations that he was arrested for driving 46 miles an hour over the speed limit and wished death on the children of one of his Republican colleagues," adds Barro.

We're in a bit of an era of the young, underqualified candidates who haven't worked so many real jobs—Zohran Mamdani, Spencer Pratt, Graham Platner, Beto O'Rourke—doing better than expected. (Other scrappy young upstarts, like James Talarico and Jon Ossoff, seem wiser, intent on racking up experience in government before advancing.) It seems like the success of the Mamdanis and Platners of the world has more to do with the unpopularity of their opponents than anything they themselves did right. As well as, in Mamdani's case, the fact that his upper-middle-class champagne socialist energy is rather welcome among many New York City voters who see themselves in him. And in Platner's case, he's just an actual Democrat running in a pretty blue state against a squishy Republican. Any warm body would probably do.

Scenes from New York: Highly recommend riding the ferry to Governors Island if you have little kids and a thirst for E.R. visits (as I do).

What if we returned some risk—and some old-skool adventure!—to our playgrounds? The Yard, on Governor's Island, experiments w this concept. ("What is the cost to making things as safe as possible rather than as safe as needed?" "Children are fine without advice/suggestions.") pic.twitter.com/lAgfbcjWlu

— Liz Wolfe (@LizWolfeReason) June 10, 2026

QUICK HITS

Inflation ticks up higher:

BREAKING: May CPI inflation rises to 4.2%, the highest level since April 2023.

Core CPI inflation also rises to 2.9%, the highest since September 2025.

Inflation in the US is officially back above 4% and more than double the Fed's target.

Odds of Fed rate hikes are rising.

— The Kobeissi Letter (@KobeissiLetter) June 10, 2026

That helicopter I mentioned yesterday that was downed near Oman? The U.S. is blaming it on Iran and striking in retribution. "Iran said it had launched attack drones against U.S. naval targets in Bahrain and fired missiles at American military facilities in Jordan," reports The New York Times.
I went on The Reason Roundtable and talked crime, Spencer Pratt, AI use cases, and Martin Scorsese's Mean Streets (1973). Something for everyone:

"The $31 trillion Treasury market has an unequivocal message for Kevin Warsh's Federal Reserve: Interest rates aren't high enough," reports Bloomberg. "Yields on policy-sensitive US two-year notes have surged to their highest level in more than a year after a trove of economic data led traders to price in at least one quarter-point rate hike as soon as October. At around 4.15%, the two-year yield trades well above the Fed's current policy band of 3.5% to 3.75%, a divergence that began in March."
Anon writer Cremieux explores the premise that people who hold beliefs that are considered far-right today actually just hold the beliefs of a normal person from 30 years ago. "To figure out the answers to my questions, I opened up the General Social Survey and had a look around," he writes. "To get started, I defined a few sets of political views: Institutional Confidence, Criminal Justice & Guns, Political Tolerance, Economic/Pro-Government, Racial Liberalism/Civil Rights, Gender-Role Egalitarianism, and Sexual & Moral Liberalism, and then I outlined a set of important social views."
"Former Fox News host Steve Hilton advanced to the general election to succeed California Gov. Gavin Newsom in November, according to the Associated Press," notes The Wall Street Journal. "He will face-off against former Health and Human Services Secretary Xavier Becerra, a Democrat."
Interesting. Those who complain about childcare are…primarily upper-middle-class:

Families making six figures are twice as likely to pay for child care as those who don't pic.twitter.com/EEWrrSqMjN

— Patrick T. Brown (@PTBwrites) June 9, 2026

Dark:

I wouldn't say this is "the most common question I get" because that is either "who are you" or "are you flirting with me or just like this" but the sentiment about "should I have kids even with climate" is unfortunately common in progressive circles. https://t.co/S8jT7iepNe

— Ben Dreyfuss (@bendreyfuss) June 10, 2026

The post Maine Kampf appeared first on Reason.com.

Author Matt Taibbi's Libel Claim Over House Member's Social Media Posts Dismissed

2026-06-09T23:27:38Z

From Taibbi v. Kamlager-Dove, decided Monday by Judge Evelyn Padin (D.N.J.):

Representative Kamlager-Dove … is … the Ranking Member of the South and Central Asia Subcommittee of the House Foreign Affairs Committee …. The Subcommittee held a hearing on April 1, 2025, titled "Censorship Industrial Complex: The Need for First Amendment Safeguards at the State Department" …. Taibbi was invited to testify at the Hearing. At the start of the Hearing, Representative Kamlager-Dove delivered her prepared remarks, which included the following statements:

Thank you, Mr. Chair, and thank you for being here for our first South and Central Asia Subcommittee hearing. I look forward to working with the Chair in a bipartisan way on the critical issues we are charged with overseeing.

Unfortunately, we're not having a hearing about any of those. Instead, this Subcommittee is wasting taxpayer time and resources on the fifth such hearing Republicans have held across multiple committees on the so-called "censorship-industrial complex."

The majority is relitigating a made-up conspiracy theory about a part of the State Department that no longer exists to distract from the dumpster fire foreign policy this Administration is pursuing—and elevating a serial sexual harasser as their star witness in the process.

The same day of the Hearing, Representative Kamlager-Dove reposted a video of the Statements on two social media platforms: X (formerly Twitter) and BlueSky. Both posts contained the same statement: "After this, Republicans gave Matt Taibbi time to defend himself. It's telling that he didn't." … Representative Kamlager-Dove also posted the Statements on her official House.gov website….

Taibbi alleges that the "serial sexual harasser" comment by Representative Kamlager-Dove was directed at him and that it is "demonstrably false" and "made with actual malice." Taibbi claims that the republications of the Statements—the X, BlueSky, and Website Posts—were defamatory ….

Members of Congress, like other employees, are covered by the Westfall Act, under which, if "the defendant qualifies as an 'employee of the government,' and the Attorney General certifies that the employee 'was acting within the scope of his office or employment,'" the U.S. government is substituted as defendant for the employee. And though the AG's certification is reviewable, here the court agreed that "Representative Kamlager-Dove's statements were within the scope of her employment." Some excerpts:

Here, Taibbi challenges Representative Kamlager-Dove's statements "made during a congressional hearing in Washington, D.C." which allegedly "became actionable defamatory statements" when they were "republished … on social media sites." Taibbi argues that "crowing to voters, and self-aggrandizement to voters on X and Bluesky is not official congressional work but partisan communication." Taibbi claims the Statements were republished to "bolster [Representative Kamlager-Dove's] political standing."

Representative Kamlager-Dove's Statements and republications, however, are precisely the kind of conduct that is "a central part of the job for members of Congress." Indeed, a "primary obligation of a [m]ember of Congress in a representative democracy is to serve and respond to his or her constituents." As the Ranking Member of the Subcommittee holding the Hearing, Representative Kamlager-Dove's remarks mentioned "taxpayer time and resources" and "foreign policy"—topics that are important to members of Congress and that are top-of-mind for their constituents.

Republishing the statements online does not change the analysis. Taibbi claims that the "republications on X, BlueSky, and [Representative Kamlager-Dove's] website were not legislative work, [and] occurred outside the legislative setting." But members of Congress routinely engage with the public on social media and on the internet as part of their jobs. As Taibbi concedes, Representative Kamlager-Dove was simply "talking to voters on Twitter." …

As a member of Congress, Representative Kamlager-Dove has a "proper duty" to "look diligently into every affair of government and to talk much about what [she] sees." And she did so at the Hearing. In addition to the allegedly defamatory statement, Representative Kamlager-Dove discussed taxes, foreign policy, and immigration policy. She explicitly stated political disagreement with the opposing party in her social media posts, writing: "Republicans gave Matt Taibbi time to defend himself. It's telling that he didn't." Political statements by members of Congress—such as Representative Kamlager-Dove's here—are made within their scope of employment.

Representative Kamlager-Dove's statements "were calculated to serve the interests of [her] constituents (i.e., employers) by informing them of [her] views regarding" certain issues, laws, and policies. Put simply, Representative Kamlager-Dove's statements were "out of an interest in serving the public [and her constituents]—even if [s]he was partially motivated" by other political reasons.

So the U.S. government was properly substituted for Rep. Kamlager-Dove—and that doomed Taibbi's defamation claim, because the Federal Tort Claims Act, under which the U.S. government waived its sovereign immunity as to many tort claims, "expressly excludes defamation claims from the federal government's immunity waiver." So because of the Westfall Act, Taibbi loses against Rep. Kamlager-Dove; and because of the FTCA exclusion of defamation claims, he loses against the federal government.

Note that the Speech or Debate Clause bars defamation lawsuits over statements made in Congressional hearings or related official proceedings. It by itself doesn't cover members' republication of those statements on social media.

Stephen Terrell of the DoJ Civil Division represents defendant.

The post Author Matt Taibbi's Libel Claim Over House Member's Social Media Posts Dismissed appeared first on Reason.com.

Today in Supreme Court History: June 10, 1916

2026-01-26T15:30:09Z

6/10/1916: Justice Charles Evans Hughes resigns.

Chief Justice Charles Evans Hughes

The post Today in Supreme Court History: June 10, 1916 appeared first on Reason.com.

Illinois Just Adopted a Half-Baked Scheme to Tax Social Media

2026-06-09T19:05:06Z

Government officials may not fully understand what social media is, but they damned well plan to do something about the ills it may or may not inflict on our society. They'll happily start with extracting some money from the companies behind social media, though it may take a few tries, given politicians' complete lack of understanding of the thing they want to tax. Illinois is a good example, where legislators just passed an attempt at a social media levy that runs afoul of its authors' ignorance.

Illinois Hopes for Big Revenue From New Social Media Tax

"A nearly $56 billion state spending plan is headed to Gov. JB Pritzker's desk after the Democratic-controlled Illinois legislature approved it in the early-morning hours of another overtime spring session," the Chicago Tribune's Dan Petrella noted last week. "The biggest source of new revenue is a new per-user tax on large social media companies."

The governor's signature is essentially guaranteed, since the budget proposal and social media tax originated in his office. Pritzker hopes to raise $200 million per year from the scheme. But the plan faces challenges, not least of which is that a similar tax passed by Chicago is tied up in court. Another and potentially more serious problem, as pointed out by Dan Levin of Straight Arrow News, is that "one of the elements that remains the most unclear is what exactly is being taxed? The language in the bill does not answer that question directly and is, frankly, confusing."

As passed, the budget plan imposes a tax on social media companies based on "the average number of monthly users of the platform located in the State of Illinois." Platforms with 100,000 to 500,000 "Illinois users" will have to pay $0.10 per user each month; platforms with 500,000 to 1 million "shall pay $40,000, plus $0.25 per month" per user; and platforms with over 1 million users will pay $165,000, plus $0.50 per user, each month on the number of users over 1 million. A provision adjusts the tax for inflation starting in 2028. Companies that fail or refuse to pay will be punished with a fee of "an amount equal to 100% of the unpaid fee and any penalties each month until the fee is paid."

That's an awful lot of numbers backed by dire threats. But it still doesn't clarify how to tally up the bill.

Legislators Don't Seem To Understand What They're Taxing

"Let's begin here: what is a user?" asks Jared Walczak of the Tax Foundation. "Is a user a person or an account? If a person has multiple accounts on the same social media platform, does each account constitute a separate user, or is the person one user? To the extent that those accounts are not linked and social media companies lack identifying information on the owners of free accounts, what information, if any, may they use to associate multiple accounts with a single person?"

And what if a person uses multiple platforms owned by the same company, like Meta's Facebook, Instagram, Messenger, and WhatsApp? How is that counted?

"Indeed, is an account even required?" adds Walczak. "If someone reads a Reddit thread without an account, do they count as a user?"

More particularly, the budget plan purports to tax "Illinois users" without specifying how that term is defined even beyond its failure to define "user." It doesn't say whether an Illinois user is a person or account resident in the state, or if it counts anybody using a social media platform while physically present in the state—say, posting on TikTok while passing through the airport. Is an Illinois resident still an Illinois user if posting on social media while out of state?

And in the era of shifting IP addresses and VPNs, how do you nail down people's physical locations?

The budget plan also has a sloppy definition of "social media platform," which it defines as "a website or internet medium that…permits a person to become a registered user, establish an account, or create a profile for the purpose of allowing users to create, share, and view user-generated content through that account or profile." That captures the big platforms—Facebook, LinkedIn, and the like—that we traditionally think of as social media. But it could also scoop up review sites, messaging services, email services, and publishing platforms.

The Tax Scheme May Violate Federal Law

Walczak raises other objections to the social media tax, some of which are based on lawmakers' seeming lack of understanding of how the world works, and others rooted in what appears to be lazy cutting and pasting of language from other legislation without appropriate changes. Another important point he and others raise is that the whole tax scheme looks to be illegal under federal law.

"The federal Permanent Internet Tax Freedom Act prohibits discriminatory taxes on e-commerce," point out Bryce Hill and Ravi Mishra of the Illinois Policy Institute. "Opponents of the governor's plan would likely argue it violates that law, as it targets large online platforms without a comparable tax on offline media or communication services."

Passed in 2014, the Permanent Internet Tax Freedom Act extended the expiring Internet Tax Freedom Act of 1998. As explained by a House of Representatives press release at the time, "this broadly bipartisan legislation permanently bans states from taxing Internet access or placing multiple or discriminatory taxes on e-commerce."

The governor of Illinois and his enablers in the state legislature may be salivating over revenues from a measure that is so poorly drafted as to leave it to the courts to determine what is being taxed and how that tax should be calculated, and in its intent, prohibited by a nearly 30-year-old federal law.

"The policy also could raise Commerce Clause concerns if courts conclude that it shifts burdens across state lines, pushes companies to adopt nationwide pricing adjustments, or restricts their freedom to impose different prices in other states," add Hill and Mishra.

There are also free speech implications in taxes specifically targeted at some media platforms—specifically, those that enable the public to communicate and share information—and excluding others.

"It would be hard to take the new tax seriously, except that it's now Illinois law," concludes Walczak.

The planned social media tax in Illinois is a great example of why government officials shouldn't meddle in things they don't understand. To be honest, the category of things beyond politicians' comprehension includes most of the world around us. But the point remains.

Illinoisans concerned about lawmakers' efforts to tax social media platforms should spread the word. Perhaps, before it's taxed, they could share their worries on the internet.

The post Illinois Just Adopted a Half-Baked Scheme to Tax Social Media appeared first on Reason.com.

Brickbat: Rats and Roosters

2026-06-09T13:38:31Z

Denver Golmon, a police officer in Hammond, Louisiana, is facing federal charges for allegedly exposing the identity of a confidential informant in a cockfighting investigation. Golmon's uncle was indicted as part of the investigation, which was conducted by the Department of Homeland Security. According to court records, Golmon shared videos of the informant that were provided to his uncle's attorneys during discovery, telling the recipients not to share where they'd gotten them. He also asked another officer to arrest the informant at his workplace and to conceal his own involvement. Authorities say the informant has since been labeled a "rat" and may now be in danger because his identity was exposed.

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Open Thread

2026-06-10T07:00:00Z

The post Open Thread appeared first on Reason.com.

Trump's Position in the White House Ballroom Case Reflects His General Resistance to Judicial Review

2026-06-09T16:15:38Z

Even if President Donald Trump's White House ballroom project is illegal, the Justice Department argued last week, federal courts are powerless to stop it. That assertion was consistent with Trump's general attitude toward judicial review, which he considers legitimate only when it allows him to do what he wants.

Last October, Trump demolished the East Wing of the White House, which he plans to replace with a building that would be 60 percent bigger than the Executive Residence in square footage and three times as big in cubic volume. In March, U.S. District Judge Richard Leon, a George W. Bush appointee, said the project required congressional approval because "no statute comes close to giving the President the authority he claims."

On Friday, Justice Department attorney Yaakov Roth urged the U.S. Court of Appeals for the D.C. Circuit to override Leon's preliminary injunction. Since the project is "well on its way" and serves national security interests, Roth said, it would be an "abuse of discretion" to order that it be halted even if the appeals court agrees with Leon on the merits.

Because Congress controls federal property and has not approved anything like Trump's plan, Leon ruled, "the ballroom construction project must stop until Congress authorizes its completion." Roth turned that reasoning on its head, saying only an act of Congress can thwart Trump's will.

The Justice Department took a similar position while defending Trump's invocation of the Alien Enemies Act (AEA) to justify sending alleged Venezuelan gang members to a Salvadoran prison. Trump's use of the AEA "would not be subject to review," Roth et al. told the D.C. Circuit in March 2025. In deciding who qualifies as an "alien enemy" subject to summary deportation, they told a federal judge two days later, Trump was making "national security judgments, which are not subject to judicial second-guessing."

The Supreme Court unanimously disagreed, ruling that AEA detainees have a due process right to challenge their treatment via habeas corpus petitions. The U.S. Court of Appeals for the 5th Circuit also rejected the government's position, ruling that there was "no invasion or predatory incursion" to justify Trump's invocation of the AEA.

Trump likewise claimed he had unreviewable authority to deploy National Guard members in cities across the country. The 9th Circuit and the 7th Circuit disagreed, and so did the Supreme Court, which concluded that Trump had probably misinterpreted the statute on which he was relying.

Trump also thought the courts had no business second-guessing his blanket suspension of security clearances for lawyers at firms that had offended him by representing clients or causes he despises. But while individualized decisions regarding security clearances might be unreviewable, Leon ruled last year, Trump's broad retaliation against disfavored law firms violated the First Amendment.

The courts also consistently ruled against Trump's assertion of sweeping tariff powers under the International Emergency Economic Powers Act (IEEPA). That law, he claimed, authorized him to completely rewrite the tariff schedule approved by Congress based on his unilateral declaration of an "emergency" created by an "unusual and extraordinary threat" from abroad.

Since the Supreme Court concluded that IEEPA does not authorize tariffs at all, there was no need to address the question of whether an "unusual and extraordinary threat" exists whenever the president says it does. But Trump's reaction to that decision reflected his general complaint about courts that get in his way.

The Democratic appointees who voted against the tariffs are a "disgrace to our nation," Trump said, because "they will automatically vote no." He added that the two Trump-nominated justices in the majority were "an embarrassment to their families" because they had revealed themselves as "fools and lapdogs for the RINOs and the radical-left Democrats."

In their eagerness to demonstrate their independence, a still-seething Trump complained a month later, such justices "openly disrespect the Presidents who nominate them." Trump, in short, thinks judges should be independent—as long as they side with him.

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"Desire to Undo the Past" Can't Justify Libel Claim Over "Indisputably Truthful" Articles About Criminal Charges + Expungement

2026-06-09T21:40:21Z

An excerpt from Sunar v. Gray Local Media, Inc., decided today by Judge Kenneth Bell (W.D.N.C.):

Defendants Gray Local Media, Inc. and Gray Media, Inc., (together, "WBTV") accurately reported on Dr. Sunar's arrest and then, at the request (and with the approval) of his lawyer, on the dismissal and expungement. WBTV declined, however, to delete its reporting, preserving the historical record.

Claiming that he has been defamed by WBTV's coverage, Dr. Sunar filed this action seeking tens of millions of dollars in damages and removal of the WBTV articles from its archives…. While Dr. Sunar's desire to undo the past is understandable, his legal claims against WBTV fail … because the articles are indisputably truthful and well within the long-established privilege of the media to accurately report on criminal proceedings…..

On September 11, 2024, Dr. Sunar, who has been practicing dentistry in Charlotte since 2002, was arrested and charged with misdemeanor child abuse and communicating threats. The next day, WBTV published an article to its website regarding the arrest titled "Charlotte dentist charged with child abuse, records show." In relevant part, the text of the article read:

A Charlotte dentist is facing child abuse charges after he was arrested last week, court records show. Jail records revealed 61-year-old Ramesh Kumar Sunar was arrested on Tuesday, Sept. 10, and was charged with misdemeanor child abuse and communicating threats. An arrest warrant said Sunar 'inflicted physical injury' on a child younger than 16 years old. The injury allegedly caused bruising on the child's torso and neck, and was not caused by 'accidental means.' The warrant further stated that Sunar told a man 'he would beat the [expletive] out of him.' According to the warrant, both incidents happened on Sept. 2…. Sunar is listed as the lead doctor on Charlotte Dental Implant Center's website.

WBTV also aired a broadcast about the arrest, which included similar information and Dr. Sunar's mugshot. Dr. Sunar's mugshot was also posted on WBTV's social media pages alongside a link to the First Report. Dr. Sunar acknowledges that the First Report was accurate at the time of publication.

Over a year later, in October 2025, Dr. Sunar's attorney notified WBTV that the charges had been dismissed and expunged from Sunar's record. Counsel requested that either a) the First Report be removed or b) that an addendum be posted disclosing the dismissal and expungement of the charges. WBTV responded that it could "offer [Dr. Sunar] a new article that states the outcome of the case," but that they would not remove or otherwise alter the original post due to its accuracy. Dr. Sunar's attorney's response to WBTV's offer was "Yes please."

On November 11, 2025, WBTV published the requested second article with the title "Charges dropped against Charlotte dentist accused of child abuse in 2024," and the subheading "Charges expunged in October 2025, officials confirm." The Second Report summarized Dr. Sunar's charges and confirmed that the charges had "been expunged on Oct. 10, 2025," explaining that the expungement of Dr. Sunar's charges meant he "was cleared of the charges, and they were dropped from his public record entirely." WBTV provided Dr. Sunar's attorney with a link to the Second Report. Dr. Sunar's attorney replied, "Thank you!"

Nonetheless, the following month Sunar sued for defamation and related claims. The court held that any claims arising from the First Report and related social media posts were barred by North Carolina's one-year statute of limitations in defamation claims. As to the Second Report, the court held,

Dr. Sunar does not contend, nor could he, that any statement in the Second Report is inaccurate. Moreover, the substance of the report is not even defamatory, stating that Dr. Sunar had been cleared of the charges against him and his public record expunged. And finally, the Second Report was prepared at the request of Dr. Sunar's attorney, who responded positively to its publication. In other words, Dr. Sunar seeks to recover on a defamation claim for a truthful publication put out at his request. The law cannot support such a result.

{Also, the media's fair report privilege would support dismissal of Dr. Sunar's defamation claim. The privilege flows from "the absolute privilege which attaches to statements made in the due course of a judicial proceeding." Thus, with respect to reporting on Court proceedings, "[p]laintiff must prove by the greater weight of the evidence that the statement was materially false. If a statement is substantially true, it is not materially false. It is not required that the statement was literally true in every respect. Slight inaccuracies of expression are immaterial provided that the statement was substantially true." Again, here there is no claim of falsity.}

The post "Desire to Undo the Past" Can't Justify Libel Claim Over "Indisputably Truthful" Articles About Criminal Charges + Expungement appeared first on Reason.com.

Why You Can't Settle Mars or Colonize the Moon Without Real Property Rights

2026-06-09T20:45:52Z

Imagine you start an asteroid mining company. It's tough at first. You know that profits are uncertain and, if they do ever materialize, it will be in five years at the earliest, maybe even ten. It takes a long time to find investors willing to trust you because several similar ventures with almost identical business models have already gone bust and the investment horizon is far too long for many. Nevertheless, you persevere, and you manage to convince a few investors.

You hire astronomers to identify asteroids with valuable metals such as platinum. You send unmanned probes to several near-Earth asteroids to collect samples. The first few turn out to be of little value. The costs are too high and outweigh any potential profits.

Then comes the breakthrough: You find a suitable asteroid, and you succeed in bringing platinum group metals all the way back to Earth. But then a group of countries files a lawsuit against you. They are all signatories to the so-called Moon Agreement of 1979, formally known as the "Agreement Governing the Activities of States in the Moon and other Celestial Bodies," which came into effect in 1984. The treaty applies not only to the moon, but to all celestial bodies, including asteroids.

Some of these countries are now demanding that you hand over a significant share of your profits to people who have never had anything to do with asteroid mining—many of whom couldn't even say exactly what an asteroid is, let alone launch rockets into orbit. They invoke Article IV, Paragraph 1, and Article XI, Paragraphs 1 and 3, of the Moon Agreement, which state: "The exploration and use of the Moon shall be the province of all mankind and shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic and scientific development. Due regard shall be paid to the interests of present and future generations as well as to the need to promote higher standards of living and conditions of economic and social progress and development in accordance with the Charter of the United Nations." So much for Article IV.

Article XI states: "The Moon and its natural resources are the common heritage of mankind. Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person."

The Moon Agreement, since signed by 22 countries and ratified by 18, was developed to work in the same way as seabed law, and a delegate from Sri Lanka explained in simple terms what the intention was: "If you touch the nodules [valuable mineral deposits on the seabed] at the bottom of the sea, you touch my property. If you take them away, you take away my property."

The plaintiffs now demand their "rightful share" of your profits, arguing that the platinum belongs not to you, but to all of humanity—and especially to developing countries, many of which are not yet engaged in space exploration. Should the plaintiffs win, neither you nor any other company would ever be able to attract investors again. Asteroid mining would be dead and buried after this very first attempt.

Mars Without Property Rights

Suffice it to say: Investors can remain confident, as a lawsuit based on a treaty signed by only a small number of countries is unlikely to succeed. But consider a second thought experiment:

It is the year 2075. The first settlements on Mars have been successfully established, housing several thousand people and many more robots. The settlers are busy building underground houses and domed communities, a hospital, and other facilities. But there is a problem: Unlike on Earth, there is no private property ownership on Mars. The settlers have repeatedly attempted to establish private property rights and even create a digital land registry, but legal experts keep putting a stop to their efforts. This time, the problem is not the 1984 Moon Agreement, but the 1967 Outer Space Treaty (OST), Article II of which states: "Outer space, including the Moon and other celestial bodies is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means."

And Article I of the treaty states that the use of outer space "shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind."

In this case, the argument that the Moon Agreement has limited signatories cannot be made, as 117 countries are parties to the Outer Space Treaty—including all major spacefaring nations, such as the United States, China, and Russia—and another 22 are signatories.

The plaintiffs assert that Article II of the Treaty prohibits not only the national appropriation of celestial bodies, but also any form of private property ownership. They further contend that Article I should be interpreted as mandating the equitable sharing of proceeds from resource extraction among all nations—an interpretation that has sometimes been put forward in the real world.

For now, let us assume their interpretation is correct. There are no property rights: Nations cannot own land (which they could potentially lease), nor can private entities, since any form of appropriation by states or private individuals is prohibited. Could such a society exist, let alone be economically successful? Of course not.

Most successful countries permit the private ownership of land. Where this right does not exist, it is at least possible to buy usage rights from the state for 50–99 years, which can also be resold—as in Vietnam and China, for example, or (regarding the 99 years) in Singapore. North Korea is the only country where even that is not possible. Property ownership on Mars would therefore be most comparable to that in North Korea, a country plagued by widespread poverty where people go hungry after every poor harvest. Do you believe a settlement on Mars could be successful if its economic model mirrored that of North Korea?

The Legal Debate Over Private Ownership in Space

The decisive factor in determining whether private property rights apply is Article II of the OST. Legal scholars have put forward differing viewpoints over its interpretation. The primary area of contention revolves around the "prohibition of appropriation" and whether this applies only to the states expressly mentioned in the treaty or also to private individuals and companies not mentioned in Article II.

In Outer Space: Problems of Law and Policy, Glenn H. Reynolds and Robert P. Merges contend that: "Being prevented from claiming sovereignty and exclusive property rights located in the space environment for themselves, it will be argued that States are also prohibited from granting quasi-sovereign and exclusive property rights over such areas and resources to those natural and juridical persons which are subject to national jurisdiction and which are created through international agreements."

Those who argue that appropriation by private individuals is prohibited, also assert that private ownership would infringe upon the freedoms of access, exploration, and use guaranteed to all states in Article I. If private property rights existed, argues space law expert Marcus Schladebach, this would impinge upon the freedoms granted to all states, and the legal status of outer space as a "global commons" beyond territorial sovereignty would be jeopardized. If national appropriation is prohibited, Schladebach maintains, then private appropriation must be prohibited all the more.

In contrast, other legal scholars argue the exact opposite: National sovereignty stops where outer space begins, which means that national appropriation of the moon, other planets, and asteroids is forbidden—but not the private ownership of celestial bodies. This interpretation rests on the legal doctrine expressio unius est exclusio alterius: the explicit mention of one thing implies the exclusion of others. If, for example, a statute or treaty expressly mentions one or more things of a class, it is only reasonable to conclude that others of the same class remain unrestricted by that statute or treaty. This principle serves to interpret legal norms and supports the assumption that things not mentioned were excluded by deliberate choice, not inadvertence.

Other legal scholars, however, argue that while it is not forbidden for private individuals or companies to claim property, it is a crime for a nation to recognize such a claim publicly. This interpretation, however, confuses the terms "recognize" and "confer," as the legal scholars Alan Wasser and Douglas Jobes explain: "'To recognize' means to 'acknowledge the existence, validity, or legality of' or 'accepts, acquiesces to, decides not to contest.' In contrast, 'to confer' means to 'grant (a title, degree, benefit, or right).'"

They go on: "If a nation claims the right to confer, give, or grant title to lunar land, it could be violating the ban on national appropriation. But if a settlement is established and the settlers claim private ownership of land around their settlement, and a dozen of Earth's nations recognize the settlers' claim, it is not reasonable to say that all dozen nations are trying to appropriate the land and thus are violating the Outer Space Treaty."

Still others argue based on various provisions of the Outer Space Treaty, which, for example, hold states liable if a rocket launched by a private company from their territory crashes in another country. Furthermore, they claim, states are obligated to authorize and supervise the activities of private companies located within their territories. From this, they conclude that, even if not explicitly stated, the Outer Space Treaty prohibits private appropriation.

Wasser and Jobes rightly object to this: "But the treaty clearly does not contain any language explicitly saying that states may not authorize their citizens to do anything that they themselves cannot do, contrary to what some authors appear to assume. The treaty does not say that what is prohibited to states is therefore prohibited to private entities, nor that what is prohibited to the regulator is therefore always prohibited to the regulated. A baseball coach gives 'authorization and continuing supervision' to his players. Does the fact that the coach is not allowed to run onto the field to catch a fly ball mean the players he supervises cannot either?"

The wording of Article I of the Outer Space Treaty states that outer space is "the province of all mankind" and that celestial bodies should be "free for exploration and use by all States without discrimination of any kind on basis of equality" and "there shall be free access to all areas of celestial bodies." Critics argue that this turns space into a public good whose owner is everybody and nobody.

The only relatively undisputed point is that the OST is ambiguous in several areas, particularly concerning private property ownership and the role of private companies. This ambiguity stems from the priorities of the United States and the Soviet Union at the time of the OST's drafting. Their primary focus was on preventing an arms race in space and the deployment of weapons of mass destruction there. The concept of private space companies, including business models that would allow private companies to engage in asteroid mining, was a distant prospect in 1967. Consequently, the issue of private ownership was secondary for both nations. However, the Soviet Union would have preferred to prohibit private companies in space during the treaty negotiations, a proposal the United States rejected. So, they did what national governments sometimes do in joint international declarations or treaties: The language was kept vague and omitted contentious issues, which is what leads to the difficulties interpreting it today.

How Nations Are Writing Their Own Rules

Many years later, some countries felt the need to clarify the issues that had remained ambiguous at the time. We have seen that—unlike Article II of the Outer Space Treaty—Article 11, paragraph 3 of the Moon Agreement explicitly prohibits private ownership in outer space.

The Moon Agreement, which not only explicitly prohibits private property but, according to some interpretations, even demands an egalitarian distribution of the profits generated by private users, breathes the spirit of socialism. "At its heart," says space analyst and consultant Rand Simberg, "the Moon Treaty was redistributionist in nature, taking from those who were willing to take risk and invest capital in developing new resources and giving to those who did not."

Most countries refused to sign it, albeit for different reasons. This raises the question: If the Moon Agreement merely precisely regulated exactly what the Outer Space Treaty intended—that is, if the Moon Agreement simply served as a concretization of the Outer Space Treaty—then why did 121 of the 139 states that signed the Outer Space Treaty refuse to sign the Moon Agreement? Oddly enough, this question is rarely asked.

What can be done when a treaty, in this case the OST, is open to so many different interpretations? First, it could be renegotiated. For example, in 1999, Ezra Reinstein argued: "What is needed is an amendment to the Outer Space Treaty, one that both clarifies and expands property rights in space." First, Reinstein insists, it must be clarified in the amendment that the formulation, "'for the benefit…of all countries' is a moral exhortation and not a loophole through which the United Nations can dispossess a private party of his site." The fact that Reinstein considered these clarifications important enough to include in an amendment once again underscores the vagueness and legal uncertainty of the Outer Space Treaty.

However, this is just one potential avenue and probably not a likely one. In recent years, the U.S. has adopted a different strategy, one that is certainly a step in the right direction: If a treaty is subject to varied interpretations by different countries, it increasingly becomes the responsibility of national legislators to interpret the treaty. And this is what has happened in recent years, especially in the United States, where Sen. Ted Cruz (R–Texas) and then-Sen. Marco Rubio (R–Fla.) championed a Commercial Space Launch Competitiveness Act, signed into law by President Barack Obama in 2015. This gave all U.S. citizens and companies the right "to possess, own, transport, use, and sell [any] asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States."

In April 2020, President Donald Trump went a step further than Obama by signing an "Executive Order on Encouraging International Support for the Recovery and Use of Space Resources," explicitly rejecting the notion of space as a "global commons." The Moon Agreement, which the U.S. had never signed anyway, was also explicitly dismissed.

This executive order was followed just one month later by NASA announcing the Artemis Accords, officially called "Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets and Asteroids for Peaceful Purposes." One key element of the Accords is the introduction of what are referred to as "safety zones"—geographically defined areas around a station or activity on the moon or another celestial body. These zones are not intended to contradict territorial appropriation, but rather to serve the practical implementation of the principle of peaceful use and to prevent potential conflicts arising from activities that are too close to one another. Section 10 of the Accords explicitly states: "The Signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty, and that contracts and other legal instruments relating to space resources should be consistent with that Treaty."

The Accords were initially signed by eight nations: the United States, Australia, Canada, Italy, Japan, Luxembourg, the United Arab Emirates, and the United Kingdom. Since then, the number of signatories has expanded to 67. Russia and China, however, have rejected the accords and criticized their interpretation of the Outer Space Treaty. China, in particular, is concerned that the United States may be using the Artemis Accords to assert sovereignty over lunar resources.

While the Artemis Accords were a step forward, the language suggesting that space mining does "not inherently" violate Article II—which prohibits "national appropriation"—has again created ambiguity, as space law scholars Michael Byers and Aaron Boley point out in their book Who Owns Outer Space?: "Is Space mining sometimes 'national appropriation' and sometimes not? Was Space mining originally not 'national appropriation,' but capable of becoming understood as 'national appropriation' as understandings and interests change? Can a term such as 'national appropriation,' which has no 'ordinary meaning' because it is not used outside the Outer Space Treaty, 'inherently' mean anything?"

Designing a Space Economy That Actually Works

What should the goal be? Without full private ownership, there will be no colonization of Mars, and the economic exploitation of asteroids and the moon will also be difficult. And who should own land on Mars or the moon first? Various people, including the American Dennis Hope, have made a business out of selling land on the moon without being able to clearly explain why they consider themselves entitled to do so. Space law expert Virgiliu Pop has written an entire book with the delightfully evocative title Unreal Estate: The Men Who Sold the Moon, in which he establishes that from the 1890s to the present day, numerous individuals have claimed ownership of the moon or other celestial bodies—and found plenty of buyers for their properties. It should be clear, he writes, "that claims to extraterrestrial real estate unsubstantiated by physical acts of possession are not valid means of acquiring ownership….A mere claim is not tantamount with ownership—or, in plain language, claiming does not mean owning."

But apparently, the desire to claim ownership of property in space is so strong for some that it overrides their reason. At the same time, it's also good news to see so much interest in plots on the moon. Six million customers are said to have bought from Hope. These transactions offer hope that there will be sufficient interest when plots of land do actually become available on the moon or Mars, although they will be much more expensive than Hope's offerings.

So, who should have the right to acquire property in space? My answer: those who have the financial means to get there, develop, and use the land. For instance, if SpaceX succeeds in reaching Mars and starts to build permanent settlements on the red planet, then the ownership of land should go to SpaceX first. Not of the entire planet, of course, but of a practicable area, for example the size of Singapore. The surface area of Mars is 200,000 times that of Singapore, so SpaceX would initially only own 0.0005 percent of Mars. That would be enough to develop multiple settlements, but not so many that others would no longer have a chance.

SpaceX could fund its flight and development costs by listing the land on Mars in a real estate investment trust (REIT). The price would then be determined by the market. Most people would buy shares not to live there themselves, but in the hope of value appreciation. As an incentive for people to settle on and develop Mars, colonists could be offered stocks at a preferential price as a "golden hello" once they reach Mars and spend at least five years there.

When the Chinese reach Mars, they may assert their claim to plots of land on the planet according to the idea outlined above, and this would probably remain the property of the Chinese state. But it is likely that they would adopt the customary practice in China of selling hereditary building rights for a period of 50–70 years.

However, we would need to tread carefully: If the Chinese were the first to reach Mars, it is possible they would declare the entire planet as belonging to China. This would constitute a clear violation of Article II of the Outer Space Treaty, but according to Article XVI, the treaty can be terminated with one year's notice. The potential response from the United States in such a scenario raises concerns—would it lead to war? Or sanctions? Therefore, it would be prudent to negotiate a new space treaty before it is clear who wins the new space race. Moreover, competition for premium real estate on Mars, such as in areas with anticipated water sources or suitable lava caves for settlement, would likely ensue. It could be similar on the moon.

As far as asteroids are concerned, at least in the case of smaller celestial bodies, ownership could be granted to those capable of mining and extracting resources such as water and platinum. The best option would probably be to list the entire asteroid on the stock exchange as a REIT, which would fund mining operations and enable shareholders to receive dividends from the extraction of raw materials. Even before a single dollar was earned, or a single penny in dividends could be paid out, this would allow a market for trading in such stocks to develop.

While this is all just a thought experiment, it illustrates the direction things would need to go in. Whether these ideas are realistic or if different concepts will prevail is something no one can know today.

Why the Case for Space Socialism Doesn't Work

One thing, however, is absolutely clear: As long as there is no legal certainty for investors, they will not invest. To return to the starting point: Who will invest in asteroid mining if, as some envision, they are expected to share the profits with others who have taken no risk themselves but simply want to profit as free riders?

The best-selling authors Kelly and Zach Weinersmith cite the Moon Agreement as a model in their book A City on Mars: "The Moon Agreement would have set up the solar system as a particularly communal form of res communis, known in international law as 'common heritage of mankind' or just 'CHM'…a commons collectively owned by all of humanity. If the Moon were under a CHM framework and you wanted to use Moon water, you would have to compensate all of humanity by some means."

They envision something like a large international planning authority to regulate how the proceeds are distributed: "An international regime to oversee exploitation…a big entity established by states that were parties to the Moon Agreement looking over things, and in particular making sure developing nations got a fair cut." This international regime would regulate both "where people are allowed to set up shop and what they're allowed to do with the local resources once they get there. It wouldn't be dynamic, it wouldn't be like a science fiction novel, and frankly it would be very slow and bureaucratic and boring." In this vision, there would be no room for private companies, no room for the formation of fair prices in the market, no room for entrepreneurial ingenuity. It is space socialism, doomed from the start.

On Earth, only capitalism has worked, but for a few decades, socialist systems without private property were also able to survive, albeit at the cost of widespread poverty, authoritarian rule, and famine. In space, where the challenges are immensely greater and living conditions infinitely harsher, socialism would be doomed from the outset.

The question of whether establishing private property rights on celestial bodies will be possible, and whether Martians will opt for a capitalist or socialist system, is essentially the same as asking whether colonization is possible at all. Even if Martian settlers were initially prohibited from establishing property ownership and introducing a capitalist system, they would inevitably have to do so sooner rather than later anyway, because they simply couldn't exist on the red planet otherwise. I'm sure the Martian settlers won't care all that much about a space treaty signed over 100 years ago and would establish private property rights. And how would Earth's governments respond? Would they wage war against the Martian settlers, or kill them with sanctions?

This article is adapted from New Space Capitalism: The Entrepreneurial Path to the Stars by permission of Skyhorse.

The post Why You Can't Settle Mars or Colonize the Moon Without Real Property Rights appeared first on Reason.com.

J.D. Vance and Mike Johnson Slam L.A. Mayoral Primary Outcome

2026-06-09T21:00:10Z

On this segment of Free Media, Senior Editor Robby Soave and Daily Caller Editor in Chief Amber Duke discuss recent comments by Vice President J.D. Vance and House Speaker Mike Johnson (R–La.) questioning California's vote-counting process. Their skepticism comes amid renewed Republican criticism of the state's slow election results, which California officials say are largely due to mail-in ballots, signature verification, and rules allowing properly postmarked ballots to arrive after Election Day.

The post J.D. Vance and Mike Johnson Slam L.A. Mayoral Primary Outcome appeared first on Reason.com.

Trump's $100,000 H-1B Visa Fee Is an Unconstitutional Tax, a Federal Judge Rules

2026-06-09T20:10:32Z

President Donald Trump violated the separation of powers when he announced a new $100,000 fee for H-1B visa applications last September, a federal judge in Boston ruled on Monday. Trump's policy "imposes a tax on H-1B petitions without the requisite delegation by Congress," wrote U.S. District Judge Leo Sorokin, a Barack Obama appointee. He also concluded that the policy violated the Administrative Procedure Act because it exceeded the president's statutory authority and was implemented in an "arbitrary and capricious" manner.

Sorokin's decision, which completely vacates the visa fee, contrasts with a December 23 ruling by a federal judge in Washington, D.C. Beryl Howell, also an Obama appointee, thought the visa fee was justified by "a straightforward reading of congressional statutes giving the President broad authority to regulate entry into the United States."

Sorokin was responding to a lawsuit by California and 19 other states, while Howell was assessing claims by the U.S. Chamber of Commerce. Unsurprisingly, the disagreement between the two judges hinges mainly on statutory interpretation. But it also involves a constitutional question: whether Trump's visa fee usurped the tax power that Article I assigns to Congress.

In 1990, Congress amended the Immigration and Nationality Act (INA) to create the H-1B program, which is designed to accommodate employers who want to hire foreign workers for jobs requiring "theoretical and practical application of a body of highly specialized knowledge." The workers must have at least a bachelor's degree (or the equivalent) in a relevant field. H-1B visas are capped at 85,000 a year, and employers previously could expect to pay fees up to $5,000 for each one.

That changed in September, when Trump issued a proclamation that prohibited entry under H-1B visas "except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000." He presented that fee, which he said would be in effect for a year "absent extension," as a response to abuse of the program, which he said "has been deliberately exploited to replace, rather than supplement, American workers with lower-paid, lower-skilled labor."

Trump averred that "the large-scale replacement of American workers through systemic abuse of the program has undermined both our economic and national security." Allowing employers to hire high-skilled foreign workers without shelling out $100,000 for the privilege, he declared, "would be detrimental to the interests of the United States because such entry would harm American workers, including by undercutting their wages." The proclamation authorized the secretary of homeland security to make exceptions he determines are "in the national interest."

As Howell saw it, that new policy fit comfortably within "the executive's broad authority under the INA." The main INA provision on which Trump relied, 8 USC 1182(f), says: "Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate." Another provision, 8 USC 1185(a)(1), authorizes the president to issue "reasonable rules, regulations, and orders" regarding the entry and removal of aliens.

The interaction between those two provisions, Howell said, "illuminates the full breadth of the authority handed to the President over time by Congress to regulate entry into the United States." Whether interpreted as a "restriction" under Section 1182(f) or a "regulation" under Section 1185(a)(1), she concluded, the new requirement for H-1B visas was clearly authorized by the INA.

Howell rejected the argument that the new visa fee amounts to an unauthorized tax. "The Taxing Clause does not impose on Congress a heightened requirement to make a valid delegation to the President, and Congress was clear in its delegation," she wrote. "Section 1182(f) uses exceeding[ly] broad language, including that the regulation might occur 'for such period as he shall deem necessary' and may entail 'any restrictions he may deem to be appropriate.'" That language, she said, "is sufficiently broad to encompass a regulation requiring an additional payment obligation for entry of a nonimmigrant H-1B visa worker."

Howell acknowledged the Chamber of Commerce's complaint that the $100,000 fee "would inflict significant harm on American businesses and institutions of higher education, which would be forced to either dramatically increase their labor costs or hire fewer highly skilled employees for whom domestic replacements are not readily available." She said there was also "some force" to the trade group's argument that Trump failed to consider that "these harms to American businesses and higher education will also be a boon to America's economic rivals, who will surely welcome the talent no longer able to accept work in the United States." But she noted that "the relevant analysis focuses on constitutional and statutory powers, not economic policy."

Sorokin applied the same analysis but came to dramatically different conclusions. The relevant Supreme Court precedents support "a finding that the $100,000 payment requirement amounts to a tax, not a penalty," he wrote. And last February in Learning Resources v. Trump, he noted, the Court held that the International Emergency Economic Powers Act (IEEPA) did not authorize Trump to impose tariffs, rejecting his argument that the power to "regulate…importation" included the power to tax imports.

The INA provisions cited by Trump "allow the President to impose 'restrictions,' 'rules,' 'regulations,' 'orders,' 'limitations,' and 'exceptions' to the entry of noncitizens to the United States," Sorokin noted. "Like the powers delineated in the IEEPA, none of
these terms, by their ordinary meaning, include the power to tax."

Although Section 1182(f) "arguably contains sweeping, discretion-conferring language," Sorokin said, "Defendants point to no other provision in the INA or elsewhere making it clear that Congress intended to delegate the taxing power." He added that "Defendants' miscellaneous arguments that the President has the authority to impose the $100,000 tax based on his 'immigration and commerce powers' are nowhere to be found in the authorities they cite."

Sorokin acknowledged that Trump's proclamation "can be understood as creating an entry restriction—a type of measure that Congress committed to the President's discretion." But that appearance is deceptive, he said, because "the Proclamation's payment requirement amounts to a tax, which exceeds the scope of the President's discretionary authority under the INA."

The INA allows the Department of Homeland Security to charge "adjudication fees" that "may be set at a level that will ensure recovery of the full costs of providing all such services" and of "any additional costs associated with the administration of the fees collected," Sorokin noted. "The $100,000 payment requirement plainly does not constitute an adjudication fee under this statutory provision. As Defendants concede, the Proclamation 'does not impose a fee to cover costs, does not displace that fee, and is not collected or used in the same manner.' Defendants point to no other statute empowering agencies to impose a tax on H-1B petitions."

The Administrative Procedure Act instructs courts to "set aside" agency actions that are contrary to law. Accordingly, Sorokin's order vacates "the Policy materials" implementing the $100,000 fee.

Trump was not pleased. "These federal judges are really giving us a hard time," he complained on Tuesday. "It is really crazy what's going on with the court system."

The Trump administration presumably will ask the U.S. Court of Appeals for the 1st Circuit to review Sorokin's decision. Meanwhile, the Chamber of Commerce is asking the U.S. Court of Appeals for the D.C. Circuit to reverse Howell's contrary ruling.

The post Trump's $100,000 H-1B Visa Fee Is an Unconstitutional Tax, a Federal Judge Rules appeared first on Reason.com.

Office of Legal Counsel Concludes That Disparate Impact Liability Under Title VII Is Unconstitutional

2026-06-09T20:02:15Z

In 2009, the Supreme Court decided Ricci v. DeStefano. The Justices reversed Judge Sonia Sotomayor's indefensible ruling against the Frank Ricci and the other firefighters. But the Court stopped short of deciding whether New Haven's attempt to avoid liability for disparate impact violated the Equal Protection Clause. Justice Scalia concurred to explain the Court was merely postponing the inevitable question:

But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them.

Nearly two decades later, with a very different Supreme Court, this question is now primed for resolution.

Today the Office of Legal Counsel issued an opinion finding that the EEOC's Title VII guidelines are unconstitutional.

EEOC's existing interpretations, including the Uniform Guidelines on Employee Selection Procedures ("Guidelines"), embrace an unconstitutional reading of Title VII. Rather than treating disparate impact as an evidentiary mechanism to smoke out intentional discrimination—imposing liability only when disproportionate adverse effects give rise to a strong inference of intentional discrimination—EEOC's historic interpretations contemplate liability based on disproportionately adverse effects alone, without regard to an employer's likely intent. Because EEOC's historic approach divorces liability from circumstances giving rise to a strong inference that intentional discrimination occurred, it functions as a qualified racial-proportionality mandate and spurs employers to engage in race-based decisionmaking to avoid liability. That approach is unlawful and unconstitutional.

The opinion relies on Allen v. Milligan, which declared for the first time that our Constitution is "color-blind."

Three corrections to that approach are necessary "to resolve the ten-sion between [disparate-impact] claims under [Title VII] and our color-blind Constitution." Allen v. Milligan, No. 25A1314, 2026 WL 1552756, at *1 (U.S. June 2, 2026) (per curiam).

As I observed, this emergency docket opinion may become more significant than Callais, a theme that the Wall Street Journal picked up. Allen made clear that Callais applies to the Equal Protection context. Indeed, the Opinion links Callais back to the Justice Alito's TJ dissental.

Even facially race-neutral actions, when mo-tivated by the purpose of altering racial balance, constitute intentional discrimination against the members of the racial group who are balanced down. After all, "if race played a role in a decision made by a govern-ment actor," or at the behest of a government actor, then race discrimi-nation has occurred and "strict scrutiny applie[s]." Louisiana v. Callais, 146 S. Ct. 1131, 1146 (2026); see also Coal. for TJ v. Fairfax Cnty. Sch. Bd., 146 S. Ct. 541, 545 (2024) (Alito, J., dissenting from denial of certiorari).

This opinion is earth-shattering. The Department of Justice ruled that disparate-impact compels employers to engage in unconstitutional race discrimination.

Just as "the Federal Government is prohibited from discriminating on the basis of race," so too is it "prohibited from enacting laws mandating that third parties—e.g., employers, whether private, State, or munici-pal—discriminate on the basis of race," unless those laws survive strict scrutiny. Ricci, 557 U.S. at 594 (Scalia, J., concurring) (first citing Bol-ling, 347 U.S. at 500; and then citing Buchanan v. Warley, 245 U.S. 60, 78–82 (1917)). And just as it is unconstitutional for the federal govern-ment to "force[] States to engage in the very race-based discrimination that the Constitution forbids," Callais, 146 S. Ct. at 1142; see also Miller v. Johnson, 515 U.S. 900, 926–27 (1995), so too it is unconstitutional for the federal government to coerce employers to adopt employment policies or make employment decisions motivated by race. Disparate-impact liability does not just raise constitutional doubt in occasional cases; unless narrowly circumscribed, it structurally compels the very racial discrimination that the Constitution forbids.

In the same way that Callais "updated" Gingles, this opinion calls on the Court to "update" Griggs:

Reading Griggs in context and together with the Supreme Court's more recent precedent requires "updat[ing] the framework" for dispar-ate-impact liability "to ensure a constitutional reading and application of" Title VII. Callais, 146 S. Ct. at 1157, 1161 (updating the framework for claims under section 2 of the Voting Rights Act). As Justice Scalia suggested in Ricci, a properly tailored disparate-impact scheme might constitutionally operate as "an evidentiary tool" to "smoke out" practices that present a significant likelihood of intentional discrimination. 557 U.S. at 595 (Scalia, J., concurring); see also City of Rome v. United States, 446 U.S. 156, 177–78 (1980).

This is a similar approach to the one that the Supreme Court took in Callais, which held that section 2 of the Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437, "imposes liability only when the circum-stances give rise to a strong inference that intentional discrimination occurred." . . . Applying Griggs, Wards Cove, Inclusive Communities, and Callais, we identify three limiting principles on disparate-impact liability that prevent a constitutional collision under current Supreme Court prece-dent. We emphasize, as the Supreme Court has, that no single limiting principle is wholly sufficient; rather, each caveat is essential to avoid the conclusion

I suspect the EEOC will bring suit against firms that have made race-conscious decisions to avoid disparate impact suits (or more likely because they agree with separating people based on race). At that point, the constitutionality of disparate-impact is squarely teed up.

Kudos to Assistant Attorney General Elliot Gaiser and Deputy Assistant Attorney General Josh Craddock for putting forth this remarkable opinion. I also have to give credit to my Manhattan Institute colleague, Gail Heriot, who is cited throughout the opinion. Gail has been beating this sometimes-lonely drum for decades. And she has been right for decades.

The post Office of Legal Counsel Concludes That Disparate Impact Liability Under Title VII Is Unconstitutional appeared first on Reason.com.

My New Washington Post Op ed on NYC Mayor Mamdani's Unconstitutional Housing Policy

2026-06-09T22:29:21Z

The Washington Post just published my article "Build Homes, Don't Seize Them, Mayor Mamdani." Here is an excerpt:

"Block by Block," Zohran Mamdani's "sweeping blueprint" to reduce housing prices in New York City, comes with a dangerous promise. "When necessary," the mayor said on May 26, "we will take aggressive legal action to remove negligent owners and property managers" and transfer ownership to "responsible stewards." The problem: The proposal is an unconstitutional power grab that would exacerbate the city's housing crisis.

The Fifth Amendment's takings clause stipulates that the government may not take "private property" for public use without "just compensation." There is a long-standing debate over the extent to which regulations that constrain the use of property but don't seize it outright qualify as takings. Virtually all jurists and legal scholars, however, agree that outright confiscation does….

If the government could expropriate property at will, it could pursue widespread seizure from anyone using property in ways the party in power disapproves of, or for purposes of transferring it to cronies and favored constituencies. Such abuses are common in authoritarian states, which is one reason the founders inserted the clause into the Bill of Rights in 1791. James Madison and others supported it in part because of arbitrary confiscation by British authorities.

The mayor's proposal doesn't just violate the federal and state constitutions, which have nearly identical restrictions on takings. It would also make the city's shortages worse. Faced with the prospect of potential expropriation, many owners would likely withdraw properties from the market or not list them in the first place. New York's rent-stabilization laws have already induced owners to abandon thousands of apartments that can't be profitably maintained or upgraded. The mayor seeks to make city policy more severe by "freezing" rents for hundreds of thousands of units, preventing even the modest increases permitted under current law….

The mayor often decries the city's "systemic inequities" that have made living there more onerous. A great opportunity to make good on that rhetoric would be to target the real barriers to access: the exclusionary zoning rules that severely limit the amount and types of housing that can be built on most of the city's residential land….

Mamdani has rightly praised cities like Austin, Minneapolis and Auckland, New Zealand, which have seen the virtue in empowering private owners to build new housing. Such YIMBY — or "yes in my backyard" — zoning deregulation reliably increases supply and reduces prices. The "Block by Block" plan includes a few steps in this direction…. But the effect of such measures would be muted by expropriation and expanded rent control…..

The political right has its own snake-oil housing policies. Tariffs and mass deportation of immigrants make housing more expensive by increasing the price of building materials and the costs of construction, respectively….

But counterproductive right-wing policies don't justify Mamdani's. To alleviate the "deepening housing crisis," stop digging a hole with more government control of the kind that caused it in the first place.

The post My New Washington Post Op ed on NYC Mayor Mamdani's Unconstitutional Housing Policy appeared first on Reason.com.

Evidence Destroyed or Lost in Death of ICE Detainee That Was Ruled a Homicide

2026-06-09T18:29:02Z

A Government Accountability Office (GAO) audit released today said evidence was destroyed or went missing regarding the death of Geraldo Lunas Campos, a federal immigration detainee whose death a medical examiner later ruled a homicide by asphyxiation.

The GAO reported that Immigration and Customs Enforcement (ICE) filed a "discrepancy report" in February noting that the private contractor that previously operated the Camp East Montana detention facility in Texas had failed to provide the agency with use-of-force and death reports regarding a January death of a detainee by use of force. The GAO report does not name the detainee, but the details match Lunas Campos, who died on January 3 after an altercation with guards at the camp.

"In addition, evidence associated with the incident was missing or destroyed," the GAO report said.

The Department of Homeland Security (DHS) initially claimed that Lunas Campos had attempted to commit suicide and died during a struggle in which "guards were trying to save him." However, the El Paso Medical Examiner's Office ruled his death a homicide by asphyxiation. Multiple detainee witnesses told news outlets that guards choked Lunas Campos to death after he refused to stop asking for his medication.

"The officers entered, grabbed him," one detainee told Zeteo, "and the last thing we could hear him say was: 'They are choking me, they are choking me.'"

An internal ICE inspection of Camp East Montana earlier this year uncovered dozens of violations of national detention standards, including failures to document use-of-force and medical care, and failure to respond to grievances about lack of medical care. A detainee with tuberculosis wasn't isolated; another detainee escaped.

The GAO report also found that ICE wasted millions of dollars expediting the awarding of the contract and the opening of Camp East Montana. ICE terminated its contract and switched to a new private contractor in April.

DHS did not respond to an inquiry for additional details regarding the missing or destroyed evidence. However, a DHS spokesperson says the new contractor will "allow Camp East Montana to continue abiding by the highest detention standards WITH the ability to provide MORE medical care on-site."

"This contract also allows more on-site staff and a PRECISE quality assurance surveillance plan," the spokesperson continued. "ICE will have even more oversight of the contractors at this facility. Far from closing, Camp East Montana is upgrading."

Allegations of medical neglect, brutality, and lack of due process have poured out of federal immigration detention centers since the Trump administration launched its mass deportation program. Another medical examiner's report recently obtained by Reason found that an ICE detainee died of complications from a severe tooth infection.

Since Trump's second inauguration, 50 people have died in ICE custody.

The post Evidence Destroyed or Lost in Death of ICE Detainee That Was Ruled a Homicide appeared first on Reason.com.

Nude Shrek Text to Ohio State Senator Reportedly Lands Blogger in Jail

2026-06-09T18:00:17Z

An Ohio courtroom may soon have to determine whether a blogger should face jail time for texting an image of Shrek's penis to a public official.

Last week, The Columbus Dispatch reported that D.J. Byrnes—an Ohio blogger who runs a Statehouse gossip Substack called The Rooster—was arrested on a misdemeanor warrant at the Ohio Statehouse. Byrnes' arrest, according to reporting by Signal Ohio, likely stems from a picture he texted to state Sen. Jerry Cirino (R–Kirtland) on May 6. The offending image? A "digitally altered version of Shrek, the ogre with a titular children's movie franchise, with his penis exposed," according to Signal Ohio. Police records did not identify Cirino by name, but the outlet confirmed he was the "recipient of the text messages based on the text messages themselves and other details within the police report."

An affidavit with Byrnes' arrest report described the ogre as "fully nude with an exposed and erect humanlike penis engaged in an act of masturbation," according to the outlet. The text exchange also included a message calling Cirino "Young Mussolini."

On May 8, Cirino reportedly emailed the Kirtland Police Department asking officers to file charges against Byrnes.

"Not only is the message harassing but the disgusting picture is pornographic in nature and not something I want to see on any of my devices," said the email sent to Kirtland police.

After his arrest on June 1, Byrnes was booked into the Franklin County Jail, where he says he spent 23 hours in custody, according to a statement posted on The Rooster. The Columbus Dispatch reported that he was released on bond on June 2. Byrnes wrote that he would not comment on the specifics of the allegations, but he says he believes he will be found innocent in court. He was arrested on telecommunications harassment charges, according to Signal Ohio, and could face up to six months in jail.

In its analysis of the case, the Foundation for Individual Rights and Expression (FIRE), a pro–free speech organization, cautioned that, "as in essentially all First Amendment cases, context and details matter." Based on the available facts, however, the organization wrote that "Byrnes should not be facing telecommunications harassment charges."

FIRE argues that Byrnes' "shrexting" did not amount to obscenity because the image fails to pass the three-prong obscenity test set by Miller. v. California: Would the average person see the work as appealing "to the prurient interest"? Does it depict sexual conduct in a "patently offensive way" as defined by state laws? And finally, does the work lack "serious literary, artistic, political, or scientific value"? The text was clearly a piece of "political mockery," and it was not intended to "arouse anyone's sexual interest," FIRE wrote, meaning it fails the Miller test. The "handful of afternoon texts," from what FIRE reviewed, did not constitute harassment either.

More details about Byrnes' case may emerge when he appears in court, but if a public official did in fact direct the police department to arrest Byrnes because of his texts, that poses a clear threat to free speech. The Shrek image may be absurd, shocking, and hilarious (depending on your sense of humor), but being punished for exercising your free speech right to criticize and troll (or ogre) public officials is no laughing matter.

The post Nude Shrek Text to Ohio State Senator Reportedly Lands Blogger in Jail appeared first on Reason.com.

Streamlining and Taxes

2026-06-09T17:32:03Z

Happy Tuesday and welcome to another edition of Rent Free.

This week's newsletter takes a look at some recent state-level policy changes in New York, where lawmakers passed streamlining reforms to the state's environmental review law for the first time in decades while also layering on new taxes on second homes.

Meanwhile, in Portland, Oregon, city-sponsored affordable housing approaches financial collapse, and rent control continues to suppress new development in Saint Paul, Minnesota.

In New York, Some Streamlining…

At the tail end of last month, the New York Legislature belatedly passed a state budget bill that includes a handful of housing policy changes.

That includes some streamlining reforms to the State Environmental Quality Review Act (SEQRA). Like the California Environmental Quality Act and the National Environmental Policy Act, SEQRA requires governments to review the environmental impacts of discretionary actions they take.

Housing projects that require a rezoning, public subsidy, or special permit may be required to perform SEQRA reviews. Study periods can last anywhere from six months for smaller projects that are subject to a lesser level of review to close to three years for more significant rezonings.

Like other environmental review laws, SEQRA also allows third parties to sue when they believe a project was approved without a thorough enough environmental review.

In 2024, state courts decided 43 SEQRA lawsuits. Only 10 of those involved housing projects, and of those, only one housing project was ultimately stopped by the courts.

Even so, lawsuits are expensive, particularly SEQRA lawsuits that can last years.

"The mere threat of legal challenges increases the time, cost and uncertainty for projects that already undergo extensive environmental review," writes Sean Campion, the director of housing and economic development studies at the Citizens Budget Commission, for Vital City.

Democratic Gov. Kathy Hochul had proposed excluding some housing projects from SEQRA review as part of her Let Them Build plan.

The reforms passed as part of the budget in late May exempt rezonings, site plan approvals, and other land use actions done to allow denser housing projects of up to 500 units on infill lots.

You can read more detailed summaries here and here of which particular projects and parcels qualify for SEQRA exemptions.

The reforms also impose new deadlines for projects that still need to undergo SEQRA review. Environmental Impact Statements, the most demanding level of SEQRA review, must generally be completed within two years.

Increasingly, the view among wonks and policymakers is that open-ended environmental review laws have been a mistake. They can add years to the delivery of housing and infrastructure while providing few substantive environmental protections.

All but seven states and the federal government manage to get by without these laws. Where these laws do exist, the trend has been to exclude more and more projects from their purview.

New York now joins the ranks of the reformers by exempting some types of discretionary land use actions from its environmental review law when they result in more housing. A deeper reform would be to allow more housing to be built without needing a discretionary process in the first place.

…And Some Taxes

New York's budget also includes the so-called pied-à-terre tax on second homes worth more than $1 million in New York City that Democratic Mayor Zohran Mamdani had been agitating for as part of his "tax the rich" agenda.

The tax, which will be implemented in stages, is anticipated to bring in $500 million, although revenue estimates are complicated by New York's arcane property tax system that, per The New York Times, undervalues high-end real estate.

The politics of taxing rich nonresidents' second homes is pretty straightforward for the city's socialist mayor and the state's liberal governor.

As a revenue raiser, the policy has some problems, argued tax experts Ken Girardin and Jared Walczak in an April City Journal article.

While property tax revenues are usually quite stable, New York's second-home tax "over-indexes on a small number of high-value properties, making it more susceptible to valuation fluctuations," they write, adding that "higher taxes on select high-end properties will make investment in the construction of new high-value housing less attractive."

If you take the logic of filtering seriously, a fall in the number of new high-end homes being built will raise housing costs for everyone. Fewer luxury units means more money chasing fewer homes, putting upward pressure on prices.

Given the narrow base of the tax, the effect on housing prices generally will likely be marginal. Still, any cost increases in the already expensive city are hardly ideal.

Beyond any practical arguments about policy, narrow taxes designed to bilk unpopular people with too much money are unseemly.

If one believes, as Mamdani does, that there's no problem too large or concern too small for city hall to fix, it seems only fair that everyone pay for this great socialist experiment.

A targeted tax on out-of-town millionaires' property reveals the mean, grasping hand behind the mayor's "warmth of collectivism."

The Bills Not Considered

All things considered, both the SEQRA exemptions and the pied-à-terre tax are relatively small potatoes when compared to previous housing policy fights at the state level in New York.

The high-water mark was 2023, when the Legislature considered both a major expansion of rent control (deceptively pitched as a "good cause" eviction law) and one of the more far-reaching state zoning reform plans ever considered anywhere in the country. Neither ended up passing.

(In 2024, a more limited good cause eviction law did pass.)

Since then, the major housing policy action in New York has been at the city level. In 2024, local leaders approved the "City of Yes" plan, which upzoned large swaths of the city. This year, the city's Rent Guidelines Board is expected to impose Mamdani's sought-after rent freeze.

This makes New York distinct from states in the West and South, both red and blue, where legislatures are consistently considering and even passing significant state-level zoning reforms.

The rent stabilization law bankrupting housing in New York City is also a state law that will require state action to fix.

In the past few years, at least, it appears Empire State lawmakers don't have the appetite for taking on major reform proposals.

Quick Links

John Ketcham has a great piece in Pirate Wires about Mamdani's plan to have the city take over apartment buildings in need of serious repairs. In short, the city's already tried this in recent memory, and it was an expensive failure.
The Institute for Justice has a new lawsuit that challenges North Port, Florida's selective rezoning of retiree Art Yatsko's property that prevents him from building a single-family home on the lot.
Over at Market Urbanism, Michael Lewyn reviews Patrick Condon's book Broken City. Condon argues that upzoning will never make cities affordable because increased density merely spikes land prices. Lewyn isn't convinced.
Portland, Oregon, Mayor Keith Wilson warns that the city's affordable housing portfolio is approaching financial collapse. Per KOIN's summary of the memo, the city's affordable housing stock has all the problems, including "unpredictable and unsustainable material and personnel costs, unprecedented behavioral health and substance use disorder rates, faltering resident security, unit vacancies and chronic tenant nonpayment."
Rents are once again spiking in San Francisco.

The data for rent appreciation in San Francisco is just nuts. pic.twitter.com/SWvdOR0OLM

— Mike Simonsen (@mikesimonsen) June 7, 2026

Researchers at the Federal Reserve Bank of Minneapolis have an interesting new brief on housing in Saint Paul, Minnesota. "Missing middle" zoning reforms have enabled the construction of a few dozen duplexes and triplexes each year. Meanwhile, the city's rent control experiment continues to chill investment in larger multifamily developments.

The post Streamlining and Taxes appeared first on Reason.com.

"Al Ghashiyah Testified That … as Head of the Family, He Has Decided that Islamic Law Is the Law that Applies to the Family"

2026-06-09T16:28:39Z

From al Ghashiyah v. Oster, decided last Thursday by Wisconsin Court of Appeals Judges JoAnne Kloppenburg, Jennifer Nashold, and Chris Taylor:

Al Ghashiyah is the only brother of James C. Charles Casteel. Casteel died in October 2024. Thomas Oster, a longtime friend of Casteel, filed a petition for the formal administration of Casteel's estate and filed Casteel's will with the circuit court.

Casteel's will bequeaths the contents of his estate to certain friends and family members. The will does not bequeath any of Casteel's estate to al Ghashiyah. Al Ghashiyah filed a motion requesting that the court apply Islamic law to the administration of the estate. Al Ghashiyah asserted that, under Islamic law, Casteel's estate must be distributed among Casteel's surviving siblings, with any surviving male siblings receiving twice the share of any surviving female siblings.

At an evidentiary hearing on Oster's petition and al Ghashiyah's motion, al Ghashiyah confirmed that his motion was a request that the circuit court apply Islamic law instead of the laws of the State of Wisconsin, and instead of following Casteel's will. Al Ghashiyah testified that, with his brother's death, al Ghashiyah became the head of the Casteel family, and as head of the family, he has decided that Islamic law is the law that applies to the family.

Al Ghashiyah also testified that he and Casteel did not discuss whether or not Casteel's property should be distributed according to Islamic law, and that, to al Ghashiyah's knowledge, Casteel did not practice the Islamic faith. The court denied al Ghashiyah's motion requesting that the court apply Islamic law….

Al Ghashiyah … argues that the circuit court's denial of his motion to apply Islamic law is discriminatory and violates fundamental rights protected under the "Universal Declaration of Human Rights." … [A]l Ghashiyah does not develop this argument with citation to relevant legal authority that illustrates court error. Rather, al Ghashiyah asserts that "human rights principles are universally applicable" and cites to Presbyterian Church of Sudan v. Talisman Energy, Inc. (S.D.N.Y. 2003) in support of that assertion.

However, in that case, current and former residents of the Republic of Sudan brought suit alleging that an oil company in that country committed "gross human rights violations, including extrajudicial killing, forcible displacement, war crimes, confiscation and destruction of property, kidnapping, rape, and enslavement." Al Ghashiyah does not explain how the Presbyterian Church of Sudan case supports his argument that the court here violated al Ghashiyah's rights when it declined to apply Islamic law to the administration of the estate of Casteel, who the court found expressed no desire that Islamic law should apply.

In his reply brief, al Ghashiyah asserts that courts "routinely consider religious doctrine in … cases where relevant and voluntarily invoked by the parties." He also states that the U.S. Supreme Court has recognized the right of religious communities to arrange their affairs in accordance with their beliefs.

It may be true that in certain circumstances courts may apply and consider international or human rights law, and the rights of religious communities. However, al Ghashiyah does not develop an argument as to how his right to practice Islamic law is relevant to the administration of Casteel's estate, he does not assert any evidence that Casteel invoked Islamic law, and he does not explain his conclusion that the court should recognize the religious beliefs of al Ghashiyah in deciding Casteel's will.

Rather, al Ghashiyah's argument amounts to the conclusory assertion that, because he asked the court to follow Islamic law, it was discrimination and a human rights violation for the court to decline the request. We do not further address this argument as it is undeveloped….

The post "Al Ghashiyah Testified That … as Head of the Family, He Has Decided that Islamic Law Is the Law that Applies to the Family" appeared first on Reason.com.

Nonexistent Case Citations on Both Sides + "Rubberstamp[ing]" by "Local Counsel"

2026-06-09T15:56:23Z

In Withers v. City of Aberdeen, decided yesterday by Judge Sharion Aycock (N.D. Miss.), both sides had filed briefs containing citations to nonexistent cases; the briefs were drafted by out-of-state counsel, each of whom had local counsel (as the rules generally require). Withers was represented by Wilson with Ridgeway as local counsel; the City was represented by Williams with McClinton as local counsel. I focus here just on the sanctions imposed on local counsel:

Ridgeway is a Mississippi licensed attorney who works for Christian & Small, LLP. She sponsored Wilson's pro hac vice admission in this case and serves as local counsel for Withers. As noted, Ridgeway appears as a signatory to Withers' Opposition to Defendant City of Aberdeen's Motion for Summary Judgment [105], which contained two citations to nonexistent cases. Though she was not the drafter of that document, she admitted to failing to review and verify the accuracy of the legal authority cited therein. In other words, she did not check the cases after authorizing her signature on the filing.

At the hearing, Ridgeway explained that she was unaware of Wilson's AI use but did not attempt to excuse herself on that basis. She explained that she does not personally use AI and that her firm has a policy in place pertaining to AI use. In essence, Wilson would present Ridgeway with a copy of proposed filings drafted by Wilson, and the two would discuss the substance of the same. Despite this communication between the two, Ridgeway admitted to not reviewing the legal citations in those drafts before they were filed, including Withers' Response [105]. Ridgeway accepted responsibility for her role in the violation stemming from the fake cases cited in that filing as well as in others. {Following the show cause hearing, Ridgeway informed the Court that she had self-reported to the Mississippi Bar. The Court finds that this act demonstrates her acceptance of accountability.}

As briefly discussed above, Ridgeway conducted a thorough analysis of all filings submitted on behalf of Withers in this case after entry of the Court's show cause order. The Court appreciates her efforts in attempting to remediate the issue and her acceptance of responsibility but finds that those factors do not shield her from being sanctioned. In addition to admitting her violation of Rule 11, Ridgeway also conceded that her omissions violated this Court's Local Rules. Local Rule 83.1 provides in pertinent part:

Association and Duties of a Resident Attorney. No eligible non-resident attorney may appear pro hac vice unless and until a resident attorney has been associated. The resident attorney remains responsible to the client and responsible for the conduct of the proceeding before the court.

Certainly, resident attorneys are responsible for providing guidance and oversight of non-resident attorneys to ensure that they are complying with procedural and ethical rules. After all, resident attorneys are basically the gateway for out-of-state attorneys to have access to Mississippi's court system. The Court does not take a violation of that core duty lightly. At the same time, taking into account the specific circumstances of this case, it does not find that Ridgeway acted in bad faith. Her omissions were negligent and careless but not purposeful….

McClinton … was a signatory to the two filings submitted on behalf of the City, which contained hallucinatory citations. At the hearing, McClinton explained that he was not aware that the motions at issue were being filed but acknowledged that he had previously given Williams permission to affix his signature on prior filings without reading the documents. Though he was not provided the filings for his review prior to their filing, McClinton did not attempt to use that as an excuse and explained that it was not unreasonable for Williams to have done so based on their course of practice. In other words, he had impliedly given permission for her to do so.

McClinton also explained that only two attorneys practice at his law firm, that he does not use AI in his practice, and therefore does not have an AI policy in place. Much like Ridgeway, McClinton was unaware that his co-counsel, Williams, had used an AI research tool to conduct legal research in the case. McClinton also acknowledged that he should have reviewed the filings when he received the automatic notification of electronic filing and expressed his remorse for having failed to do so. Again, he does not contest his Rule 11 violation.

For the same reasons provided above concerning Ridgeway, the Court finds that he too violated his duties as a sponsoring resident attorney pursuant to this Court's Local Rules. Because he was not the drafter of the filings at issue and did not use AI in this case, the Court has no reason to believe that he acted in bad faith. Like Ridgeway, the Court finds that McClinton acted negligently and carelessly. However, he accepted responsibility for his role in the violation and, like Ridgeway, informed the Court that he had self-reported to the Mississippi Bar following the show cause hearing. The Court credits his candor and steps taken towards holding himself accountable.

In an era of rampant unverified AI usage within the legal field, this case presents a prime example of the risk associated with serving as a rubberstamp when acting as local counsel.

Local counsel were therefore disqualified from the case, ordered to pay $1000 each in fines, and referred to bar authorities. Wilson and Williams, the lawyers who drafted the filings, were fined $2500 and $3500 and otherwise disciplined as well.

The post Nonexistent Case Citations on Both Sides + "Rubberstamp[ing]" by "Local Counsel" appeared first on Reason.com.

DHS Says It Has 'Zero Tolerance' for Protesters' 'Verbal Assaults.' Here's What the Law Says.

2026-06-09T17:35:09Z

Protests over poor living conditions for detainees at Delaney Hall immigration detention center erupted over the weekend, leading to the arrest of over 80 people, the Associated Press reported on Saturday. Some of the protesters arrested by Immigration and Customs Enforcement (ICE) agents are accused of assaulting law enforcement officers, obstruction, and threats. But questions remain about whether the Department of Homeland Security's (DHS) enforcement policies violate the First Amendment and chill speech on the ongoing public debate over immigration policies.

The crackdown on protesters is not surprising given Homeland Security Secretary Markwayne Mullin's statements during congressional hearings last week, in which he took a hard line against violent protesters. During a House Committee on Homeland Security hearing on June 3, Mullin testified that he is "OK with protest," so long as it is done "in a peaceful way, in a legal area." However, Mullin asserted, he has "zero tolerance" for individuals who "verbally assault our officers," "go after our vehicles," or "assault our property." "You assault one of our officers, we will find you. We will arrest you," he continued.

While Mullin is right that the destruction of government property and assaulting, resisting, or impeding law enforcement officers are both federal crimes, there is no such thing as "verbally assaulting" an officer under the law, Aaron Terr, the director of public advocacy at the Foundation for Individual Rights and Expression (FIRE), tells Reason.

Under the First Amendment, individuals are free "to criticize, mock, or disparage law enforcement officers" who "have no greater right than anyone else to be shielded from offense or criticism," Terr explains. "In fact, the Supreme Court has recognized that properly trained officers are expected to show even more restraint than the average citizen when confronted with provocative or challenging speech."

"The First Amendment's broad protections are essential to preserving the public's ability to criticize and hold accountable those entrusted with enforcing the law," Terr says, which is why speech is generally protected "unless the speech falls into one of the narrow categories of unprotected expression."

One such category includes true threats, defined by the Supreme Court in Virginia v. Black (2003) as "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals."

When assessing whether speech constitutes a true threat, "context always matters," says Terr. "Courts look at the surrounding circumstances to determine whether a reasonable person would understand the statement as a serious expression of intent to commit unlawful violence, as opposed to a joke, hyperbole, or venting," all of which fall under protected speech.

The distinctions between true threats and other forms of protected speech can be rather nuanced. For example, in 1969 the Supreme Court in Watts v. United States reversed a jury's decision to convict a young man, recently drafted into the Vietnam War, for saying at a public rally, "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." The Court held that the statements were protected speech and amounted to crude political hyperbole rather than a true threat. "The language of the political arena," the Court wrote, "is often vituperative, abusive, and inexact" but must be interpreted "against the background of a profound national commitment" to "uninhibited, robust, and wide-open" debate on public issues.

When asked by Reason how the DHS defined verbal assault and whether it aligned with First Amendment law, a spokesperson responded via email with the Justice Department's statement regarding the arrest of a Delaney Hall protester, Nicholas Matthew Scelfo, who allegedly threatened to assault and murder an ICE officer and his family. Video posted by ICE on social media shows Scelfo pointing at agents during a May 27 protest, shouting, "I'll kill your whole fucking family. Your whole fucking family is dead." If convicted on the threat charge, he faces up to 10 years in prison and a maximum fine of $250,000, according to the Justice Department.

Another Delaney Hall protester was detained and dragged away by ICE agents on June 5 for allegedly threatening an officer. Video of the incident shows an ICE agent yelling at a group of protesters to back up before singling out a protester off-camera, shouting, "What did you just say? You're going to kill me? You're going to kill me?" Agents surround the suspect and drag him away as he exclaims, "I ain't say nothing! I ain't say nothing!"

As shocking as these statements may seem, "a statement like 'I'll kill you' is not automatically a true threat simply because those words are used," said Terr. Things like "the nature of the protest, the level of antagonism between the protester and the officer, the protester's tone, and any accompanying conduct" are all relevant to a court's analysis on whether statements rise to the level of a true threat, Terr says.

But whether law enforcement officers with the power to make arrests abide by the courts' distinctions between true threats and otherwise protected speech is another question entirely. "Unfortunately, administration officials and federal agents have repeatedly demonstrated either a misunderstanding of, or disregard for, the distinction between protected speech and illegal conduct," says Terr. The DHS under President Donald Trump has put forth policies inconsistent with the First Amendment, Terr continued, from saying recording on-duty officers constitutes unlawful doxxing or obstruction, to attempting to unmask online anonymous critics. "These actions all seem designed to chill protected speech rather than enforce the law," says Terr.

The post DHS Says It Has 'Zero Tolerance' for Protesters' 'Verbal Assaults.' Here's What the Law Says. appeared first on Reason.com.

The World Cup Isn't the Best Soccer Has To Offer, but the World Loves It Anyway

2026-06-09T17:08:47Z

Hello and welcome to another edition of Free Agent! There's no need to leave early and beat the traffic this week, so take your time reading today's newsletter.

We've got four quick hits on four very different topics this week, covering everything from the World Cup, to campaigning on sports, to Formula 1, to the NBA and NHL finals. Get ready!

Locker Room Links

President Donald Trump's attendance at Game 3 of the NBA Finals appeared to be relatively drama-free, other than some booing and some security chaos. (Trump thought it was amazing.)
A last-minute lawsuit is trying to halt the UFC fight on White House grounds on Sunday.
World Cup immigration is a mess: A referee from Somalia was not allowed into the country. A Swiss player was held up because of an incident that happened eight years ago. An Iraqi player was detained and a team photographer was sent back to Iraq.
Texas Tech quarterback Brendan Sorsby has somehow created even more chaos for college sports: Initially suspended by the NCAA for betting on his own team while at Indiana (which he admits to, in violation of NCAA policies and state laws), a judge granted Sorsby an injunction that will allow him to play all but two games this season (against Texas Abilene and Oregon State). Now schools are refusing to schedule games against Texas Tech in any sport.
I am increasingly convinced the Protect College Sports Act is going nowhere because various factions are going to get bogged down in the details (Democrats on collective bargaining, Republicans on immigration and transgender athletes). It is not promising that a markup hearing was supposed to happen on Wednesday, but was pushed back and still hasn't been formally announced.
The Bears took another step closer to moving to Indiana, but it's not a done deal yet. The latest step happened because the Illinois legislature adjourned without passing any kind of bill to give the Bears a special deal.
The Toronto government bought 3,500 World Cup tickets with plans to sell them for a profit—even though last month, the Ontario government started enforcing its new scalping ban.
Elsewhere in Reason, by Science Correspondent Ronald Bailey: "The Enhanced Games Proved Enhancement Works But Youth Works Better."
Ohio is a state full of bad decisions.

Ohio gave these people $600 million public actual dollars. https://t.co/4q02KBNoXx

— Jonathan Smith (@DegenerateTBone) June 4, 2026

Why We Love the World Cup

There's a dirty little secret among die-hard soccer fans, kept from the casual viewers who just pop in every four years to watch the World Cup: This isn't the best stuff soccer has to offer. The best storylines, traditions, and atmospheres in soccer aren't at the international level; they're at the club level, where players spend 90 percent of their time.

The World Cup isn't even the highest quality of gameplay. International teams only get together several times a year for two weeks at a time. Meanwhile, players with clubs like Arsenal, Barcelona, Manchester United, etc., train together almost every day for the vast majority of the year. At the club level, teammates gel so well that players can pass the ball without looking because they know exactly where their teammates are headed. The best teams in Europe are like superteams, pulling the best players from every nation in the world. Arsenal would probably beat the Brazilian national team because Arsenal has better players and more training time. The international game is stilted, less fluid. The tactics are usually more formulaic because that's how you can get every player on the same page with limited time in training.

As Simon Kuper says in his great book World Cup Fever (half memoir, half history of the World Cup), sometime around the 2006 World Cup hosted by Germany, the best soccer leagues caught up to the World Cup in terms of quality. He writes: "I sat in the Cologne stadium thinking what I often thought at World Cups: why are so many people watching this?"

The answer, of course, is that it's not about watching good soccer. People watch the World Cup to feel a sense of pride and belonging in where we're from. As I wrote in March during the World Baseball Classic: "If there's one thing most people seem to feel strongly about, it's geography. The place they're from? It's better than the place you're from." International sports, much more than pro team competitions, give an entire country the chance to come together and support the team. It's not just on a national level, though—it's about texting your soccer friends, or your sports group chat, or your family about the amazing moments that make you go crazy. The stadium atmosphere is amazing, but there's also nothing like watching a big soccer game in a crowded bar with like-minded fans—and then feeling like the roof is going to blow off the place after a huge goal.

The more people that watch a sporting event, the more other people want to watch—to see what all the fuss is about, or to feel part of the gang. Being together is what it's all about. While pro and college sports divide us up by city and state, giving the whole country something to watch and talk about together gets people even more excited.

This is beyond politics. Pride in where we're from, and sharing in that feeling with others, isn't something created by politicians or the government. Even if your country almost certainly isn't going to win, the World Cup is still a great way to express that pride.

Can Politicians Just Be Normal?

At The Atlantic, Nathaniel Frum writes that "Democrats Must Learn to Talk Sports." That take earned plenty of mockery:

I've covered the intersection of sports and society (politics, religion, economy and race) for almost 20 years, almost all of it in hard-red states.

This is the dumbest goddamn thing I've read in a long time. https://t.co/lyvGIC8U7I

— Steven Godfrey (@38Godfrey) June 2, 2026

I certainly don't want politicians to talk more about sports (or at all, really), but that's separate from whether this can help politicians, on either side of the aisle, get elected.

Frum makes an important distinction in the piece. He is not saying politicians should make clumsy sports pronouncements, like when Minnesota Gov. Tim Walz went out of his way to say nice things about the Lions and Packers, or when his campaign posted that "@AOC can run a mean pick 6." (Another terrible example of this comes to mind: When 2016 Republican candidate Carly Fiorina tweeted, a month before the Iowa Caucuses, that she was supporting Iowa in the Rose Bowl instead of her own alma mater, Stanford.) Frum is asking for politicians to combine sports and populism—and to not be afraid to trash talk.

Basically, he's saying Democrats should sound more like Trump when they talk about sports, and not be afraid to say negative things just because sports aren't as important as healthcare or economics. "What's relatable is irrationally caring for your team and irrationally hating its rivals—not pandering by saying that you happen to like all of the teams in key Rust Belt swing states," Frum writes. For it to work, the politician has to be a genuine sports fan. If they're not, Frum says, maybe they shouldn't be a politician at all: "If you can't relate to something that resonates so strongly with American people, then you need to reevaluate your role as a politician in an electoral democracy."

It's not a perfect solution. A lifelong Republican isn't going to vote for a Democrat just because the Democrat said something human and normal about sports. A Nazi tattoo isn't excusable as long as you say something hateful about the Yankees. Kitchen table issues will always rule the day in politics. But people also like to vote for politicians who seem normal, or at least like human beings they'd want to spend time with. Sports are the biggest thing in culture these days, after all. I'd rather politicians left sports alone, but if they can talk about sports like a normal sports fan, it might help them.

Just don't do this:

Jeffries: It's not clear to me that Donald Trump is a big Knicks fan. Does this guy even know the difference between Karl Rove and Karl-Anthony Towns? I don't think so. pic.twitter.com/Bvky3vfG0H

— Acyn (@Acyn) June 8, 2026

Formula 1's Monaco Mess

Hoo boy—I try not to whine too much, especially when a lot of Formula 1 fans are jumping to conclusions, but the Monaco Grand Prix was a farce. It was possibly the worst race (albeit not the most boring one) I've seen in my five seasons watching every grand prix. Ideally, races should never be about decisions made by off-track officials, but that came up all too often on Sunday.

Everyone complains about how the Monaco race is always Formula 1's most glamorous affair but also its least exciting race. The walls are too tight for on-track passing, so drama is usually dependent on crashes or weather. The newest Formula 1 cars (smaller than their predecessors) were supposed to help with that, but we still got only a handful of passes. One could also easily blame the new cars for the engine troubles that took Max Verstappen out at the start. Throughout the race, there were numerous penalties for speeding in the pit lane, causing lots of confusion about whether a sensor or measurement was broken and whether the penalties would be upheld. Then, after two crashes in the same turn, officials threw a red flag to fix some pavement that was breaking up—as if this were NASCAR at Martinsville in 2004, and not one of the richest principalities in the world (though the crashed drivers blamed mechanical issues with their cars rather than the track surface).

The state of the asphalt in Monaco after this weekends action
(@FulvioVigilante) pic.twitter.com/fNHv21ce7N

— Cadillac F1 News (@CadillacF1News_) June 8, 2026

Other than the top handful of drivers, the finishing order seemed largely random. I'm not saying Formula 1 should leave the historic circuit like my fellow Arsenal fan Joel Embiid is saying, but Formula 1 and its sanctioning body, the Fédération Internationale de l'Automobile (FIA) need to make sure their biggest event looks better than this.

I'd love to hear from my fellow Formula 1 fans if they have any ideas here: Email me at freeagent@reason.com

Knicks Haters and Cup Contenders

Thanks to those of you who responded to our survey on the NBA and NHL finals.

Turns out 80 percent of you are pretty upset with how the NBA Finals are going (slightly less so after Game 3)—only 20 percent of you said you're rooting for the New York Knicks over the San Antonio Spurs. I'll allow it from the people who said "Have been Knicks fan since 1960" and "Team of my youth (I grew up in NYC) even if I despise Dolan. Pop always wore on my nerves." Unfortunately for you two, everyone else wants you to be sad. We got responses that said: "Sad NY fans make me happy," "bc Mamdani would be sad," and "I can't stand the Knicks or their fans." The survey's written responses aren't connected to the Knick vs. Spurs responses, so I have no idea if the people who responded with "Wemby" and "Wemby, Wemby, Wemby" are lovers or haters.

On the ice, we've got a much more divided fanbase, with the Vegas Golden Knights edging out the Carolina Hurricanes and getting 52 percent of your support. Many of you have strong geographic feelings here. One Canes supporter wrote, "A desert city shouldn't win the Stanley Cup, I object on moral grounds," while a Knights fan wrote, "Carolina should not have hockey." I do not find this one to be a plausible excuse: "It gets cold in Nevada sometimes, and hockey is a northern sport." And while I miss the Whalers just as much as whoever wrote this (possibly my brother), the move from Connecticut long predates the current ownership: "Moved the whalers, and no sparty." Given the negative press Canes owner Tom Dundon has been getting for looking like a cheapskate as Portland Trail Blazers owner, this was an interesting response: "I'm a Trail Blazers fan….if the Canes win, it shows that Dundon may be able to share his successes running the canes with the Blazers."

Replay of the Week

We lost the game but won the hype war in this friendly against Germany. If this had taken the lead in a World Cup knockout match, I'm not sure my heart would survive. (Here it is in Spanish.)

Antonee Robinson UNLEASHES pic.twitter.com/nGjr1voa0q

— B/R Football (@brfootball) June 6, 2026

That's all for this week. Enjoy watching the real game of the weekend, the UFL's championship United Bowl on Sunday at 3 p.m. Eastern, featuring the Louisville Kings against the D.C. Defenders and the Audi Field beer snake.

The post The World Cup Isn't the Best Soccer Has To Offer, but the World Loves It Anyway appeared first on Reason.com.

DOJ Claim That Trump Could 'Bulldoze' Statue of Liberty Fits a Pattern

2026-06-09T15:58:07Z

One shouldn't get into the habit of feeling sorry for high-ranking federal employees, who wield power over our lives and get a salary of our tax money for their trouble. Still, serving as a U.S. Department of Justice (DOJ) lawyer arguing on behalf of the government seems like an unenviable gig, as accomplished attorneys are reduced to backfilling legal defenses of their bosses' harebrained schemes.

When President Joe Biden decided to wipe out broad swathes of student loan debt, the DOJ argued that he could do so without Congress' approval using a law explicitly tailored to soldiers in active duty. The HEROES Act allowed the government to waive student loan repayment during "a war or other military operation or national emergency"; Biden's DOJ argued that the then-ongoing COVID-19 national emergency qualified to forgive billions of dollars in student loans for millions of borrowers. (By a 6–3 margin, the U.S. Supreme Court was unconvinced.)

But nowadays that example seems almost quaint. President Donald Trump's administration now rather routinely subjects its DOJ attorneys to the indignity of making facially indefensible claims about the president's power, simply because the executive demands it.

Last year, Trump demolished the East Wing of the White House with plans to build a gigantic ballroom in its place. His cited legal authority was a decades-old statute pertaining to general facility upkeep and maintenance.

In March, U.S. District Judge Richard J. Leon granted a motion enjoining construction on the ballroom. Congress did not authorize the project, Leon wrote, and "no statute comes close to giving the President the authority he claims to have."

Last week, DOJ attorney Yaakov Roth asked the U.S. Court of Appeals for the D.C. Circuit to overturn Leon's order and allow construction to continue.

Not only did Leon err in his decision, Roth argued, but courts have no authority to stop the project once it's begun—after all, the East Wing is already demolished, and construction on the ballroom is "well on its way." (On the other hand, when asked at what point the courts lost the ability to intervene, Roth said it would have been improper "even on day one.")

But when questioned, Roth went even further. "If the government decides, very quickly, to bulldoze the Statue of Liberty," asked Judge Patricia Millett, "[if] the government moved too fast…nothing can be done?"

"I think that's right, yes," Roth replied, which, according to ABC News, "sparked audible gasps in the courtroom."

Roth's position is not just laughable; it's offensive to the constitutional vestment of powers within three coequal branches of government.

But then again, what choice does he have? Trump claims he can demolish federal property and rebuild new ones in their place to his specifications, with no oversight or authorization. At that point, why would any federal structure be off-limits?

In fact, Roth's admission fits a pattern in which Trump's DOJ attorneys make increasingly maximalist arguments about presidential power in order to match their boss's policy goals.

Early in his second term, Trump imposed double-digit tariffs on nearly every nation on the planet. Like all taxes, the power to enact tariffs lies with Congress, not the president, but Trump argued that persistent trade deficits constituted an "emergency" that allowed him to act unilaterally.

As with Biden's student loan gambit, the Supreme Court was unimpressed with this line of logic. But during oral arguments, Justice Neil Gorsuch posed a hypothetical to Solicitor General D. John Sauer: If the president can impose any tariffs he deems fit to address an emergency of his own designation, could a future president then impose tariffs on gasoline-powered cars "to deal with the 'unusual and extraordinary' threat…of climate change?"

"It's very likely that could be done," Sauer replied.

Sauer was also on hand when Trump deployed National Guard troops to Chicago. A federal judge enjoined Trump's order, and the administration appealed.

"The President's determination to call up the National Guard," Sauer wrote in a brief to the Supreme Court, "is not judicially reviewable at all; at minimum, it is entitled to extremely deferential review, under which it should be upheld."

The government made a similar argument after Trump invoked the Alien Enemies Act of 1798 to bypass immigration procedures and deport hundreds of Venezuelan nationals to a prison in El Salvador. The U.S. Court of Appeals for the 5th Circuit pressed the administration to explain how the deportees met the statutory definition of alien enemies.

"The president's determination that the factual prerequisites of the [Alien Enemies Act] have been met is not subject to judicial review," Deputy Assistant Attorney General Drew Ensign replied. Instead, "it's subject to extremely deferential review."

Just last month, DOJ attorney Abhishek Kambli appeared before the D.C. Circuit Court of Appeals. At issue was Trump's executive orders targeting law firms that represented or employed Democrats, which included revoking their attorneys' security clearances. In response to the judges' questions, Kambli argued that a future Democratic president could punish Republican firms in exactly the same way.

Would it be legal, asked Judge Cornelia Pillard, "if an incoming president—let's say, a Democrat—says, 'I think that any lawyer who represents a Republican, by virtue of that representation…is a threat to national security?'"

Yes, Kambli responded, that would be allowed, and the courts would have no recourse. Kambli even concurred with Pillard's hypothetical that the president could deny security clearances to "law firms that represent Catholics," "African-Americans," or "Asian-Americans."

It's no surprise Trump believes his authority is unchecked—"I have absolute right to do what I want to do with the Justice Department," he told The New York Times in 2017. But in court, DOJ attorneys are echoing his position, arguing that presidents enjoy unlimited, unreviewable power.

We should all hope that argument never wins out—no matter what president is in office at the time.

The post DOJ Claim That Trump Could 'Bulldoze' Statue of Liberty Fits a Pattern appeared first on Reason.com.

Israel Tests Iran

2026-06-09T13:28:09Z

Yesterday's promises: Just a day ago, the Iranian military warned that if Israel strikes southern Lebanon again, "much harsher and more crushing actions than before will be on the way" to its adversary.

So Israel struck southern Lebanon again, directly testing Iran. Yesterday, at least nine people were killed in a strike near Tyre, in the south. The Israeli army has ordered people to evacuate Tyre, including those who live in the Christian quarter, which had formerly been somewhat more insulated from the bombings.

Hezbollah, which operates out of Lebanon but is distinct from the Lebanese government (unlike Hamas in Gaza, which is deeply enmeshed in the government), does not seem to want to be covered by a ceasefire deal.

"Hezbollah, for its part, has rejected any cease-fire with Israel, and has continued firing on Israel from its positions in southern Lebanon," notes The New York Times. Iran, meanwhile, has held Hezbollah up as necessary to cover in any sort of agreement.

Meanwhile, a U.S. helicopter—an Apache gunship—"went down near the coast of Oman while patrolling regional waters," per a report from U.S. Central Command. The two crew members were rescued relatively quickly, and the cause is unknown.

Iran is trying to "impose a new equation"—according to Israeli Prime Minister Benjamin Netanyahu—by firing at Israel in response to that country's attacks on the terrorist group Hezbollah, near Beirut. But, to Netanyahu, this equation is "unbearable and unacceptable." He made that much clear by striking Tyre again after Iran issued its warning.

The relationship between phones and fertility: "Did the introduction of the iPhone causally reduce fertility?" asks Brad Wilcox, researcher with the Institute for Family Studies, discussing a new paper examining "causal evidence from AT&T's 2007–2011 carrier monopoly" by Caitlin K. Myers and Ezekiel Hooper.

Takes abound (though it's hard to know how reliable the paper is, take it with grains of salt).

Maybe it's the dating apps:

A takeaway is phones turn dating into a second price auction but with counterparties that lack creditworthiness or performance requirements. @conorsen @Noahpinion @robinhanson

— Nick Walker (@nw3) June 8, 2026

Or maybe it's that phones are conduits for the porn:

Lots of people posting about this one. I want to draw your attention to one part of the paper: the argument that among other channels, the iPhone reduces fertility by increasing the availability of pornography as a substitute for sex.

"The Google Trends annual index for the… https://t.co/Ux7dxO9BNt pic.twitter.com/45AIYYUeDU

— Charles Fain Lehman (@CharlesFLehman) June 8, 2026

I think it's probably a combination of factors, but I especially like the "false anthropology" point:

It's the phones.
It's the phones for a hundred reasons. Here are a few:
1) Male consumption of porn reduces marriage (for like 10 reasons)
2) Because of time-wasting college kids and 20-somethings just socialize less, reducing marriage.
3) The dating apps ruin dating (for 10… https://t.co/xXWxBv8MpF

— Tim Carney (@TPCarney) June 8, 2026

Scenes from New York: They shut down a ton of Midtown last night to provide a tighter security perimeter so President Donald Trump could attend the Knicks game at Madison Square Garden.

lol imagine being one of the thousand bars inside this zone having your night of the year shut down https://t.co/zAD1AcZvXA

— JokerMakeupJacobite (@ClwnPrncCharlie) June 8, 2026

More on last night, from around the internet:

Hercules and Nessus, by Giambologna, 1599 pic.twitter.com/nsMxu5ST0z

— ArtButMakeItSports (@ArtButSports) June 9, 2026

The star player of the San Antonio Spurs, Victor Wembanyama, has made himself rather at home in New York:

The Spurs might be down 2-0 but that isn't stopping Wemby from getting in some drawing time in Gramercy Park pic.twitter.com/mVcy7kkTVY

— Barstool Sports (@barstoolsports) June 8, 2026

The Spurs ended up beating the Knicks. But at least Larry David didn't end up detained! (I appreciated this person who gamed out a whole Curb scenario.)

QUICK HITS

Yes to everything David Bernstein is saying. I have never once considered the climate question:

It's wild to me that progressive political types like @ezraklein live in a world where questioning whether one should have children because of climate change is a frequent topic of conversation. I've literally never heard anyone i Know say anything remotely like this. But it does… pic.twitter.com/6EgDK5lgwQ

— David Bernstein (@ProfDBernstein) June 9, 2026

Excellent:

JUST IN: A federal judge has ruled Trump's $100,000 H-1B visa fee is an unauthorized tax on businesses and must be vacated. https://t.co/bQXFTaiMmK pic.twitter.com/g5HTy9Cu0X

— Kyle Cheney (@kyledcheney) June 8, 2026

"The Trump administration has drawn up a plan to surge US Immigration and Customs Enforcement personnel to New York City, a move that threatens to escalate tensions with New York Governor Kathy Hochul over the president's migrant crackdown," reports Bloomberg. "President Donald Trump's border czar, Tom Homan, said Monday he'd warned Hochul of the surge before she signed a bill late last month curbing operations and banning masked ICE agents in her state."
Do Mormons count as Christians? The Defense Department seems to think no, Sen. Mike Lee (R–you already know which one) thinks yes (and is himself Mormon). The reason why it's relevant to the government at all? "This decrease in religious affiliation codes is not designed to make any claims on the legitimacy of any faith or religious belief, nor is it intended to provide a list of 'officially approved' religions," said the department. "Rather, it is designed to allow chaplains to quickly look at the religious composition of their units and determine how they structure resources to best provide for warfighters of all faith groups."
The votes are in: Nithya Raman is officially running against Karen Bass in the L.A. mayoral primary; Spencer Pratt is out.
OpenAI is trying to IPO, following in Anthropic's footsteps.

The post Israel Tests Iran appeared first on Reason.com.

Attempt to Seal Court Filing, and to Order Members of the Public to Destroy Their Copies, Withdrawn

2026-06-09T03:51:11Z

A couple of weeks ago, the litigants in the Social Media Adolescent Addiction/Personal Injury Products Liability Litigation multi-district case tried to seal a court filing that had apparently been inadequately redacted when it had been filed. That is sometimes allowed, but what was striking is that they proposed an order (ECF 3048) that would have provided that,

Any party, counsel, or member of the public who may have obtained copies of ECF 3009-1 during the time that it was publicly available, including through ECF Court alerts that automatically generate PDF copies filed in the case, shall immediately delete and destroy them.

That, my friend and longtime Internet lawyer Megan Gray and I thought, was unconstitutional as to "member[s] of the public." So Megan and I asked the court for leave to file an amicus brief, on behalf of the Free Law Project (the CourtListener / RECAP people) and the First Amendment Coalition, urging the court to reject the proposed order. We argued that the proposal violates

Rule 65 of the Federal Rules of Civil Procedure, because "[a]n injunction … binds a non-party only if it … either abets the enjoined party in violating the injunction, or is legally identified with the enjoined party," CFPB v. Howard Law, P.C., 671 F. App'x 954, 955 (9th Cir. 2016) (cleaned up) (emphasis added), and Proposed Amici have no relationship with the original parties;
the Due Process Clause, under which restraints on Proposed Amici could not be imposed without "notice and opportunity for hearing appropriate to the nature of the case." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quotations omitted);
the First Amendment, because "[o]nce true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it," Cox Broad. Corp. v. Cohn, 420 U.S. 469, 496 (1975), and this principle extends to public information sites such as Free Law Project as well as to advocacy groups such as the First Amendment Coalition;
47 U.S.C. § 230, because CourtListener is an "interactive computer service" that cannot be ordered to remove material posted at the direction of a user (which is how court filings are hosted by Free Law Project).

We're glad to report that, shortly after we filed the proposed amicus brief, Meta said it would withdraw the sealing request, and with it the request for the public-must-delete-and-destroy-its-copies order. Here were the details of our argument:

[* * *]

[I.] The ECF 3048 Proposed Order Would Violate Rule 65

"Consistent with historical practice, a federal court exercising its equitable authority may enjoin named defendants from taking specified unlawful actions. But under traditional equitable principles, no court may 'lawfully enjoin the world at large' …." Whole Woman's Health v. Jackson, 595 U.S. 30, 44 (2021) (quoting Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832 (2d Cir. 1930) (L. Hand, J.)). Federal Rule of Civil Procedure Rule 65 applies this principle. Lynch v. Rank, 639 F. Supp. 69, 72 (N.D. Cal. 1985) (citing Rule 65 and Alemite). "The law is clear that a court may not enforce an injunction against a nonparty who acts independently of the enjoined party." Blockowicz v. Williams, 630 F.3d 563, 568 (7th Cir. 2010) (cleaned up). "It is firmly established that 'a court may not enter an injunction against a person who has not been made a party to the case before it.'" LifeScan Scotland, Ltd. v. Shasta Technologies, LLC, No. 11-cv-04494-WHO, 2013 WL 4604746, at (N.D. Cal. Aug. 28, 2013) (citing Additive Controls & Measurement Sys., Inc. v. Flowdata, Inc., 96 F.3d 1390, 1394 (Fed. Cir. 1996)).

Rule 65(d)(2) provides the only exceptions to this rule:

The order binds only the following who receive actual notice of it by personal service or otherwise:

(A) the parties;

(B) the parties' officers, agents, servants, employees, and attorneys; and

(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).

An injunction thus binds a non-party only if it "either 'abets the enjoined party' in violating the injunction, or is 'legally identified' with the enjoined party." CFPB v. Howard Law, P.C., 671 F. App'x 954, 955 (9th Cir. 2016) (cleaned up) (citing NLRB v. Sequoia Dist. Council of Carpenters, AFL-CIO, 568 F.2d 628, 633 (9th Cir. 1997)). And "the fact that [a third party] is technologically capable of removing the postings does not render its failure to do so aiding and abetting." Blockowicz, 630 F.3d at 568.

Proposed amici have no relationship with any of the parties in this case (other than being users of defendants' products and services), nor any connection to the underlying litigation. Thus, under Rule 65, this Court may not order proposed amici as non-parties to delete or destroy any documents in their possession.

[II.] The ECF 3048 Proposed Order Would Violate the Due Process Clause

Nonparties to a lawsuit, who received "neither notice of, nor sufficient representation in" the proceedings, cannot be bound by the court's decision "as a matter of federal due process." Richards v. Jefferson County, Ala., 517 U.S. 793, 805 (1996). "Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 272 (2010) (cleaned up). And the notice must be coupled with service of process: Actual notice "does not alone meet the formal requirements for obtaining personal jurisdiction" over someone whom a party seeks to bind to a court order. R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 958 (4th Cir. 1999).

A federal court may not issue without "personal jurisdiction over the parties"; "it may not attempt to determine the rights of persons not before the court." Zepeda v. U.S. Immigr. & Naturalization Serv., 753 F.2d 719, 727 (9th Cir. 1983).

It is elementary that one is not bound by a judgment in personam resulting from litigation in which he is not designated as a party or to which he has not been made a party by service of process. The consistent constitutional rule has been that a court has no power to adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant.

Zenith Radio Corp. v. Hazeltine Rsch., Inc., 395 U.S. 100, 110 (1969) (citations omitted). "Injunctive relief, by its very nature, can only be granted in an in personam action commenced by one party against another in accordance with established process. Consequently, a party cannot obtain injunctive relief against another without first obtaining in personam jurisdiction over that person or someone in legal privity with that person." R.M.S. Titanic, Inc., 171 F.3d at 957.

Due process principles are especially applicable to restrictions on speech. In Carroll v. President & Comm'rs of Princess Anne, the Supreme Court held that even a "10-day restraining order …, issued ex parte, without formal or informal notice to the petitioners or any effort to advise them of the proceeding, cannot be sustained." 393 U.S. 175, 181 (1968). Here, the ECF 3048 proposed order would require members of the public to permanently delete and destroy their copies of the relevant document, without their having been given notice and the opportunity to be heard, and thus would violate both the Due Process Clause and the First Amendment. And though proposed amici learned of this proposed injunction by happenstance and seek to proactively oppose it, the injunction would nonetheless violate the Due Process Clause as to all other third parties that it might cover.

[III.] The ECF 3048 Proposed Order Would Violate the First Amendment

The proposed order compelling members of the public to delete or destroy information they lawfully obtained from court records would result in an unconstitutional prior restraint on speech. "Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints." Alexander v. United States, 509 U.S. 544, 550 (1993). An order to delete or destroy court records that are lawfully obtained, which is inherently a "takedown order" for material that has been distributed or published, "is a classic prior restraint of speech." Garcia v. Google, Inc., 786 F.3d 733, 747 (9th Cir. 2015). A "prior restraint on publication" is "one of the most extraordinary remedies known to our jurisprudence" and "the most serious and the least tolerable infringement on First Amendment rights." Neb. Press Ass'n v. Stuart, 427 U.S. 539, 559, 562 (1976).

"Once the government has placed … information in the public domain, reliance must rest upon the judgment of those who decide what to publish …." Florida Star v. B.J.F., 491 U.S. 524, 538 (1989) (cleaned up). Where "true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it." Cox Broad. Corp. v. Cohn, 420 U.S. 469, 496-97 (1975).

In Florida Star, a newspaper was sued by a sexual assault victim for publishing her name after lawfully obtaining it from a publicly released police report. 491 U.S. at 526. The police improperly released the report with the victim's name. Id. at 526-27. Yet the Supreme Court held that the newspaper still had a right to publish the released information, despite this error on the part of the police. Id. at 538. Therefore, even if the court record at issue was mistakenly filed on the public docket, the press and public cannot be restrained from retaining or publishing it. See Neb. Press Ass'n, 427 U.S. at 568 (holding that even if a preliminary hearing could have been closed, "once a public hearing had been held, what transpired there could not be subject to prior restraint").

Indeed, as the Supreme Court held in Bartnicki v. Vopper, even if a document on matters of public concern (and public court records would surely qualify) was originally illegally leaked, people who innocently obtained it are free to publish it. 532 U.S. 514, 535 (2001). "The First Amendment privileges the publication of facts contained in lawfully obtained judicial records, even if reasonable people would want them concealed." Nieman v. VersusLaw, Inc., 512 F. App'x 635, 637 (7th Cir. 2013) (holding that a legal research website that published "links to information and documents in the public record" was protected by the First Amendment).

And this extends to all publishers of information, not just traditional mainstream media. "We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers." Citizens United v. FEC, 558 U.S. 310, 352 (2010) (cleaned up). The Supreme Court "has repeatedly refused in non-defamation contexts to accord greater First Amendment protection to the institutional media than to other speakers." Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284, 1290 (9th Cir. 2014) (applying this principle to defamation contexts as well, id. at 1291). And in Bartnicki, the Court expressly made clear that it drew "no distinction between the media respondents" and a nonmedia defendant. 532 U.S. at 525 n.8.

Like the restriction on the newspapers in Florida Star, the Proposed Order would require proposed amici to conceal information that was lawfully accessed from the public record. The First Amendment continues to protect their right to distribute the information they legally obtained directly or indirectly from PACER.

[IV.] The ECF 3048 Proposed Order Would Violate 47 U.S.C. § 230 as to Free Law Project

Documents are made available on the CourtListener website when CourtListener users download the documents from PACER and use the RECAP browser plugin to automatically upload them to CourtListener. (Lissner Decl. ¶ 4.) Some users presumably did that with regard to Doc. 3009-1, which the Proposed Order would require Free Law Project to delete.

CourtListener is therefore an "interactive computer service" under 47 U.S.C. § 230(f)(2), much as Yahoo! or Yelp are interactive computer services. See, e.g., Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th Cir. 2009) (Yahoo!); Hassell v. Bird, 5 Cal. 5th 522, 540 (2018) (plurality opin.) (Yelp). And, just as Yelp could not be ordered to remove material posted at the direction of a user, Hassell, 5 Cal. 5th at 547; id. at 548 (Kruger, J., concurring in the judgment), so Free Law Project cannot be ordered to remove material posted at the direction of a user. See also Weitsman v. Levesque, No. 19-CV-461 JLS (AHG), 2020 WL 6825687, at (S.D. Cal. Nov. 20, 2020) (stating that "the Court has concerns about ordering third parties, including Twitter, Facebook, Instagram, and YouTube, to take action against Defendant should he fail to remove the material in accordance with the injunction" against Defendant, given § 230, and therefore declining to issue such an injunction against the third parties); Noah v. AOL Time Warner Inc., 261 F. Supp. 2d 532 (E.D. Va. 2003) (likewise concluding that § 230 precludes orders requiring a hosting service to remove user-posted material); Smith v. Intercosmos Media Group, Inc., No. 02-1964, 2002 WL 31844907 (E.D. La. Dec. 17, 2002) (same); Medytox Solutions, Inc. v. Investorshub.com, Inc., 152 So.3d 727 (Fla. Ct. App. 2014) (same).

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Obligation to Cite-Check the Cases Cited by the Other Side and Report Errors to Court

2026-06-09T00:30:43Z

It's hardly news that you shouldn't file briefs with AI-hallucinated cases. But should you check all of your opponent's citations to see if they're hallucinated, so that you can alert the court to that?

I at first thought not. Naturally, if a citation is critical to the opponent's argument, you'll want to read the case the opponent is citing, and alert the court if the case doesn't actually exist. But many citations are on tangential points, cited for uncontroversial matters; there isn't much reason to try to track them down.

Indeed, even using a tool such as Westlaw's document analysis tool, which can do a good job checking citations in bulk takes at least some time and therefore client money: One needs to not just run the tool but closely analyze any errors it claims to find. And then one would have to spent time and money confirming that they are genuine errors and not typos, since one doesn't want to seem to be making a mountain out of a molehill, and writing up the analysis.

But it now seems clear that quite a few judges do get annoyed not just at the lawyers whose briefs contain hallucinations, but also at opposing counsel who don't warn the court about those hallucinations. I saw this most recently in Landberg v. City of N.Y., where appellate court judges admonished the opposing counsel (to be sure, much less harshly than they admonished the directly offending lawyer); see this video, starting roughly at the 19-minute mark. Here's an excerpt from an article at 404 Media (Samantha Cole):

[T]he attorney [Friscia] representing the owner of the property that faces the sidewalk, stood up before the judges next. He started to speak, but [Presiding Justice Hector] LaSalle wasn't finished with the dressing-down. "He's raising a court of appeal standard that doesn't exist," LaSalle said, interrupting Friscia. "He was using it as a component of his argument, and you didn't think you should bring it to our attention?"

"I didn't notice in particular that the principle of law that he was citing was incorrect," Friscia said.

"I'm sorry, I'm going to give you every opportunity to make your argument," LaSalle said. "But I'm befuddled. I honestly am. I'm absolutely—and I'm not here to—lawyers make mistakes. It's not an easy profession. I don't want to sit here beating up on lawyers, but we rely on the bar so much in what we do. So the first thing that I did, I don't want to speak for my colleagues, but after seeing what he wrote, when I went to your papers, I expected to see something referencing […] It wasn't one case, counsel, it was several cases, and you didn't see fit to bring it to our attention either. It's just striking to me."

Friscia, now with the fear of the bar in him, apologized profusely. "Your honor, I apologize to the court. I will do further due diligence going forward from this point on."

"I hope so," LaSalle said. "You should apologize to your client, not to me."

"Yes, I apologize for that," Friscia said. "And I will, going forward, check every single case, even if it stands for, you know, general principles of law, like the construed liberally to effectuate remedial purpose, and things like that. I will bring them to the court's attention." …

And the judges then turned to the lawyer (Freedman) representing the City of New York:

She got the same questioning from [Justice] Nelson: "So, how do you explain your failure to bring to the attention of this court that a brief was filed with this court by appellant's counsel with apparent fabrications and misrepresentations?"

Freedman tried to explain. "I certainly read the briefs," she said. "I certainly read all of the briefs here, but I certainly didn't focus on it, because it was not our issue. And I do apologize to the court for not catching that, but I tended to focus more on the issue of prior written notice."

In January, I noted three trial court cases taking the same view:

[1.] From Nuvola, LLC v. Wright, decided Nov. 21 by Hennepin County (Minn.) Judge Laurie Miller:

For the reasons the Court has outlined above, the Court finds Mr. Knaak's failure to check the legal authority cited in his brief and his reliance on non-existent case law in his advocacy before this Court raises a question as to whether he breached his duty of competence to Ms. Wright. The Court will refer Mr. Knaak to the Office of Lawyer's Professional Responsibility (OLPR) for appropriate action. Any mitigating factors proffered by Mr. Knaak, including his compliance with his obligation to educate other lawyers about this issue under this Order, may be relevant to a future ethics investigation and any subsequent recommendations by the OLPR, but the Court will not analyze them here as the Court does not make explicit findings on or enforce ethics rules.

The Court also finds troubling Mr. Braun's [i.e., opposing counsel's] failure to identify or bring the non-existent case citations to the Court's attention before the hearing on the motion to compel arbitration. TheCourt should not be left as the last line of defense against citations to fictional cases in briefs filed with the court.

While Mr. Braun did not create or rely on the fake citations, he also did not detect them. Instead, he admitted he did not review the cases cited by his opponent. If he had checked out the citations in the brief to which he was responding, he no doubt would have brought the issue to the Court's attention by the time of the motion hearing, and that would have allowed the Court to take the non-existence of the cited cases into consideration as it heard the argument on the merits of Defendant's motion to compel arbitration, instead of leaving the Court to discover that issue on its own, after the hearing was concluded.

The Court does not find Mr. Braun's conduct to be sanctionable, as he did not cite any non-existent cases to the Court. [Nonetheless], the Court reminds counsel that it is the obligation of counsel on both sides to respond to each other's arguments, including completing a basic cite-check of the cases cited by the other side.

The Court urges all lawyers to take seriously their obligation to ensure that the legal arguments being made and considered by theCourt rest upon good law, not fictional cases dreamed up by a computer. The development of the common law relies upon the accurate citation of existing caselaw, as lawyers and courts analyze new disputes. Infection of the body of caselaw by fake Al-generated citations threatens the integrity of the common law.

The court earlier in the opinion noted (focusing Mr. Knaak's failure to check his own work) that:

Westlaw now provides a tool called "Quick Check" that allows a user to upload a lawyer's own work or the work of an adverse party and quickly identify a list of authorities cited. The Court did not use this tool to discover the non-existent citations, and does not endorse it as a substitute for traditional citation checks. The Court followed the old-fashioned process of looking up the key cases cited by the lawyers, to read them and decide whether it agreed with the parties' reading of pertinent caselaw. However, to the extent a lawyer may wish to conduct a faster citation-check process, the availability of the "Quick Check" tool demonstrates that the investigation required of a lawyer by Rule 11 can be accomplished efficiently through readily available methods.

[2.] Judge Sharion Aycock (N.D. Miss.) reached a similar conclusion in Billups v. Louisville Municipal School Dist.:

The Court also observes that the Defendant … could have flagged the fictious citation and misrepresentation of case law [by Plaintiff's counsel] in a reply brief or supplemental filing. The Court takes this opportunity to issue a charge. Going forward, the Court expects all parties to assist in maintaining the integrity of the judicial process and to be diligent in flagging AI misuse. "[O]therwise, the risk is too great that such errors will persist undetected, potentially leading to an outcome unsupported by law." Elizondo v. City of Laredo (S.D. Tex. 2025).

[3.] And Judge Marina Garcia Marmolejo's order in Elizondo did indeed take the same view:

The Court also observes that Defendant, the City of Laredo, could have flagged these fictitious citations in a reply brief or supplemental filing. Although this oversight does not rise to the level of sanctionable conduct, the Court expects all parties to assist in maintaining the integrity of the judicial process by alerting the Court to such errors. The Court encourages greater diligence in flagging citation errors in the future—otherwise, the risk is too great that such errors will persist undetected, potentially leading to an outcome unsupported by law.

I doubt you'll get sanctioned for not spotting hallucinations in your opponent's work. But it looks like you might get the judge annoyed at you, which is not what you want. So if you have Westlaw, use its Litigation Document Analyzer tool on opponents' filings and not just on your own.

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Archaeologist's Libel Claim Over Allegations of "Trafficking in Stolen Native American Human Remains" Can Go Forward

2026-06-08T00:07:49Z

From Judge Robert Hinkle (N.D. Fla.) May 27 in Shanks v. Schwadron:

Shanks was an archaeologist employed at the National Park Service. His supervisor {Mr. Russo}, also an archaeologist, … and Mr. Shanks were the subject of an inspector general's investigation …. After an investigation, the inspector general issued a report that included the following facts, which are largely undisputed.

A collector approached Mr. Russo with an offer to sell the Park Service items retrieved from burial mounds on Tyndall Air Force Base. The report refers to these as potsherds, defined as pottery fragments found at archaeological sites. Items placed with human remains as part of a death rite are known as funerary objects.

Mr. Russo concluded the Park Service could not purchase the collector's items because if, as the collector said, they had been obtained at Tyndall, they would be considered funerary objects, whose purchase would be illegal. For convenience, this order sometimes refers to these items as potsherds, not funerary objects, without noting each time any uncertainty about their actual nature.

To avoid the perceived legal obstacle to purchasing these items, Mr. Russo enlisted a straw purchaser, who provided Mr. Russo a $1,000 check payable to the collector. Mr. Russo apparently intended to obtain the items to donate them to the State of Florida for preservation. Mr. Russo, accompanied by his subordinate Mr. Shanks, traveled to the collector's location, delivered the check to the collector, and took possession of the items, together with two Native American skulls. The skulls found their way to the State of Florida, which, at the time of the inspector general's report, was in the process of repatriating them. But the potsherds wound up on a shelf in Mr. Russo's office.

The inspector general concluded Mr. Russo's and Mr. Shanks's actions did not violate the most closely implicated federal criminal statute, 18 U.S.C. § 1170, which is entitled "Illegal trafficking in Native American human remains and cultural items."

Under § 1170(a), it is a crime to sell or purchase Native American human remains or to use or transport them "for sale or profit." Mr. Russo apparently purchased only the potsherds, not the skulls, and the skulls were not used or transported for sale or profit. On those facts, there was no violation of this statute.

Under § 1170(b), it is a crime to sell or purchase Native American cultural objects "obtained in violation of the Native American Grave Protection and Repatriation Act" or to use or transport such objects "for sale or profit." Mr. Russo purchased the potsherds—the straw buyer does not change this—but the inspector general was unable to establish that the collector obtained the potsherds after NAGPRA's 1990 enactment. If the collector obtained them earlier, there was no violation of § 1170(b).

Moreover, the collector purportedly had a permit to excavate at Tyndall, and while the absence of a record at Tyndall verifying this would ordinarily refute the claim, many of Tyndall's records were destroyed in Hurricane Michael. If the collector legally obtained the items, even after NAGPRA's enactment, their purchase by Mr. Russo was not a violation of § 1170(b). And in any event, the inspector general's report directly implicated only Mr. Russo, not Mr. Shanks, in purchasing the items. Neither Mr. Russo nor Mr. Shanks used or transported the objects for sale or profit….

[Defendant] Ms. Schwadron … is an archaeologist who worked for the National Parks Service and may have provided the information that triggered the inspector general's investigation. The second defendant, Public Employees for Environmental Responsibility ("PEER"), is a nonprofit corporation that, according to the complaint, "supports current and former public employees who seek a higher standard of environmental ethics and scientific integrity within their agencies … by defending whistleblowers, shining the light on improper or illegal government actions, working to improve laws and regulations, and supporting the work of other organizations." …

Shanks alleged that defendants stated that he "trafficked stolen Native American human remains" and implied that he "committed criminal acts involving Native American human remains." …

Shanks also claims:

Plaintiff has suffered damages as a result of Defendants' actions including, but not limited to: (a) Loss of a sixteen-year federal career, including pension and benefits, valued at approximately $2 million. (b) Loss of a university press book contract when other contributors pulled out of the project due to defamatory statements from Defendant SCHWADRON. (c) Removal from professional panels and working groups, causing reputational harm and lost opportunities. (d) Severe emotional distress and humiliation.

The court allowed Shanks' claim to go forward:

The critical question … [is] whether the defendants' allegedly false statement that he trafficked stolen Native American human remains, or a collection of statements that in context imply he did so, could be found to be defamatory. "Trafficking" can be defined as "[t]he act of transporting, trading, or dealing, esp. in illegal goods or people." But a law enforcement officer does not traffic in drugs when seizing them for legitimate purposes, and a federal archaeologist does not traffic in human remains when obtaining them by proper means to have them repatriated.

It is not clear the means used here were proper, and the defendants had every right to criticize the process. That does not mean, however, that the defendants were entitled to accuse Mr. Shanks of trafficking in "stolen" human remains. Even if acquiring the remains in connection with a straw purchase of the potsherds could be labeled trafficking, and even if Mr. Shanks could be deemed a participant in that trafficking, the assertion that the remains were "stolen" adds a defamatory element.

Mr. Russo acquired the remains from a collector—PEER called him a "known looter"—and delivered them free of charge to the State of Florida for repatriation. Without more, that falls well short of trafficking in stolen human remains. {[And] Florida's fair-report privilege does not apply if, as the complaint alleges, the defendants' statements were not a fair description of the inspector general's report.} …

The court noted, though, that another of PEER's statements mentioned in the Complaint, "the reference to 'blatant desecrations,'" "was a nonactionable opinion."

Jamie Marie Ito (Ito Law PLLC) represents Shanks.

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Reading: The Quietest Way To Disobey

2026-06-08T21:04:05Z

Reading Matters: A History for the Digital Age, by Joel Halldorf, New York University Press, 312 pages, $35

For those of us who like to think literacy is a form of liberation, there's a troubling counterpoint: Mein Kampf. Adolf Hitler wasn't interested in people thinking for themselves; he insisted they think like him. Propaganda, he recognized, is an assault on reflection: avoid abstraction, parrot slogans, abandon objectivity, and scapegoat your enemies.

In forms like Mein Kampf, books contributed to the poison. But for the German theologian and anti-Nazi conspirator Dietrich Bonhoeffer, they could also serve as an antidote. We need, he said before his execution, "to recover the lost sense of quality and a social order based on quality….It means a return from the newspaper and the radio to the book, from feverish activity to unhurried leisure, from dispersion to concentration, from sensationalism to reflection." Bonhoeffer believed reading could serve as a prophylactic against propaganda, enabling individuals to reclaim possession of their minds and stand apart from the mob.

Why would Bonhoeffer ascribe such power to books? Because, as the historian Joel Halldorf shows in Reading Matters, the history of reading is in many ways the history of the individual, and of the kinds of communities individual reading habits enable.

Oral culture draws people together to hear a common message. Reading—particularly personal, silent reading—separates. The private reader peels off from the crowd and exists in his own world.

NYU Press

Christianity widened the path toward this interiority, first by advocating a form of light individualism in which adherents chose to abandon familial and civic cults and join a new body through a form of inward assent, and second by giving this new inwardness a tool. Uniquely in the ancient world, early Christians adopted the codex—bound pages previously reserved for workaday purposes in trades—as the community's primary book format, instead of the more prestigious literary scroll.

Codices, Halldorf writes, were "cheaper, portable, easier to browse, and more manageable for beginners." Christians cultivated a new, accessible sort of reading. It was a long way off from generating autonomous liberal selves, but some of those beginnings start there.

Gradually, books overtook sacrifice as the primary means of religious engagement. "The inner life began to take center stage," says Halldorf. "In this new kind of spirituality, the human soul took on a sacred character, a space where one could encounter the divine. And books became a key to that inner sanctum….In the long run, this culture of books laid the groundwork for modern individualism."

Steps along the way included medieval monasticism, which institutionalized this interior life. As monasteries mushroomed across Europe, so did monkish reading habits, particularly a meditative form of reading known as lectio divina. "Books," says Halldorf, "were tools for contemplation."

To facilitate this effort, scribes and monks improved the tools they inherited. Not only did they develop textual tools such as punctuation—Greco-Roman books got along without that—but they began inserting space between words. (Greco-Roman books jammed words together in a format called scriptio continua.) These innovations eased the burden of reading and expanded the accessibility of books, ultimately changing what could be done with them.

One simple but profound alteration? Scriptio continua books tended, of necessity, to be read aloud, often communally. Spaces between words enabled silent reading, and that meant private reading.

The early monastic model tended toward the reception of a limited number of works. But as books multiplied, the later scholastics began comparing multiple texts. They asked questions, amplified distinctions, raised objections, and pitted interpretations against each other. Light individualism moved toward heavy individualism.

No longer mere receivers, readers became arbiters, increasingly apt to determine the contours and content of their own understanding. Silent, scholastic reading, argues Halldorf, "enabled a more subversive inner life….Readers could explore ideas outside the mainstream." Private reading created more space for dissent, heresy, eroticism, radicalism, even revolution.

Instead of individuals subjecting themselves to the book, individuals now had command of the library to do with as they chose, a situation furthered by the rise of universities and eventually the humanist movement, printing press, and the Reformation. In a medieval context, the church judged the Bible. In the humanist and Reformation context, the Bible judged the church—which is to say, the individual who interprets the Bible judged the church.

Ancient Alexandrians could have managed all this with scrolls written in scriptio continua. But compared to codices equipped with new textual aids (the table of contents, the index, the concordance), that's like working from floppies instead of navigating the web. Still, Halldorf rejects any sort of linear liberation story. Technological developments expand possibilities; they don't dictate outcomes.

Just as screens can be used for deep reading or doomscrolling, our tools can be put to different ends. Print and private reading allowed people like Martin Luther to break with Catholic authority. But print also allowed the Catholic Church to standardize and enforce doctrine, and Calvin's Geneva demanded people think and do just as John Calvin desired.

Books could free an individual, but print culture also enabled the rise of bureaucracy and the nation-state. "As information technology advances, so, too, does the capacity for control," says Halldorf. "The printing press launched a tug-of-war between freedom and pluralism, on one hand, and control and unity on the other."

Print also ballooned the number of available books, from a few million across all of Europe to hundreds of millions. People could now read a standardized text in Lviv, Lisbon, and London, but what they took from it was entirely up to them and increasingly idiosyncratic.

Cheap paper and notebooks allowed common readers to keep commonplace books—extracts that were peculiar to their particular interests and attractions. And whereas medieval monks and nuns might meditate upon just a few dozen books across their entire life, managing the glut of print in the 17th century required different strategies.

"Some books are to be tasted," advised Francis Bacon, "and some few to be chewed and digested; that is, some books are to be read only in parts; others to be read, but not curiously; and some few to be read wholly, and with diligence and attention." X is filled with threads touting the benefits of deep or close reading over scrolling and skimming. But we've always been reading in all these modes as circumstances require.

The ancient Christians kept testimonia, collections of handy proof texts to wield in arguments; someone using a testimonia may never have even seen the original books from which the excerpts came. The scholastics fingered their way down page after page to compile propositions and counterpropositions. And early moderns like Bacon followed their whims through a sea of print to find what suited their fancies and served their unique purposes and projects.

Both hard and soft forms of control attempted to govern what people read. The Catholic Church's Index of Prohibited Books tried to restrict what the faithful might entertain. Governments issued printing licenses and banned books deemed dangerous for one reason or another. Critics emerged to help sift wheat from chaff—and steer public taste.

As they always do, some skirted the prohibitions, and others told off the critics. "I must desire all those critics to mind their own business," said Tom Jones author Henry Fielding in 1749, "and not to intermeddle with affairs or works which no ways concern them; for till they produce the authority by which they are constituted judges, I shall not plead to their jurisdiction."

A bookish people tend to be an opinionated people, something print culture kept encouraging as newspapers and magazines began to proliferate in the 18th century. Once rotary presses were hooked up to steam engines in the 19th, these dynamics scaled to heights no monk could have imagined in any visionary moment of isolated ecstasy.

A virtue of Halldorf's treatment lies in showing how these crosscurrents interact and over time produce social realities we can recognize in our own day—in fact, how they led to our own day. All the current anxieties about digital culture are prefigured in the book's long and wobbly history, and are in essence the product of it.

"The press enabled the consolidation of cohesive and homogeneous cultures through the nation-states," says Halldorf, the scariest versions being the Nazis and Soviets. At the same time, "it gave minorities the opportunity to construct their own subcultures by distributing, or sometimes smuggling, books that expressed their beliefs and values." The same dynamic persists online.

If all this leaves us feeling uncertain, it probably should. We take books for granted, but they never developed along a predetermined path to now. They evolved as circumstances arose, and culturally we evolved with them. And despite the perennial fear that it will die, the book is still with us, still capable of empowering individuals, engendering communities, and, like Bonhoeffer urged, enabling us to stand apart from the mob if we choose.

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A Death Row Case That Divided Kavanaugh and Gorsuch

2026-06-08T20:17:30Z

On the surface, Justices Neil Gorsuch and Brett Kavanaugh share much in common. They are both judicial conservatives, both self-professed originalists, both former federal appellate court judges with respected records, and both were appointed to the U.S. Supreme Court by the same president.

Yet there are certain legal issues that have brought out notable differences between them. The Supreme Court's recent 5–4 decision in Pitchford v. Cain offers a fascinating case in point.

Pitchford v. Cain centered on the reach of a 1986 SCOTUS precedent called Batson v. Kentucky. In Batson, the Court reaffirmed that it was unconstitutional for a prosecutor to exclude prospective jurors on account of race. In Pitchford, the Supreme Court was tasked with deciding whether Terry Pitchford's rights were violated when a lower court decided that his defense lawyer had waived the right under Batson to challenge the prosecution's supposedly race-neutral rationales for peremptorily excluding four out of five prospective black jurors in the case.

Writing for the majority, Kavanaugh, joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, held that Pitchford's constitutional rights had indeed been violated.

"After a prosecutor asserts race-neutral reasons for a peremptory strike, the defense counsel must at least have an opportunity to argue that the asserted race-neutral reasons were not the actual reasons—that is, the reasons were pretextual," Kavanaugh wrote. "Then, the trial court can determine whether those asserted reasons were the actual reasons or instead were pretextual." But "in this case," Kavanaugh continued, "whether due to confusion, oversight, an overly hurried jury selection process, or some other cause, things broke down, and the ordinary trial-court procedure for resolving Batson claims at step three never occurred—notwithstanding the repeated efforts of Pitchford's counsel to pursue and preserve the Batson objection."

Writing in dissent, Gorsuch, joined by Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett, denied that any such injustice had occurred. "Nothing in the record indicates a trial court seeking to thwart defense counsel's ability to represent their client," Gorsuch argued.

Normally, when it comes to matters of criminal justice, Gorsuch is the one with the reputation for being more sympathetic to criminal defendants. Kavanaugh, meanwhile, generally has a reputation for being the more reliable vote in favor of law enforcement.

But this case flipped the script. Here, thanks to an opinion by Kavanaugh, written over Gorsuch's dissent, a death row inmate's conviction and death sentence were tossed out. This time around, it was Kavanaugh, not Gorsuch, who gave the civil liberties side the win.

Gordon Wood, RIP

I just learned the sad news that Gordon Wood, the towering historian of the American Revolution, was struck and killed by a car on Sunday. He was 92.

I first encountered Wood's work as an undergraduate history major and have been reading or rereading him ever since. Probably my favorite among Wood's acclaimed books is The Radicalism of the American Revolution, which earned him a justly deserved Pulitzer Prize. For those of us who write regularly about early American intellectual, political, and legal history, Wood is one of those scholars whose influence is ever present. RIP.

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Today in Supreme Court History: June 9, 1970

2026-01-26T15:54:23Z

6/9/1970: Justice Harry Blackmun (no relation) takes oath.

Justice Harry Blackmun

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Brickbat: ReTired

2026-06-09T00:57:59Z

California regulators have proposed replacement tire regulations that would dramatically change the aftermarket tire industry by requiring many replacement tires to meet strict fuel-efficiency standards similar to those of original factory tires. Critics argue that these rules could cut the lifespan of many tires by more than half, from around 60,000 miles to about 27,000 miles, forcing drivers to replace them much more often and increasing both costs and waste. The proposal could also effectively ban or limit the sale of certain tires designed for specialized uses, such as high-performance driving or off-roading, because they prioritize grip and durability over fuel efficiency. Opponents say the regulations would reduce consumer choice while offering only modest fuel savings.

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Open Thread

2026-06-09T07:00:00Z

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Ex-DOGE Staffer, Ex-Pete-Hegseth Advisor Justin Fulcher Sues the Guardian for Libel

2026-06-08T22:44:45Z

From today's Complaint in Fulcher v. Guardian News & Media LLC (D.D.C.); of course, these are just plaintiff's allegations:

On June 9, 2025, The Guardian published an Article on its website at https://www.theguardian.com/us-news/2025/jun/09/hegseth-wiretap-inquiry-justin-fulcher …. The Article contains numerous false and defamatory statements of and concerning Mr. Fulcher that are attributed to four unnamed sources. These statements include:

"Hegseth aide upended Pentagon leak inquiry with false wiretap claims".

"ex-Doge staffer Justin Fulcher suggested he had evidence of wiretap that would help investigation".

"Days before Pete Hegseth fired three top aides last month over a Pentagon leak investigation into the disclosure of classified materials, according to four people familiar with the episode, a recently hired senior advisor said he could help with the inquiry."

"The advisor, Justin Fulcher, suggested to Hegseth's then chief of staff, Joe Kasper, and Hegseth's personal lawyer, Tim Parlatore, that he knew of warrantless surveillance conducted by the National Security Agency (NSA) that had identified the leakers."

"Fulcher offered to share the supposed evidence as long as he could help run the investigation, three of the people said. But when he eventually sat down with officials, it became clear he had no evidence of a wiretap, and the Pentagon had been duped."

"The problem was that development was not communicated to the White House—so several Trump advisors who were told of the NSA wiretap claim believed that was part of the 'smoking gun' evidence against the three aides fired by Hegseth, until they developed their own doubts."

"The Guardian revealed last month that there were unsubstantiated NSA warrantless wiretap claims underpinning the leak investigation, but its origin story and the involvement of Fulcher in the controversy has not been previously reported."

"It was not immediately clear why Fulcher chose to become involved in the investigation, but several days after he was replaced as a Doge lead, he went to Kasper and expressed a willingness to help with the investigation, which Kasper attributed to him wanting to prove his worth, two of the people said."

"Kasper told Fulcher to go to Parlatore, who had been tasked with supervising and managing the investigation. When Fulcher approached Parlatore, he suggested that he knew of NSA intercepts supposedly showing that Caldwell had leaked using his personal phone, the two people said."

"Looking back on the chain of events, three people familiar with the conversations described Fulcher's claims as conveniently dovetailing with prevailing suspicions at the time about Caldwell printing lots of documents and his efforts to have the leak investigation shut down."

"Still, a cursory check at that stage into the NSA claims [by Mr. Fulcher] would have shown them to be false."

"The claims [by Mr. Fulcher] were relayed to Hegseth and the White House as being accurate."

In truth, Mr. Fulcher never suggested, stated or otherwise communicated to Joe Kasper, Tim Parlatore, or anyone else that the NSA had conducted warrantless surveillance that identified the source(s) of the leak alleged in the Article, or that Mr. Fulcher had access to such surveillance. Further, Mr. Fulcher never asked Joe Kasper, Tim Parlatore, or anyone else if he could join or assist with an investigation into the leak alleged by the Article, nor did he tell anyone that he could "help run" it….

The Guardian acted with at least reckless disregard for the truth, by consciously disregarding readily available information that showed that the false statements were at least highly likely to be false. Among other things, the NSA is prohibited by law from intentionally targeting United States citizens, persons known to be located within the United States and communications in which the sender and recipients are known to be located within the United States. See 50 U.S.C. § 1881a. Further, the NSA is only authorized to conduct electronic surveillance without a court order for the purpose of acquiring "foreign intelligence" that consists of communications exclusively between foreign powers. See 50 U.S.C. § 1802; see also United States v. U.S. Dist. Ct. for E. Dist. of Mich., S. Div., 407 U.S. 297 (1972) (compliance with Fourth Amendment required for domestic national security matters).

The subjects of the purported warrantless wiretaps alleged by the Article, were, at all relevant times, United States citizens and the leak alleged in the Article was to one or more media outlets located within the United States. As such, the NSA could not have conducted the warrantless searches described in the Article. Moreover, Joe Kasper and Tim Parlatore, as senior officials of the Department of War, and the referenced advisors for President Trump, at all relevant times, had full knowledge of the prohibition on targeting United States citizens and those located within the country, and thus the Article's allegations that Mr. Fulcher had informed Kasper (who was terminated from his position with the Department of War before Mr. Fulcher even began working there) and Parlatore of the existence of purported warrantless wiretaps of United States citizens, and that Kasper, Parlatore and advisors for President Trump believed Mr. Fulcher's alleged statements or had been "duped," are implausible.

Further, had the false statements of and concerning Mr. Fulcher been true (which they are not), it is reasonably expected that Mr. Fulcher would have been disqualified from a position with the government, instead of being brought on as senior advisor for the Secretary of War, Pete Hegseth, as acknowledged in the Article. In addition, in relying on the four unidentified sources for the false statements, The Guardian knew, or should have known, that these sources had an obvious bias against Mr. Fulcher because, among other things, and on information and belief, Mr. Fulcher replaced, at least in part, the role(s) occupied by one or more of the sources, rendering these sources and their statements inherently unreliable.

The Guardian, in making the false statements, also unreasonably believed the accounts provided by the four unnamed sources, who, on information and belief, had been terminated from their government positions, over the express denials of Mr. Fulcher, who at all relevant times, remained in good standing with the United States Government, and who spoke to Hugo Lowell, the author of the Article who resides in Washington, D.C., over the telephone prior to publication and provided a detailed explanation (in addition to the statement published in the Article) as to why the statements at issue were false.

Fulcher claims that the article's publication interfered with three business deals that could have yielded up to about $20M in income.

Note that Fulcher is represented by Ryan Stonerock, Steven Frackman, and Dilan Esper (Harder Stonerock LLP). The firm is a prominent libel law firm, and the one lawyer of the three whom I know in some measure, Dilan Esper, is a serious lawyer: He's been cited in various VC posts, and also has often been seen in the comments, where I've generally found his posts to be quite substantive. Of course, the quality of the lawyers is no guarantee that the lawsuit will prove successful.

The post Ex-DOGE Staffer, Ex-Pete-Hegseth Advisor Justin Fulcher Sues the Guardian for Libel appeared first on Reason.com.

"Plaintiff Also Alleges That the Grammy Awards 'Have Become a Public Nuisance' and Are 'Committing Industrial Espionage'"

2026-06-08T21:47:37Z

From a decision by Judge Fernando Olguin (C.D. Cal.) in Satish Dat Beast v. [Sabrina] Carpenter, filed May 8 but just posted on Westlaw:

On April 9, 2026, Plaintiff filed a Complaint and a Request to Proceed In Forma Pauperis. Plaintiff brings this suit because certain recording artists allegedly "are committing defamation (libel and slander) and/or the dignitary tort of the invasion of privacy by talking about President Donald John [T]rump in a negative manner which could be perceived as violation of the Alien and Sedition Acts." Plaintiff also alleges that the Grammy Awards "have become a public nuisance" and are "committing industrial espionage" with television networks through their programming selections. Plaintiff seeks, among other things, an order precluding Defendants from advertising to him on cable television broadcasts.

No dice, says the court, which had to screen the case because plaintiff sought to sue with a waiver of filing fees. The court notes that plaintiff (who "often uses the name Ronald Satish Emrit") is a frequent and frivolous litigant, and that the particular complaint's allegations are 'clearly baseless,' 'fanciful,' and 'delusional.'"

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Do Democrats Still Have a Big-City Crime Problem?

2026-06-08T21:53:51Z

This week, editors Peter Suderman, Nick Gillespie, and Matt Welch are joined by Associate Editor Liz Wolfe to discuss New York City's falling crime rates and whether Democrats have really solved their big-city crime problem. The panel looks at the recent Penn Station stabbings, subway disorder, fare evasion, and why many New Yorkers still feel uneasy even as murders and shootings decline.

Next, the editors discuss California's recent elections, including Spencer Pratt's bid for Los Angeles mayor, and what these results reveal about voter attitudes toward political leadership and governance. They then examine the political and economic fallout from President Donald Trump's war with Iran. The panel also discusses proposals from Sen. Bernie Sanders (I–Vt.) and Trump to give the federal government a stake in artificial intelligence companies. Finally, a listener asks whether AI-powered surveillance threatens individual liberty.

0:00—New York City's declining murder rate

18:16—California election results

28:22—The economic fallout of the Iran war

38:33—Listener question on AI threats to liberty

49:47—The push to nationalize artificial intelligence

55:45—Weekly cultural recommendations

Mentioned in the podcast:

"D.C.'s Crime Drop Didn't Require a Military Deployment," by Tosin Akintola

"Trump's Middle Eastern Ceasefire: Fiery But Mostly Peaceful," by Matthew Petti

"Trump and Bibi Are Fighting," by Liz Wolfe

"Bernie Sanders' AI Wealth Fund Bill Shows That He Doesn't Understand AI or Wealth," by Tosin Akintola

"Native Americans Taught Colonists How To Fight—and To Live Without Kings," by Charles C. Mann

"Neil Gorsuch on the Declaration of Independence, Originalism, and Separation of Powers," by Nick Gillespie

The post Do Democrats Still Have a Big-City Crime Problem? appeared first on Reason.com.

Federal Court Invalidates Trump's $100,000 H-1B Visa Fee as Illegal Usurpation of Congress' Power to Tax

2026-06-10T16:23:04Z

Earlier today, in the case of California v. Mullin, the US District Court for the District of Massachusetts issued a decision striking down the Trump Administration's $100,000 fee on applications for H-1B visas (which are used by tech firms, research institutions, and other organizations to hire immigrant workers and researchers with a variety of specialized skills). Judge Leo Sorokin ruled that the plan is illegal because it usurps Congress's power to tax. He relies in part on the Supreme Court's recent decision in Learning Resources, Inc. v. Trump, the tariff case I helped litigate:

The Court begins with Plaintiffs' assertion that the Policy intrudes upon Congress's
taxing power. The first inquiry is whether the $100,000 payment requirement constitutes a tax. The parties quibble about whether the requirement resembles a tax or a "penalty," as characterized by two Supreme Court precedents: Bailey v. Drexel Furniture Company and National Federation of Independent Business v. Sebelius….

Here, the $100,000 payment requirement for all H-1B petitions does not aim to establish that hiring H-1B workers is illegal. The payment is not a penalty, just as the IRS fee in Sebelius was not, because it is not "punishment for an unlawful act or omission." Id. at 567. Hiring workers pursuant to the H-1B program is plainly lawful. Of course, rendering the hiring of H-1B workers "unlawful" would eliminate the program established by Congress through the statute, which would raise a different separation-of-powers concern…

Furthermore, Defendants claim that the $100,000 payment requirement is "a regulatory
payment," which is "not the same as a tax…" This is mere ipse dixit. Defendants offer no definition for what constitutes "a regulatory payment," cite no cases or statutes employing the term, and advance no reasoned argument explaining how this term encompasses something different than a tax or a penalty….

That does not end the Court's analysis. While the Constitution exclusively vests
Congress with the "Power To lay and collect Taxes, Duties, Imposts, and Excises," U.S. Const. art. 1, § 8, cl. 1, Congress can delegate the taxing power to the executive branch so long as it "clearly" indicates "its intention to delegate." Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 224 (1989). Thus, the relevant inquiry here is whether the provisions of the INA granting the President discretionary powers to regulate the entry of noncitizens reflect a delegation of Congress's taxing power. Under INA § 212(f), the President has the authority to "impose on the entry of aliens any restrictions he may deem to be appropriate." 8 U.S.C. § 1182(f). INA § 215(a) additionally grants the President the power to impose "reasonable rules, regulations, and orders" as well as "limitations and exceptions" to the entry of noncitizens. Id. § 1185(a)(1).

Plaintiffs argue that these provisions do not confer the power to impose taxes, relying on the Supreme Court's recent guidance in Learning Resources. That case involved a challenge to the President's imposition of tariffs under the IEEPA….. The
IEEPA permits the President to "investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any . . . importation or exploration of . . . any property in which any foreign country or a national thereof has any interest" when responding to a national emergency. Id. at 636. The Court found that the IEEPA does not delegate taxing powers to the President, noting that the specific powers listed in the IEEPA do not include "any mention of tariffs or duties." Id. at 642. The Court further noted that the power to "regulate . . . importation" does not encompass the power to tax, because the term "regulate" "means to 'fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule to restriction; to subject to governing principles or laws'"—none of which captures the power to tax. Id. at 642-43…

Applying Learning Resources to the case at hand, the Court finds that INA §§ 212(f) and 215(a) do not delegate taxing power to the President. These sections allow the President to impose "restrictions," "rules," "regulations," "orders," "limitations," and "exceptions" to the entry of noncitizens to the United States. Like the powers delineated in the IEEPA, none of these terms, by their ordinary meaning, include the power to tax.

I agree with the court's analysis, and am glad the tariff case turned out be a useful precedent here. The court also ruled the imposition of the $100,000 fee violates the Administrative Procedure Act.

I have previously criticized the $100,000 H-1B fee on both legal and policy grounds here, here, and here.

Obviously, today's decision will almost certainly be appealed, and the legal battle will continue. But, especially after Learning Resources, I am guardedly hopeful the various groups challenging the fee will prevail.

NOTE: In the original version of this post, I misidentified Judge Leo Sorokin as the late Judge H. Lee Sarokin. I apologize for the error, which has now been fixed.

The post Federal Court Invalidates Trump's $100,000 H-1B Visa Fee as Illegal Usurpation of Congress' Power to Tax appeared first on Reason.com.

Penis Measurements Cannot Justify a Sex Offender's Indefinite Detention, South Carolina's Top Court Says

2026-06-09T22:11:43Z

South Carolina is one of 20 states that authorize indefinite civil commitment of sex offenders after they have completed their prison sentences. Under state law, such continued detention is allowed only when a jury concludes beyond a reasonable doubt that a respondent qualifies as a "sexually violent predator" (SVP), meaning he "suffers from a mental abnormality or personality disorder that makes [him] likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment."

Although the South Carolina Office of Mental Health (OMH) concluded that Andy Hyman was not an SVP, a jury disagreed, swayed by a second opinion based largely on penile plethysmography (PPG), a scientifically dubious technique that aims to measure sexual response to images, audio narratives, or textual descriptions by gauging tiny changes in the circumference of the subject's penis. That test, the South Carolina Supreme Court unanimously ruled last month in response to Hyman's appeal, is "generally inadmissible in judicial proceedings" because it suffers from a "glaring lack of standardization," which casts doubt on its validity as a predictor of recidivism.

With that decision, the South Carolina Supreme Court joins a long list of state and federal courts that have deemed PPG results unreliable and inadmissible. The technique is so controversial that the OMH, which is charged with conducting pre-commitment evaluations under South Carolina's SVP law, eschews PPG as a matter of policy. But the state is allowed to solicit a second evaluation if it does not like the OMH's opinion, which is what happened in Hyman's case.

Hyman, who pleaded guilty to second-degree criminal sexual conduct with a minor in 1997, served "a short term in prison" and "completed several years of supervised release in 2003," the South Carolina Supreme Court noted. Thirteen years later, Hyman pleaded guilty to the same crime, this time in the third degree, which resulted in a 10-year prison sentence. Before he completed that sentence, the state sought to continue detaining him as an SVP.

Marie Gehle, the OMH's chief psychologist, conducted "a series of standardized tests" and diagnosed Hyman with "pedophilic disorder." But she concluded that he did not fit the statutory criteria for civil commitment because he was not especially likely to reoffend. Unsatisfied with that assessment, the state asked Emily Gottfried, director of the Sexual Behavior Clinic and Lab at the Medical University of South Carolina (MUSC), for a second opinion.

Gottfried agreed that standardized tests placed Hyman "squarely within the average rate of recidivism" for sex offenders. But unlike Gehle, she also conducted a PPG test, which seemed to play an important role in her conclusion that Hyman posed "a heightened risk of reoffending."

During the trial, Gottfried described PPG as "an objective physiological measure of male sexual arousal," "the gold standard" for assessing that response, and a "strong predictor or risk factor for future sexual offending." The PPG results, the state's lawyer told the jury, "clearly indicate[d]" that Hyman had a "current sexual interest in children." That was enough, "in and of itself," to justify his civil commitment, the state argued.

The jury deliberated for just 22 minutes before agreeing with Gottfried. It rejected the contrary assessment offered by Gehle, who testified that most of the tests Gottfried had used were not designed to measure the likelihood of recidivism. In particular, Gehle said, PPG is not reliable, since retests produce inconsistent results, or valid as a predictor of future offending, which she said is why the OMH does not use it for pre-commitment evaluations.

Gehle emphasized that different labs use different PPG procedures, making comparisons impossible. She also noted that Gottfried had used two sets of stimuli, prolonging the test and making a positive result more likely.

The South Carolina Supreme Court elaborated on those problems in its opinion, which was written by Chief Justice John Kittredge and joined by the court's four other members. Although PPG has been used for decades, Kittredge noted, there remains a "significant schism in the scientific community" regarding whether it works as advertised.

"Some experts have focused on the high rate…of false positives and false negatives associated with men's ability to willfully suppress or display arousal," Kittredge wrote. "Other experts have noted there can be significant differences between the results of an offender's initial PPG and a subsequent retest administered several months later. The disparities may be explained, at least in part, by the PPG's inability to account for a host of variables that affect erectile responses." Those variables include "the recency of an offender's last orgasm," "his level of intoxication or fatigue," "his cardiovascular health," "his current medications," his age, his intelligence, the gender of the person administering the test, and the time of year when the test is conducted.

"The scientific community appears polarized as to whether to recognize the PPG as a diagnostic tool for assessing sexual deviancy," Kittredge wrote. "While some experts have found the PPG inherently unreliable—based, in part, on the lack of standardization and high error rate (upwards of twenty percent)—others have concluded the opposite and found the PPG to be an accurate and reliable diagnostic tool." But "even the experts who believe the PPG to be a valuable tool in pre-commitment evaluations acknowledge the test is not standardized."

That is a fatal flaw, Kittredge said, since "following uniform procedures ensures reliability and enables subsequent researchers to reproduce experiments and compare results, thereby validating research findings and improving the accuracy of the data." With PPG, he noted, "there are at least seventeen aspects—some minor, and some major—in which tests can vary from laboratory to laboratory," which underlines "PPG's complete absence of reliability."

The sets of stimuli used in PPG tests, for example, vary widely across labs and are often not specified in the scientific literature. That "makes it difficult to compare results across studies or to replicate a particular study's results in a subsequent study," Kittredge noted.

The cutoff for a positive result also varies. Gottfried testified that researchers typically count a 2.5-millimeter increase in penile circumference as adequate, while she prefers a five-millimeter threshold to reduce the chance of a false positive. But "MUSC's selected cut score is arbitrary," Kittredge noted, because "no studies that we know of indicate a 5-millimeter cut score leads to fewer false positives than a 2.5-millimeter cut score."

Gottfried "did not explain why MUSC had chosen a 5-millimeter threshold instead of, say, 4 millimeters, 7 millimeters, or 10 millimeters," Kittredge wrote. "Additionally, because the cut scores for PPGs are not nationally or internationally standardized, nothing stops MUSC or any other laboratory from arbitrarily increasing or decreasing its cut score to a different, equally random threshold in the future."

The lack of standardization "gives rise to the possibility (or, more likely, probability) that an examinee could be sent to two different laboratories and get two different results based purely on the laboratories' variable and unregulated use of different protocols or stimuli sets," Kittredge noted. "This is wholly inconsistent with recognized scientific practices, preventing any possible finding that the PPG is reliable scientific evidence."

This decision constrains the sort of evidence that can be used to indefinitely extend the incarceration of sex offenders. But it does not question the validity of that policy, a form of preventive detention that the Supreme Court has approved based on legal logic that is hard to follow.

When someone is convicted of a crime, the assumption is that he deserves to be punished because he had the ability to control his behavior. But after he completes his sentence, he can be detained as an SVP based on the contradictory premise that he "suffer[s] from a volitional impairment rendering [him] dangerous beyond [his] control," as the Supreme Court put it in the 1997 case Kansas v. Hendricks.

That's OK, the justices said, because that man is no longer a criminal paying his debt to society. Rather, he is a "patient" receiving "treatment," even if he is unlikely ever to be released based on the government's determination that he has been "cured." That legal distinction seems at least as dubious as the scientific evidence in favor of PPG.

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Bill Introduced in Congress To Codify the First Amendment Right To Film the Feds and Sue for Violations

2026-06-09T16:07:51Z

Two Democratic lawmakers introduced a bill in Congress today that would create a right to sue federal law enforcement officers who stop someone from filming or observing police activity.

Sen. Richard Blumenthal (D–Conn.) and Rep. Maxwell Frost (D–Fla.) introduced the "Right to Record Act of 2026," which they say would create new consequences for individual federal officers who violate a person's First Amendment right to document and record police.

The legislation would create a right to sue a federal law enforcement or immigration officers who engage in wide range of retaliatory behavior, including threatening and harassing videographers, surveilling them, and seizing and destroying their equipment.

The lawmakers cited recent allegations of federal officers targeting videographers in New Jersey, Memphis, and elsewhere across the country, as well as the importance of video evidence in refuting the false government narratives of several shootings of U.S. citizens by immigration agents.

"Over the last year, I've investigated dozens of cases of Americans brutalized by agents of their own government, and across the board, video footage corroborated their testimony – showing the world what they experienced and making sure that justice was served," Blumenthal said in a press release. "Without recordings, we wouldn't know the truth of what happened to Renee Nicole Good, Alex Pretti, Marimar Martinez, George Retes, and so, so many others."

The bill highlights a growing free speech battle: Civil liberties groups say filming the police is a well-established First Amendment right. Although the Supreme Court hasn't directly addressed the issue, eight federal circuit courts* have upheld the right to record and monitor the police, so long as one doesn't physically interfere with them. However, Department of Homeland Security (DHS) officials have repeatedly suggested that such activity is doxing and obstruction of justice. Over the past two years, videos from around the country—from Oregon to Maine to the Florida Keys—have shown federal immigration agents arresting or threatening to arrest people for filming them.

The American Civil Liberties Union (ACLU), which endorsed the Right to Record Act, filed a lawsuit in May alleging that a federal police task force in Memphis is systematically retaliating against residents who try to document its activity.

"The right to observe and record law enforcement is fundamental to our democracy," Jenna Leventoff, senior policy counsel with the ACLU, said in a press release. "We can't hold our government accountable if we can't see for ourselves what they're doing in our communities. Observing and filming allows people to create an independent record, share information with their communities, and demand better from our government. Protesting for what we believe in is a core American value, and observing and filming government activity can drive the protest movements that spark change. All of these rights are squarely protected by the First Amendment, and we're hopeful that Congress will codify them into law by enacting the Right to Record Act."

The bill would also be notable, if it passed, because it is currently next-to-impossible under current law and Supreme Court precedent to sue an individual federal law enforcement officer for a constitutional violation.

The DHS did not immediately respond to a request for comment on the legislation.

*CORRECTION: This article previously misstated the number of circuit courts that have upheld a First Amendment right to record law enforcement.

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Stephen Miller and Pete Hegseth Are Wildly Misleading About Section 702 Warrantless Surveillance

2026-06-08T18:48:07Z

It has been said that patriotism is the last refuge of the scoundrel—but we might need harsher terms to describe how some prominent figures in the Trump administration are appealing to Congress to extend a warrantless surveillance program that is routinely used to spy on Americans.

Lawmakers who refuse to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) are advancing "marxism" and reversing "patriotic reform," argued Stephen Miller, the White House deputy chief of staff, in a post on Twitter.

"A libertarian demand to make SecWar get approval from liberal DC judges (the ones who targeted Trump) is madness," Miller wrote in a separate post.

What has Miller in such a tizzy? On Friday, a bipartisan group of senators (including seven Republicans) blocked the renewal of Section 702 in response to President Donald Trump's nomination of Bill Pulte to be the new director of national intelligence. Without congressional approval on an extension, those spying powers will expire on June 12.

With reauthorization uncertain, Trump—who used to oppose the reauthorization of federal warrantless spying powers—and the rest of the White House are pulling out all the stops. "America faces real threats from foreign adversaries, terrorists, cyber actors, and hostile intelligence services," wrote Defense Secretary Pete Hegseth in his own Twitter post about the reauthorization fight. "Section 702 remains one of our nation's most effective tools for identifying and disrupting those threats before they reach our shores."

Both Miller and Hegseth are misleading about what Section 702 does and what critics of the program would like to see.

Though it has always been justified as a national security program aimed at spying on foreigners, Section 702 allows for the warrantless collection of Americans' emails, text messages, phone calls, and other electronic communications. There are few practical limits on how the FBI, CIA, and other intelligence agencies can use the Section 701 database. The program has been used to spy on the communications of protestors, members of Congress, journalists, and more.

And despite how the latest renewal effort in Congress has been branded, civil libertarian groups say the bill actually expands the government's spying powers rather than constraining them.

"The bill is packed with provisions to create the impression of reform, but it is carefully designed to preserve the status quo regarding warrantless access to Americans' communications," warns the Brennan Center for Justice. "Even more alarming, it would make it easier for the government to use Section 702-acquired information against Americans in court. The proposal creates no limits on backdoor searches, let alone a warrant requirement."

The three-year extension of Section 702 that passed the House in April did not include a requirement that intelligence and law enforcement agencies get a warrant before accessing the Section 702 database. That should be the bare minimum for surveillance reform. Instead, Congress and the Trump administration seem to be moving in the other direction.

In a letter to Congress sent earlier this month, the Electronic Privacy Information Center (EPIC) wrote that its coalition members were "deeply concerned by recent efforts to reauthorize Section 702 without meaningful improvements to protect Americans from warrantless surveillance, or even allow votes on such reforms."

Contra Miller, this is not "madness," and the "libertarian demand" here is, simply, that the government abide by the Fourth Amendment and respect the privacy rights of all Americans. Opposition to warrantless surveillance is not "Marxism" or some sort of conspiracy to undermine the country.

That argument isn't even working on Twitter, where Miller's posts have been slapped with a community note. It certainly should not convince anyone in Congress, where lawmakers should demand a strict warrant requirement (at a minimum) before extending Section 702.

The post Stephen Miller and Pete Hegseth Are Wildly Misleading About Section 702 Warrantless Surveillance appeared first on Reason.com.

What Judge Wood Did Not Say About Judge Ross's Misconduct (Updated)

2026-06-10T15:10:43Z

Bloomberg Law published an unusual Op-Ed by retired Judge Diane Wood of the Seventh Circuit. Judge Wood discusses the Judge Ross situation, but leaves much out. I think what Wood did not say is far more important than what she did say.

First, here is how Judge Wood describes the facts:

The misconduct was of a personal nature: Judge Ross was engaged in a sexual relationship with a law-enforcement officer whose department regularly appeared before that judge.

If a student at the University of Chicago offered that summary of the case, she would be failed. Judge Ross's sexual activity was appalling, but the most severe transgression was lying to the Chief Judge of the Circuit and the Chief Judge of the District. The closest Judge Wood got to acknowledging the dishonesty was this sentence:

Because Ross ultimately confessed everything and expressed what the committee regarded as genuine remorse…

This is a very roundabout way of saying she confessed to the sex and confessed to lying.

Second, Judge Wood offers no comment about the Eleventh Circuit Judicial Council's decision to issue a private reprimand. The most she will say is that the Judicial Conduct & Disability Committee did not err in affirming that decision.

The JC&D Committee had to decide what would most likely produce the desired result—permanent cessation of that kind of behavior. It also had to decide whether it believed that the judge's remorse and willingness to mend her ways were genuine. Others may have decided differently, but I see nothing here that casts doubt on the genuineness or integrity of the decisions the JC&D Committee made.

Why wouldn't the decision be genuine or have integrity? The relevant question is whether it is correct as a matter of law. But even this question is constrained, as the JC&D Committee's review was limited to a deferential standard. Here is the entirety of the analysis:

In light of our review for errors of law, clear errors of fact, or abuse of discretion, and in deference to the Circuit Judicial Council's consideration of the special committee's review of the evidence, we affirm the Circuit Judicial Council's unanimous decision concluding that the subject judge's actions constituted judicial misconduct. The special committee conducted a thorough investigation and afforded the subject judge all the process that was due under the JC&D Act and the Rules. Accordingly, we find no error of law or abuse of discretion in the special committee's investigatory process. And we conclude that the remedial measures ordered by the Judicial Council under 28 U.S.C. § 354(a)(2)(A) are appropriate and proportionate to the Judicial Council's findings in relation to the seriousness of the misconduct, balanced against the subject judge's correction of the prior false statements and subsequent candor with the special committee, the special committee's assessment that the subject judge is unlikely to engage in similar misconduct in the future, and the subject judge's otherwise exemplary service to the court.

The finding was affirmed based on no "abuse of discretion" or "error of law." This is not exactly a ringing endorsement of the Eleventh Circuit's ruling, which I'll note had no noted dissents--the only name on the document was Chief Judge Pryor. Does Judge Wood think the Eleventh Circuit Judicial Council made the right decision in the first instance? We don't know.

Third, Judge Wood suggested that there are limits on how judges can be reprimanded. She suggests that taking away cases from a judge amounts may be unconstitutional:

Some have argued that this system is unduly solicitous of judges who engage in behavior so obviously unbecoming a federal judge. They contend that, at a minimum, this kind of misbehavior should always be made public. But there is only so far that the Conduct Act can go before it bumps into the constitutional protections for a judge's tenure in office.

Indeed, some think that depriving the judge of her caseload is a de facto temporary removal from office and thus beyond the power of the judiciary. Critically, however, the judge is actually not removed and continues to receive her salary.

Where has Diane Wood been on the Pauline Newman case? Has she published any op-eds criticizing Chief Judge Kimberly Moore? Why did she not join former-Judge Paul Cassell's amicus brief in support of Judge Newman's cert petition?

Fourth, Judge Wood makes it seem like no other punishments were possible. She doesn't state the obvious: the reprimand should have been made public. Judge Ross could have kept her cases, but she would have faced litigants who perceive a plausible conflict of interest. That act would have been punishment by itself.

Fifth, Judge Wood reflects on her own tenure:

As chief judge of the US Court of Appeals for the Seventh Circuit for nearly seven years, I well appreciate the constitutional tight-rope that these cases present.

Chief Judge Wood helmed the Seventh Circuit during the final years of Richard Posner's decline. I think an entire book could be written about how Judge Posner flouted the rules of judicial conduct, yet his colleagues took no public actions against him (See update below). Maybe he should have been given the Pauline Newman treatment so he could spend all of his efforts on writing books. Indeed, Judge Posner's final act after resigning was to publish a bizarre book that attacked his colleagues based on confidential information. I do not think Judge Wood was the right person to comment on failing to take adequate action against a misbehaving judge.

Finally, I mention one last point, with some hesitation. Arthur, Gabe, and I pitched our essay to Bloomberg Law. The editor promptly got back to us and wrote "I don't think this fits into our coverage." Apparently, Judge Wood's non-defense of the courts does fit into the coverage. Go figure.

This entire piece feels forced. I think someone in the judicial apparatus asked a well-regarded, retired judge to defend the handiwork of the Eleventh Circuit. But she couldn't quite do that. She said very little, and reinforced how indefensible the Eleventh Circuit's private reprimand was. I'm not buying it. I've yet to talk to an actual judge who thinks the Eleventh Circuit got it right. If someone wants to defend what the Eleventh Circuit did here, they will actually have to discuss in detail.

I would hope that one of the law clerks who initially blew the whistle opts to appeal this matter to the full Judicial Conference. Chief Justice Roberts cannot simply turn this matter over like a couch cushion.

Update: A colleague wrote, "I just read Judge Wood's op-ed again, and I realized what it reads like: the hostage statement of someone who has been kidnapped." Yes, I agree. Also, how can Judge Wood say with certainty the subject judge was Eleanor Ross, and not even mention the reprimand was private. This situation seems like a fix.

Update #2: In my initial post, I wrote that Judge Wood and her colleague took "no actions" against Judge Posner. I meant to convey that she took no public actions. Indeed, I know Judge Wood took private action concerning Judge Posner because Judge Posner revealed that confidential information in his final book (which was published after he retired, not before, as I erroneously noted). Chapter 2 is titled "I encounter the Code of Conduct." Judge Posner publishes internal emails from Judge Wood concerning the ethics process against him. Here is one excerpt:

Yet on July 13, 2017, the chief judge sent me a copy of a letter she'd recently written to Chief Judge Rebecca Smith of the Eastern District of Virginia, who chairs the Judicial Conference Committee on Codes of Conduct. The letter repeated the chief judge's earlier criticisms of my intention to publish in a forthcoming book (this book in fact) portions (in a few instances the entirety) of orders or memos written by our staff attorneys.

Posner also attacked two of his colleagues, though not by name:

I'm disgusted by all this chatter behind my back by my "colleagues." But that said, I have to admit that I am not above occasionally engaging in such chatter, and that I've decided to note two recent clashes with colleagues, whom however I shall not name.

I've modified my post to say there was no "public action" taken, and also corrected that the book was published after Posner retired.

The post What Judge Wood Did Not Say About Judge Ross's Misconduct (Updated) appeared first on Reason.com.

The Pentagon's New War - Canceling American Religion and American History

2026-06-08T20:31:23Z

Professor Paul Finkelman has asked me to post the following guest post, and I am more than happy to do so. Prof. Finkelman is a leading legal scholar and legal historian, and is the President William McKinley Distinguished Professor of Law and Public Policy, emeritus at Albany Law School.

For my part, I will note that I agree with most of his analysis. As a general rule, the government should not be in the business of promoting or discouraging religious observances. But the military presents a special case, because the lives of members of the armed forces (while on duty) are under government control to such an extent, that - in many situations - there is no way for them to practice their faiths unless the government facilitates it in various ways. When the government does that, it should not discriminate between adherents of different religions. What follows is written by Prof. Finkelman, and not me (Ilya Somin):

The Trump administration recently announced that it is removing about 180 religions from those recognized by the Pentagon. This is an obvious violation of the First Amendment's protection of religious liberty. In essence, the Administration has "established" 31 religions as acceptable to the U.S. government and denied religious freedom to members of many other faiths. Plausibly, the Pentagon could decide not to have military chaplains, and not to have religious symbols on military graves, and no longer provide a color guard for veterans buried in cemeteries tied to particular faiths. It could prohibit military personnel from giving last rites to when those in the military die in combat or a military hospital. Members of the armed services would no longer have their religion on the dog tags. This would presumably not violate the First Amendment because the government would be taking a complete "hands off" policy to religion.

Such a policy would run counter to the history of the American military starting with the Revolution. It would also undermine the morale of those who put their lives on the line for the nation. In our 250 years as a nation, we have increasingly expanded the range of religions recognized by the military. Initially, all chaplains were Protestant ministers. During the Mexican-American War President James K. Polk appointed two Catholic chaplains, reflecting the changing demographics of the nation. During the Civil War, the Lincoln administration intervened to allow rabbis to serve as chaplains. Today chaplains, whatever their background, are trained to serve members of all faiths. But, with this new rule, policies will change. Dog tags will no longer recognize the faiths of many service personnel. Chaplains may not respect the religious concerns of those who serve. Chaplains, trained to serve people of all faiths, may no longer be able to do so.

The message of the administration is that some faiths matter, and many do not. There seems to be some politics involved here. The "liberal" Unitarian/Universalist Church, which is as old as the nation itself, is no longer officially a church. Nor are churches tied to minorities, such as the Native American Church or the African Methodist Episcopal Church (AME).

This policy is in conflict with the First Amendment, because the President and Secretary of Defense have in fact "established" 31 religions as being legitimate and worthy of government support, and asserted that about 180 are not either "real" religions or worthy of support.

Ironically, the Pentagon announced this on the anniversary of the D-Day invasion in World War II, when about 2,500 American men (and another 2,000 allies from Canada, Great Britain, and other allies) died. Some of those who died were probably members of faiths that the Pentagon no longer recognizes as "real" religions.

This slap in the face to Americans of minority faiths (and their families) who have died for our country is a direct assault on the Constitution. Among those religions that have now been cancelled by the administration (making it the leader of cancel culture in America,) are some of our most venerable faiths including Congregational Churches, the United Church of Christ, Unitarian/Universalist, Disciples of Christ, Mennonite, Moravian, Dutch Reformed, Adventist churches (other than Seventh Day Adventists), African Methodist Episcopal (AME), AME-Zion, the Native American Church, traditional tribal religions, and Deists In addition, religions practiced by many people who landed on our shores from the mid-Nineteenth to the present, such as Confucianism, Coptic, Druze, Zoroastrianism, and Santeria, which are no longer recognized as religions.

Some of the designations on the list seem utterly weird and arbitrary. The list of acceptable faiths includes many that are designated "Christian," with the name of a denomination after that term. However, the list does not designate the Church of Jesus Christ of Latter-day Saints (LDS) as Christian. That would probably come as a great surprise to the more than six-and-a-half million members of the Utah based Church. As the Church notes on its website: "Members of The Church of Jesus Christ of Latter-day Saints unequivocally affirm themselves to be Christians."

By denying that members of the LDS Church are Christians, the administration is taking sides in a complicated theological debate between some Christian theologians and LDS theologians. This is emphatically not a debate in which the Pentagon, the President, or the federal government should take sides. This decision has also infuriated political leaders and LDS Church leaders in Utah.

However, even as it recognizes the LDS Church based in Utah, the list does not include the Reorganized Church of Jesus Christ of Latter Day Saints, which for last quarter century has called itself Community of Christ, based in Missouri. Thus, Secretary Hegseth and President Trump have not only declared that Mormons are not Christians but have also decided which is the "real" Mormon Church. This is a type of establishment determination that the First Amendment prohibits.

This new policy is being implemented while the President and his administration are gearing up to celebrate the 250th anniversary of the Declaration of Independence. The policy is a direct refutation of the American Founding and insult to the memory of many of the most important Founders of our nation. At least a dozen of the signers of the Declaration of Independence, including its most important co-authors, practiced faiths that the Secretary of Defense and the President have decided are not "real" religions, or at least religions worth of respect.

In 1776 the Continental Congress appointed a five person committee to write the Declaration of Independence. Three were members of faiths that Donald Trump and his minion, Pete Hegseth, have just cancelled. John Adams was a Unitarian and Thomas Jefferson and Benjamin Franklin were Deists. The President and his Secretary of Defense want to cancel other signers as well. Benjamin Rush was a Deist, like Franklin and Jefferson. John Bartlett, a signer from New Hampshire, is buried in a Universalist graveyard. At least seven signers were members of Congregational Churches, including such significant founders as Roger Sherman, Oliver Wolcott, and Robert Treat Paine. These denominations can still be found in the United States, but not in the new Trump/Hegseth military. Most Congregational Churches morphed into the United Church of Christ (UCC) in the late twentieth century which today has more than 4,600 churches, but the President and Secretary of Defense have also canceled that. [Secretary Hegseth does list the "Church of Christ" as an acceptable religion, but that is a different denomination from the UCC.]

After the Declaration of Independence was signed, Americans of all faiths fought for the cause. The current administration has cancelled the faith of Major General Philip Schuyler, the commanding officer of the New York militia (and the father-in-law of Alexander Hamilton), because he was Dutch Reformed. Major General Israel Putnam, a New Englander, could not have a dog tag that states his faith, because he was a Congregationalist.

Trump and Hegseth want to cancel numerous presidents because of their faith. In addition to John Adams and his son John Quincy Adams, Millard Fillmore and William Howard Taft were also Unitarians. Taft, a conservative Republican, was Secretary of War (when that was actually the real name of the department) and then President. He later served as Chief Justice of the United States. He is buried in Arlington National Cemetery. It is not clear if that could happen today since the military no longer recognizes the Unitarian faith. Nor does it recognize the Dutch Reformed faith of Presidents Martin Van Buren and Theodore Roosevelt. Col. Roosevelt is remembered for leading a regiment he organized, the Rough Riders, in the Spanish American War. Today Secretary Hegseth might let him command troops, but the Army would not recognize his faith as a "real" religion. President James A. Garfield, who was also a major general in the Civil War (and led troops at Shiloh and Chickamauga) was a member of the Disciples of Christ. Lyndon B. Johnson, who was a Commander in the Navy in World War II and a reserve officer for more than two decades after the War, was also a member of the Disciples of Christ. But you won't find a minister from that faith in today's Army, Navy, Air Force, Marines, and Coast Guard. Trump and Hegseth have cancelled it.

During World War II the Navajo Code Talkers risked their lives as Marines, providing real time intelligence of Japanese troop movements, while speaking on radios in Navajo. Many code talkers were members of the Native American Church or a traditional Navajo faith. In Europe, about 10,000 American soldiers of Japanese ancestry served the Nisei Brigade, the most decorated unit in American military history. More than 4,000 of these Japanese-American soldiers were awarded purple hearts for their combat wounds and more than 4,000 also earned a bronze star and other medals for valor, including the Congressional Medal of Honor. Some of these courageous soldiers followed the Shinto faith. At the same time, the separate unites of the Tuskegee airmen earned three Distinguished Unit Citations while individual Tuskegee airmen earned more ninety-five distinguished Flying Crosses, many purple hearts, and more than 750 other medals for their heroism. The Tuskegee fighter escorts lost, on average, about half as many bombers as other escort units. Many of these airmen were members AME and AME-Z churches. But, the faiths of the code talkers, the Nisei Brigade and the Tuskegee airmen are now verboten by orders of Trump and Hegseth.

The Hegseth/Trump announcement – on the anniversary of D-Day – loops us back to the insult to followers of religions that the United States no longer honors or recognizes. Among those landing at Normandy was 56 year old Brigadier General Theodore Roosevelt, Jr., the son of the President Teddy Roosevelt. He was the oldest soldier, and the only general, to land at Normandy on D-Day. Although suffering from arthritis and heart disease he led his troops with distinction until he died of heart failure in July. He received the Congressional Medal Honor, posthumously, for his incredible leadership at Normandy. But today, the historic religion of his family—the Dutch Reformed Church—along with the faiths of tens of thousands of other veterans, has been removed from our military.

We honor Ben Franklin, John Adams, and Thomas Jefferson, Presidents John Quincy Adams, Van Buren, Fillmore, Garfield, Teddy Roosevent, and Taft, the Navajo Code talkers, the Niese Brigade, the Tuskegee Airmen, and General Teddy Roosevelt, Jr., for their patriotism and courage. It is a sad day that the President and his Secretary of Defense dishonor their religions and their faith.

The post The Pentagon's New War - Canceling American Religion and American History appeared first on Reason.com.