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Lawsuit Alleging Bank Played Role in Facilitating "Jeffrey Epstein's … Sex-Trafficking Operation" Can Go Forward

2026-10-14T20:40:03Z

From Molchonova v. FirstBank Puerto Rico & First Bancorp, decided today by Judge Jed Rakoff (S.D.N.Y.):

On September 25, 2026, this Court issued a "bottom-line" Order granting in part and denying in part the motion of defendants FirstBank Puerto Rico and First Bancorp (collectively "FirstBank") to dismiss the complaint brought by plaintiff Julia Molchonova. This Opinion sets forth the reasons for that Order….

An excerpt of Molchonova's allegations (which are just allegations at this stage):

Molchonova, who was one of Epstein's victims, alleges that FirstBank participated in, and benefited from, Epstein's vast criminal enterprise in violation of federal and local law…. As alleged, FirstBank maintained dozens of accounts for Epstein, his entities, and his agents, facilitated millions of dollars in transfers to and from these accounts, and served as a banking reference for Epstein when he sought to charter his own banking entity. These services, among others, were "integral in helping [Epstein] trafficking operation." …

The court allowed Molchonova's claim under the Trafficking Victims Protection Act ("on behalf of a putative class of Epstein victims") to go forward:

As this Court recently explained, the TVPA imposes civil liability on any "person or entity that knowingly benefits, or attempts or conspires to benefit, financially or by receiving anything of value from participation in a venture which that defendant knew or should have known has engaged in an act in violation of the TVPA." Participant liability "involves three elements: first, that the defendant participated in a commercial sex trafficking venture; second, that the defendant knew or should have known that the venture either involved the perpetrator's use of force, the threat of force, fraud, or coercion to cause the victims to participate in sex or that the venture involved sex with victims who were under the age of 18; and third, that the defendant benefited from its participation in the venture." …

[F]or her participation claim to survive, Molchonova must allege more than that FirstBank provide routine banking services to the Epstein venture. The Court concludes that she has done so. Molchonova has alleged an extensive, longstanding, and continuous relationship between FirstBank and Epstein. For more than two decades, FirstBank opened and maintained more than 30 accounts for Epstein and related entities. The Complaint alleges that these accounts were used to pay victims, and circulate millions of dollars in funds between various Epstein-related entities and individuals, FirstBank processed millions of dollars in payments from Epstein's personal accounts to the FirstBank accounts of entities held by Epstein and his known associates. Several of these entities owned the properties where much of Epstein's trafficking and sexual abuse transpired, while others made payments to victims of Epstein's abuse.

While such extensive activity was more than "routine," what is crucial is that Molchonova has alleged with specificity that FirstBank maintained this extensive and longstanding relationship with Epstein despite ever more extreme "red flags" that ultimately led every other bank to drop him as a client.

Between 2007 and 2015, HSBC, Goldman Sachs, Bank of America, Merrill Lynch, JP Morgan Chase, UBS, and CitiBank all terminated their relationships with Epstein. But FirstBank simply took advantage of these closures to enhance its profitable banking relationship with Epstein. For example, in 2018, "both Fidelity Investments and Deutsche Bank closed its [sic] accounts with Epstein and sent funds from those closures to FirstBank."

At best, these allegations demonstrate an astonishing ignorance to the apparent consensus of the financial services industry not to provide banking services to someone whose grotesque misconduct was becoming ever more obvious. At worst, drawing all inferences in Molchonova's favor, the complaint alleges that FirstBank provided continuous and substantial financial services to Epstein and his associates despite knowing that these services were being used to further Epstein's sex trafficking venture. See Bank of Am. (finding that facilitating wire transfers constituted participation for purposes of the TVPA because the defendant "had every reason to know that [the plaintiff] had no ability to earn legitimate income in the United States and that Epstein, who arranged the set-up of the account and was involved with the transfers, had already been convicted of sex crimes involving underage girls").

While any one of FirstBank's services to Epstein may be claimed to be "routine" (though in many instances even that is suspicious), together, the complaint alleges that FirstBank was deeply enmeshed in Epstein's misconduct for its own financial benefit….

Having concluded that Molchonova has alleged participation, the Court turns to the second element—whether Molchonova "adequately alleges that [FirstBank] either knew or should have known that Epstein's venture used force, the threat of force, fraud, coercion, or some combination of the same to cause its victims to submit to sex, or that the victims who submitted to sex were under the age of 18." The Court concludes that she has.

As an initial matter, knowledge, for purposes of the TVPA, requires only that the defendant "'should have known' in the usual sense of negligence." … Molchonova's complaint alleges that, throughout its twenty-plus-year relationship with Epstein, FirstBank ignored considerable, publicly available information about Epstein and his close associates. As this Court previously explained with respect to a different bank, "while [FirstBank] was not required to automatically credit" these sources of information about Epstein, "the amended complaint plausibly asserts that the bank turned a blind eye to these repeated, detailed allegations, some emanating from police reports widely circulated in the press, by utterly failing to engage in due diligence about them."

Molchonova also alleges that there was significant FirstBank account activity that itself should have raised red flags. For instance, in 2018—after years of media and law enforcement reports describing Epstein as a sexual abuser and sex trafficker—FirstBank opened a bank account for one of Epstein's victims using the same address in the U.S. Virgin Islands as Epstein and his other related accounts. Likewise, Molchonova alleges with sufficient specificity that Epstein and his agents7 owned a network of FirstBank accounts including accounts for entities and properties that were publicly linked to Epstein's abuse and trafficking venture that received millions of dollars in transfers from other of Epstein's accounts. And, as emphasized above, the complaint plausibly alleges that FirstBank should have been aware of the laundry list of other banks that cut ties with Epstein in the decade preceding his death in 2019….

The third element of a TVPA participation claim is that a defendant must have benefited from its participation in a sex trafficking venture. This element can be satisfied by "allegations that [FirstBank] knowingly received revenue from its participation in generally assisting a venture that it knew, or should have known, involved sex trafficking."…

Molchonova's allegations easily satisfy this standard. She alleges that "Epstein only offered his business to FirstBank because it was knowingly aiding Epstein's sex trafficking operation and the concealment thereof. FirstBank knew that if it stopped aiding the operation, it would lose the Epstein-related accounts and the financial benefits attached to handling those accounts." She also alleges that "FirstBank financially benefitted in the form of profits, high-net-worth clients, and other financial incentives, for its participation in the Epstein sex-trafficking venture." These allegations plainly state that FirstBank profited from its longstanding and continuous relationship with Epstein, and plausibly proffer that Epstein would not have continued banking with FirstBank if it did not turn a blind eye to his use of FirstBank's services to facilitate his sex trafficking venture….

For similar reasons, the court also allowed Molchonova's claims under the New York City Gender-Motivated Violence Protection Act to proceed. But the court dismissed her claims "that FirstBank obstructed enforcement of the TVPA in violation of 18 U.S.C. §§ 1591(d) and 1595":

As this Court has previously concluded in a substantially similar case, "[b]ecause Congress enacted Section 1591(d) in 2008 and did not give that provision retroactive effect, the investigations that resulted in Epstein's 2006 guilty plea and his 2007 non-prosecution agreement there cannot support plaintiffs' claim for obstruction." Accordingly, the relevant inquiry for purposes of Molchonova's obstruction claim is whether she has alleged that FirstBank knew of a post-2008 effort to enforce the TVPA and intentionally obstructed, or attempted to obstruct, that enforcement effort. The Court concludes she has not….

The post Lawsuit Alleging Bank Played Role in Facilitating "Jeffrey Epstein's … Sex-Trafficking Operation" Can Go Forward appeared first on Reason Magazine.

Trump's $90 Checks to Seniors Look a Lot Like Vote Buying

2026-10-14T20:16:47Z

With less than three weeks until Election Day and Republican approval numbers down, President Donald Trump is taking unorthodox measures to drum up support for the GOP. Last week, Trump sent out $90 payments to over 20 million Americans on Medicare Part B—which covers doctor visits and regular checkups. The money was made available to help seniors "pay for their Medicare Part B premiums," which cost $202 per month.

In a Truth Social post, Trump said the money is coming from "a pointless 'Slush Fund'" known as the Medicare Improvement Fund, which, though bombastic, is an accurate telling of how lawmakers have used the account.

The fund was created in 2008 "to improve program management" of Medicare. However, as a 2023 report from the Congressional Budget Office (CBO) points out, this fund has really served one purpose far above supporting Medicare: sneaky government accounting.

As the CBO wrote, "No funds have been spent by [Centers for Medicare & Medicaid Services] from either improvement fund since their establishment in 2008." Instead of using the fund to support Medicare programs, Congresses have filled up the fund with money scheduled for use only in the distant future, then siphoned that money away to other legislation. Under CBO accounting rules, canceling or redirecting future spending is a "credit" to the bill's total cost—a helpful trick for legislators who want to couch their initiatives as being affordable. This trick was used to finance nearly $21 billion of the Affordable Care Act and has been used for a scattering of legislation since.

While Trump says this disbursement is needed to help enrollees pay premiums, the timing of the announcement—weeks before the midterms—and Trump's history of using taxpayer money to win over senior citizens make the claim dubious. In the One Big Beautiful Bill Act, for instance, seniors were given a $6,000 tax deduction. Trump has also consistently defended senior-focused entitlement programs like Social Security and Medicare, which are both facing a funding cliff in the coming years. Trump siphoning off public money to turn out the electorate hasn't been limited to senior citizens either. Last month he promised to hand out $5,000 checks to all Americans—conditional upon Republican victory in the midterms.

Despite grumbling by some Democrats about Trump's decision to empty the Medicare Improvement Fund, it seems unlikely the choice will detract from Medicare's ability to provide services. The bigger concern is that the president is using his office to hand out personally signed checks to voters weeks before an election. Pre-election vote grabbing through irresponsible spending is not unprecedented, but it has rarely been so characteristic.

The fiscal ramifications of Trump's unorthodox spending are also concerning. Medicare is already teetering toward insolvency, and entitlement spending continues to balloon. Neither Congress' playbook of deceptive accounting nor Trump's vote buying will address these problems. Without raising taxes or lowering benefits, these programs cannot continue as they are.

But raising taxes and cutting benefits is no way to win an election. Trump knows this and seems perfectly willing to sacrifice America's fiscal stability for a quick boost in the polls.

The post Trump's $90 Checks to Seniors Look a Lot Like Vote Buying appeared first on Reason Magazine.

Second Amendment Rights Forfeited by Past Terroristic Threats Conviction

2026-10-14T20:06:42Z

Some excerpts from the long Third Circuit en banc opinion yesterday by Judge Stephanos Bibas in U.S. v. Bost (for another Third Circuit en banc case decided yesterday that reached the opposite result on different facts, see Second Amendment Rights Not Forfeited by Past Drunk Driving Conviction):

The right to keep and bear arms has limits, and this is one: Those who pose a risk of physical violence from misusing guns can be disarmed before that risk becomes a reality. Not every convict poses such a risk—but James Bost does. He pleaded guilty to terroristic threats and other crimes. Years later, police caught him with a pistol not once, but twice. So he was charged with having a gun despite his convictions, in violation of 18 U.S.C. § 922(g)(1), which makes it illegal for felons to have guns….

But Bost's violent conviction is prima facie enough to disarm him. We hold that some predicate crimes (like Bost's conviction for terroristic threats) demonstrate a prima facie risk of physical violence from misusing guns and that those convicted of such crimes may presumptively be disarmed based on those convictions alone….

In 2002, Bost carjacked someone, threatening to kill the driver unless she gave him money. To get that money, he drove to her mother's home, where she escaped from the car, screaming for help. Bost was then arrested and pleaded guilty to terroristic threats and criminal conspiracy (as well as false imprisonment and simple assault). Those first two Pennsylvania crimes are first-degree misdemeanors punishable by up to five years in prison. One element of the terroristic-threats crime required "a threat to commit any crime of violence with intent to terrorize another." Bost was sentenced to four years' probation.

Later, while on bail for another arrest, Bost failed to appear in court. U.S. Marshals tracked him down. They found him in his girlfriend's home, next to a couch with a stolen .38 caliber pistol on it. Bost was indicted federally for possessing a stolen gun and possessing a gun despite his convictions (based on the terroristic-threats and conspiracy convictions). He moved to dismiss the indictment, arguing that § 922(g)(1) [the federal bans on felons possessing guns -EV] is unconstitutional as applied to him and that it is facially unconstitutional….

The court held that the case against Bost could go forward:

The Second Amendment secures the right of "the people" to "keep and bear Arms." Since felons are part of "the people," the amendment protects what § 922(g)(1) forbids—a felon's having a gun. So the government must justify this restriction by analogizing to our nation's historical tradition of gun regulation….

Two years ago, we held § 922(g)(1) unconstitutional as applied to a man with a prior conviction for food-stamp fraud.. But we flagged a limit to our holding, stressing that the government had no evidence that Range posed a risk of violence to others or that his crime "[was] closely associated with physical danger." That aligned with the Supreme Court's later holding in Rahimi that, under a law banning such people from having guns, someone who poses "a clear threat of physical violence to another" person "may be disarmed." … So § 922(g)(1) is constitutional insofar as it disarms convicts who pose a risk of physical violence from misusing guns.

Now we ask … how may the law address a risk of violence[, focusing on] … the nature of the restriction imposed, the process used to impose it, and its duration….

Historically, there were two paths to disarming people. One was individualized: A court found someone to pose a risk of physical violence from misusing guns and disarmed him. The other was categorical: A law targeted a disloyal group that risked violence to the community. In those instances, a member of the group could often get his rights back by showing that he himself did not pose a risk of violence.

Individualized judgment was the norm. For centuries, disarmament was tied to a judge's finding that someone posed a risk of physical violence from misusing guns. Sometimes, that meant punishing risky behavior. Going-armed laws punished and disarmed those who used their weapons to menace others. Rooted in the old bans on affrays, they targeted conduct that spread fear and threatened the peace: going armed "to the Terror of the People." These laws were often enacted with bans on fighting, together targeting conduct likely to lead to violence.

Other laws, like surety laws, aimed to prevent harm before it happened. If someone credibly feared that another person posed a risk of physical violence, including by misusing his arms, he could complain to a magistrate. The magistrate would hold a hearing, weigh the evidence, and decide whether the accused was likely to breach the peace. If the risk was real, the accused had to post a bond promising to keep the peace for up to six months. If he failed to post it, he would go to jail; if he breached the peace, he would forfeit the bond. Either way, the restraint was tailored to the person's risk….

To be sure, some laws disarmed categories of people, but these examples are few, fraught, and often discriminatory. Most founding-era bans disarmed political enemies—groups thought capable of collective rebellion. These measures were tied to allegiance and often lifted once the perceived threat passed. Plus, many applied to groups that lawmakers refused to treat as part of "the people" protected by the Second Amendment, like slaves and American Indians. Both features meaningfully distinguish these historical bans from today's across-the-board ban on felons. Even so, their procedures for rearmament are instructive…. [R]earmament was not automatic. Often, the disarmed person had to make some showing that he no longer posed a risk of violence…. [This paragraph, and the section that contains it, got only 7 of the 14 total votes; Judge Tamika Montgomery-Reeves, who joined the rest of the opinion, declined to join this part because it "relies on repugnant and discriminatory laws and procedures that would very likely violate the First and Fourteenth Amendments of the U.S. Constitution…. I question whether the invidious, and likely unconstitutional, laws undergirding these rearmament procedures are valid inputs for Bruen's test. I need not answer that question, however, because less constitutionally infirm comparators support the same conclusion."]

Bost's Violent Conviction Suffices, at This Early Stage, to Show His Risk of Violence …

Some predicate crimes speak for themselves. Violent offenses, like common-law murder, forcible rape, and common-law robbery, mark a person as such. And the going-armed laws disarmed people whose conduct was threatening. These types of convictions suffice to justify disarmament. We do not require that the predicate violent or threatening crime itself involved guns or the threat of guns. Unarmed forcible rapes, for instance, can qualify.

Other predicate crimes speak for themselves in the other direction: They are not even physically dangerous, let alone violent.

There may perhaps be a third, intermediate category: Still other predicate crimes may be closer calls. Though they may not involve immediate violence, they may fuel it and pose risks to the community. Whether these predicate crimes justify disarmament depends on their own historical analogies.

So at either end of the spectrum, the predicate crime tells the court enough about the felon's risk of physical violence to decide whether to dismiss a § 922(g)(1) indictment. In the middle, it is possible that courts may have to draw more lines.

But if so, we need not draw them today. Bost was convicted of terroristic threats. The elements of that predicate crime included "a threat to commit any crime of violence with intent to terrorize another." … That conduct fits squarely within the historical tradition of disarming those who threaten violence. It echoes the core concern of the going-armed laws: conduct that terrifies others and breaches or risks breaching the peace. Bost's indictment is sufficient as a matter of law. And at this early stage, a court may dismiss only if the predicate conviction is insufficient as a matter of law to put the defendant into the category of persons who pose a risk of physical violence from misusing guns. We need not address what, if anything, could later take a defendant out of that category….

Judge Patty Schwartz wrote an opinion concurring in the judgment; so did Judge Jennifer Mascott. Judge Peter Phipps filed a dissenting opinion. All are worth reading, as is the rest of Judge Bibas's opinion.

Donovan J. Cocas, Laura S. Irwin, and Vivek Suri represent the government.

The post Second Amendment Rights Forfeited by Past Terroristic Threats Conviction appeared first on Reason Magazine.

America: Democracy or Republic?

2026-10-14T19:11:54Z

I'm interviewed about this roughly at about 3:15 to 6:30 of this episode of PBS's Civics Made Easy series. Unfortunately, they couldn't include all my discussion of the historical support for my view, so I thought I'd reprise below an earlier post of mine on the subject.

* * *

The U.S. Is Both a Republic and a Democracy

Don't just take it from me; take it from the Framers and other early American statesmen: "Democracy" has long included representative democracy as well as direct democracy, and "Republic" was used to refer to regimes that were not representative.

[1.] I often hear people argue (often quite militantly) that the United States is a republic, not a democracy. But that's a false dichotomy. A common definition of "republic" is, to quote the American Heritage Dictionary, "A political order in which the supreme power lies in a body of citizens who are entitled to vote for officers and representatives responsible to them"—we are that. A common definition of "democracy" is, "Government by the people, exercised either directly or through elected representatives"—we are that, too.

The United States is not a direct democracy, in the sense of a country in which laws (and other government decisions) are made predominantly by majority vote. Some lawmaking is done this way, on the state and local levels, but it's only a tiny fraction of all lawmaking. But we are a representative democracy, which is a form of democracy.

[2.] And the same two meanings of "democracy" (sometimes direct democracy, sometimes popular self-government more generally) existed at the founding of the republic as well. Some framing-era commentators made arguments that distinguished "democracy" and "republic"; see, for instance, the Federalist (No. 10), as well as other numbers of the Federalist papers. But even in that era, "representative democracy" was understood as a form of democracy, alongside "pure democracy": John Adams used the term "representative democracy" in 1794; so did Noah Webster in 1785; so did St. George Tucker in his 1803 edition of Blackstone; so did Thomas Jefferson in 1815. Tucker's Blackstone likewise uses "democracy" to describe a representative democracy, even when the qualifier "representative" is omitted.

Likewise, James Wilson, one of the main drafters of the Constitution and one of the first Supreme Court justices, defended the Constitution in 1787 by speaking of the three forms of government being the "monarchical, aristocratical, and democratical," and said that in a democracy the sovereign power is "inherent in the people, and is either exercised by themselves or by their representatives." He added,

Of what description is the Constitution before us? In its principles, it is purely democratical ….

Chief Justice John Marshall—who helped lead the fight in the 1788 Virginia Convention for ratifying the U.S. Constitution—likewise defended the Constitution in that convention by describing it as implementing "democracy" (as opposed to "despotism"), and without the need to even add the qualifier "representative":

I conceive that the object of the discussion now before us is whether democracy or despotism be most eligible. I am sure that those who framed the system submitted to our investigation, and those who now support it, intend the establishment and security of the former.

The supporters of the Constitution claim the title of being firm friends of the liberty and the rights of mankind. They say that they consider it as the best means of protecting liberty. We, sir, idolize democracy. Those who oppose it have bestowed eulogiums on monarchy. We prefer this system to any monarchy because we are convinced that it has a greater tendency to secure our liberty and promote our happiness.

We admire it because we think it a well-regulated democracy: it is recommended to the good people of this country: they are, through us, to declare whether it be such a plan of government as will establish and secure their freedom.

Sir William Blackstone, who was much read and admired by the framers, likewise used "democracy" to include republics: "Baron Montesquieu lays it down, that luxury is necessary in monarchies, as in France; but ruinous to democracies, as in Holland. With regard therefore to England, whose government is compounded of both species, it may still be a dubious question, how far private luxury is a public evil …." Holland was of course a republic, and England was compounded of monarchy and government by elected representatives; Blackstone was thus labeling such government by elected representatives as a form of "democrac[y]."

The same is so today. America is a democracy, in that it's not a monarchy or a dictatorship. (Some people claim it is too oligarchic, in which case they'd say America isn't democratic enough—but again they'd be distinguishing democracy from oligarchy.) America is not a direct democracy, but a representative democracy is a form of democracy.

[3.] And the Framers didn't just refer to representative government as democratic—they referred to direct democracy as a republic.

One way to get at this is to ask: What is the first nation that you think of that the Framers would likely have called a "Republic"? What is the most famous historical Republic, indeed the one that gave us the word "Republic"?

Why, the Roman Republic, of course, which The Federalist and many others discussed as a republic. And yet in the Roman Republic, there was no representative legislature.

The Senate (which wasn't elected or representative) did have considerable interpretive and advisory authority, and the elected praetors could interpret the law in important ways. But the laws themselves were made by direct vote of the citizens (or just by the plebeians), in the comitia centuriata, the comitia tributa or the concilium plebis. (If someone suggests that the Senate was Rome's elected representative legislature, you can point out that it was not elected, not representative, and not a legislature.)

Roman lawmaking was thus direct lawmaking, though with a voting system that heavily favored the rich, not representative lawmaking. The laws had to be proposed by a magistrate, such as a consul or a tribune of the plebs, so it wasn't precisely like an American initiative. But the laws didn't have to first be passed by some elected legislative body first (again, remember that there were no elective legislative bodies); in principle, they just had to be proposed by one elected magistrate—such as one of the 10 tribunes of the plebs—and enacted by popular vote in the assembly. You can think of it as something between the modern American referendum and the modern American initiative. But it was direct popular lawmaking, not representative lawmaking.

And the Framers routinely called Rome a republic—indeed, they labeled Athens a republic, even though Golden Age Athens famously involved direct democracy. Hamilton in Federalist No. 6 states that "Sparta, Athens, Rome, and Carthage were all republics." Hamilton in Federalist No. 34 specifically talked about the Roman legislative assemblies, yet called Rome a republic. Federalist No. 63, generally attributed to Madison, labeled Rome as an example of a "long-lived republic." (Profs. Akhil Amar and Rob Natelson have written more extensively on this.)

[4.] Today, "republican" does tend to refer more to representative systems, but "democratic" often refers to following the will of the people, whether through direct democracy or representative democracy—the precise meaning differs depending on the context. If you're asking whether to do something by direct ballot or by representative processes, you might ask whether we should be more democratic or more republican. If you're asking whether China would be better off giving more power to Chinese voters, you might ask whether it should be more democratic or less democratic, quite apart from whether you think the democracy should be direct or representative.

To be sure, in addition to being a representative democracy, the United States is also a constitutional democracy, in which courts restrain in some measure the democratic will. And the United States is therefore also a constitutional republic. Indeed, the United States might be labeled a constitutional federal representative democracy.

But where one word is used, with all the oversimplification that this necessary entails, "democracy" and "republic" both work. Indeed, since direct democracy—again, a government in which all or most laws are made by direct popular vote—would be impractical given the number and complexity of laws that pretty much any state or national government is expected to enact, it's unsurprising that the qualifier "representative" would often be omitted. Practically speaking, representative democracy is the only democracy that's around at any state or national level. (State and even national referenda are sometimes used, but only for a very small part of the state's or nation's lawmaking.)

There are lots of arguments that could be had about how our system of government should be structured: whether it should be more or less or differently democratic; whether it should include more or fewer aspects of direct democracy; whether it should have more requirements for supermajoritarian action (such as constitutional constraints, or the filibuster, or what have you); which levels of government (federal, state, or local) should have more or less power; and much more. But claiming that we're a republic and not a democracy (or a democracy and not a republic) strikes me as inconsistent both with modern usage and with how the leading lights of the Framing Era and early Republic generally treated the terms.

The post America: Democracy or Republic? appeared first on Reason Magazine.

A Trump Appointee Says the President Likely Violated the First Amendment by Banishing Disfavored Journalists

2026-10-14T18:20:45Z

Last month, a federal judge in Washington, D.C., issued a temporary restraining order (TRO) that required restoration of press passes for 78 journalists employed by three news outlets that President Donald Trump peremptorily banned from the White House on September 18. U.S. District Judge Timothy J. Kelly, a Trump appointee, extended that order on Tuesday, granting a preliminary injunction to CNN, MS NOW, and Politico.

While Kelly's TRO was based on CNN et al.'s claim that their sudden banishment violated the Fifth Amendment's guarantee of due process, his justification for the preliminary injunction also addresses their argument that revocation of their press passes violated the First Amendment by retaliating against them for constitutionally protected speech and discriminating against them based on viewpoint. Kelly concludes that the plaintiffs "are likely to succeed not only on their due process claim, but also on their two First Amendment claims."

A retaliation claim requires showing that the plaintiff engaged in conduct protected by the First Amendment, that the defendant's action was "sufficient to deter a person of ordinary firmness" from "speaking again," and that there was "a causal link between the exercise of a constitutional right and the adverse action." Although the government's lawyers did not dispute that the CNN et al.'s journalism is constitutionally protected, they argued that the plaintiffs had failed to satisfy the two other elements.

Kelly disagrees. The "hard passes" at issue in this case, he notes, give journalists unescorted access to the White House "press area," which includes "the briefing room, the press offices, and certain other locations in and around the White House that are open to correspondents." CNN et al. argued that "a hard pass is an important credential because it 'allows a reporter to react to fast-developing news' and gives them 'swift and easy access to key official sources.'" Since "the revocation of Plaintiffs' hard passes matters a lot as to how, whether, and to what extent they can do their jobs," Kelly says, "it is likely that the open-ended ban here would chill a reporter's work."

Trump's "own comments suggest that he intended the revocation of Plaintiffs'
hard passes to alter their reporting on him, bolstering the case that his action here is sufficient to deter a reporter of ordinary firmness from reporting in the same way she had before," Kelly adds. The day he announced the ban, Trump complained that CNN et al. "purposely write negative news" to "try and diminish the Republicans and a Republican administration." Although "the ban would go as far as you can," he added, "I'd love it" if "they could straighten themselves out."

The plaintiffs also have shown "there is likely a causal link between the exercise of their First Amendment rights and the revocation of their hard passes and exclusion from the White House press area," Kelly writes. "President Trump likely banned Plaintiffs from the White House because he believes that their reporting is generally inaccurate and biased against him."

Again, Trump's public comments amply support that conclusion. He explicitly said he was banning CNN, MS NOW, and Politico "as a result of their constant 'reporting' [of] FAKE NEWS," adding that journalists "shouldn't be able to constantly write or report FICTION and LIES when they're covering the President of the United States, the Trump Administration, or the United States of America." When asked whether his decision was motivated by a "particular reason" or "particular story," Trump replied: "No, no. It's really just cumulative stories over the last two years." The problem, he said, was "purposely negative stories."

In a Truth Social post three days later, Trump likewise condemned "Fake News" that he said was "corrupt, purposeful, pervasive, fully coordinated, and totally out of control." CNN et al.'s reporters are "Third Rate Clowns" who "purposefully distort, twist, and degrade with everything they write or publish," he added that evening. "Virtually every story about me, or anything having to do with me, is negative, wrong and, in many cases, DANGEROUS for our Country! No matter how GREAT my Achievements, they trivialize and demean."

Trump offered a similar defense of the ban in a September 28 interview with Time. "It's just bad story after bad story," and "most of them are fake," he complained. "I don't think anybody should be forced to bear fake news, constantly bad stories, because I've done great things." Although "I can name 100 great things I've done," he added, "I never get good press. I never get fair press."

The government's lawyers maintained that Trump or another official "would have reached the same decision" based on the "alternative ground" that CNN et al. had violated "minimum professional journalistic standards" by "publishing classified and national security information." Kelly was not impressed by that belated rationale, which no one mentioned until after the news outlets gave the government a copy of their lawsuit.

"There is no evidence in the record that President Trump made the decision to revoke
Plaintiffs' hard passes on national security grounds," Kelly writes. "Nor at any time has he directly stated that national security was the reason for his decision. When he announced the ban with his post on September 18, he did not mention national security. When he was asked later that day about the 'particular reason' for his action, he did not mention national security."

Trump did mention "national security" in Truth Social posts he wrote the day that CNN et al. filed their lawsuit. But "that expression appears to have been simply another way for him to describe Plaintiffs' alleged inaccuracies and unfairness in their reporting about topics like his achievements or electoral success," Kelly says. "All this suggests that 'national security' was merely a post-hoc justification for the decision, which greatly undermines" the claim that Trump would have "taken the same action in the absence of Plaintiffs' protected speech."

The government also cited letters to CNN, MS NOW, and Politico from the White House Press Office, which were sent four days after Trump banned them. Those letters averred that the three news outlets had violated "the standards of professionalism and decorum expected of those given access to the White House Complex" by "publishing sensitive or classified information" and "trafficking in verifiable falsehoods about national security and other issues."

The letters "hardly move the needle" on the question of why Trump banned CNN et al. from the White House, Kelly says. They "appear to conflate concerns about otherwise protected speech" with "national security concerns," he notes, and they do not even explicitly say that Trump "made the decision for national security reasons."

Each letter lists specific stories to which the White House objected. But Kelly notes that two reporters "had their hard passes renewed after publishing articles that Defendants cite in their September 22 letters as supporting the potential revocation of their hard passes."

The Trump administration tried to shore up its "national security" justification by submitting a declaration from Pentagon Press Secretary Kingsley Wilson. While Wilson explains "how the publication of classified and sensitive information can undermine national security," Kelly notes, she "says little to nothing about President Trump's decision to revoke Plaintiffs' hard passes" and does not say "anything about White House press practices or operations."

The defendants "have not really tried to support" the claim that CNN et al.'s reporting "damaged national security," Kelly says, noting that news stories based on "sensitive or classified information" are "commonplace, for better or worse." If Trump "would have banned Plaintiffs from the White House even in the absence of their protected speech," he suggests, "Defendants would not have had to scramble to make their case with unsigned letters and a declarant who does not even work there."

The evidence of retaliation also supports the claim that Trump discriminated against CNN et al. based on viewpoint, which is presumptively unconstitutional. The U.S. Court of Appeals for the D.C. Circuit, Kelly notes, has held that "the White House Press Area" qualifies as a "nonpublic forum," meaning journalists cannot be excluded because of the views they have expressed.

"It is likely that Plaintiffs were selected by President Trump for revocation of their access to the White House press area because he believes their coverage of him and his administration is generally inaccurate and biased," Kelly writes. "In other words, it was 'an effort to suppress the speaker's activity due to disagreement with the speaker's view,' rather than to vindicate any other purportedly 'compelling governmental interest,' including maintaining professional standards for journalists or protecting national security. Simply put, that is unlawful viewpoint discrimination."

Kelly's decision "is a stinging defeat for Trump's assault on the free press and a powerful vindication of the First Amendment," Caitlin Vogus, senior adviser for advocacy at the Freedom of the Press Foundation, said in an emailed press release. "As Kelly rightly recognized, presidents don't get to use their power to purge journalists because they don't like what they report."

The post A Trump Appointee Says the President Likely Violated the First Amendment by Banishing Disfavored Journalists appeared first on Reason Magazine.

Second Amendment Rights Not Forfeited by Past Drunk Driving Conviction

2026-10-14T20:07:28Z

From yesterday's Third Circuit en banc opinion in Williams v. Attorney General, written by Judge Paul Matey (and citing, among others, our own Will Baude) ((for another Third Circuit en banc case decided yesterday that reached the opposite result on different facts, see Second Amendment Rights Forfeited by Past Terroristic Threats Conviction):

The Second Amendment is a primary protection against tyranny, a strong bulwark securing American liberty, and an indispensable means of defending the public good. So courts testing restrictions on these "most sacred" and "necessary" rights must consider the history and tradition of firearm regulations with care and rigor. Edward Williams had two convictions for driving under the influence of alcohol in the early 2000s, the second of which (unbeknownst to him) triggered 18 U.S.C. § 922(g)(1), which purports to make it "unlawful" for persons convicted of "a crime punishable by imprisonment for a term exceeding one year" to possess firearms. Seeking to restore his rights, Williams filed for a declaratory judgment to confirm that § 922(g)(1), as applied to him, runs afoul of the Second Amendment.

The court ruled in Williams' favor; here are some excerpts from the long opinion:

We start [the Second Amendment inquiry] by asking the regulator whether its proposed liberty definition (or restriction, though every definition has some contracting element) is consistent with tradition. In assessing the response, we look for a custom of similar definitions.

A definition fitting within common and longstanding firearm regulation helps the regulator because long acceptance evidences noninfringement of the right. In contrast, it is likely impossible to show equivalence when the challenged restriction applies to people, places, and things that have gone unregulated for most of America's existence. Time is essential, and a recent innovation must be weighed against our "Anglo-American common-law tradition." An enduring custom since the founding is all but dispositive—one would be hard-pressed to argue that a state can prohibit the purchase of a flintlock musket. The same framework applies with respect to permissible regulations of people: if a regulation was common throughout our history, that is strong evidence that it does not infringe the right.

That is not the case here given the novelty of forever restricting all felons from possessing firearms for lawful purposes. The Federal Firearms Act of 1938 first made it "unlawful" for "any person who has been convicted of a crime of violence or is a fugutive [sic] from justice" to possess a firearm. {A "crime of violence" was defined in the Act to mean "murder, manslaughter, rape, mayhem, kidnaping, burglary, housebreaking; assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment for more than one year."}

In 1961, Congress expanded this prohibition, abandoning a focus on violence in favor of a technical bar on any person convicted of a "crime punishable by imprisonment for a term exceeding one year." By this point, "a crime punishable by imprisonment for more than one year" was the common approximation for "felony." The late entrance of a regulation tying felonies to gun possession disproves any longstanding customary contraction of the liberty codified in the Second Amendment.

Of course, common exclusions from society—which do not explicitly touch on arms-bearing—might sometimes, but not always, reveal that a regulation of an individual is consistent with the reasoning offered by the regulator. Take classic felonies like murder and rape, long punishable by death. Those statutes evidence a regulatory custom of indirect disarmament since a "sentence of death" left the person "already dead in law" and "out of its protection." So too when those same offenses resulted in life imprisonment, life servitude, or civil death. Punishments for crimes belonging to this unbroken custom were justly predicated on the protection of the community from prospective physical danger….

But the Justice Department's apparent attempt to broaden discrete crimes justly punished by death to include all felonies, much less all crimes punishable by more than one-year imprisonment, misses the point…. [T]he modern regulatory label of felony—a crime punishable by more than one year of imprisonment—is not even close to the proper "level of generality at which to define [the] historical practice." It captures conduct that would have commonly justified exclusion, and a host of less significant acts. So simply pointing to Williams's felony because it is labeled "felony" does not do.

We must move to a more granular comparison, assessing Williams's conduct against the Justice Department's proffered analogy…. Williams's predicate offense requires that the offender 1) "drive, operate or be in actual physical control of the movement of a vehicle" 2) "after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is 0.16% or higher" and 3) "ha[ve] one prior [DUI] offense." This offense plainly does not contain threatening or violent elements. So we must turn to the Government's proffered analogues to determine if they allow us to infer that the restriction imposed by Williams's continued disarmament is consistent with the right codified by the Second Amendment.

The Department of Justice analogizes this conduct to laws "disarming loyalists, underage individuals, [ ] vagrants," "common drunkards," and "habitual drunkards." But only those laws restricting drunkards bear any resemblance to Williams's conduct, so we focus our analysis there. The first two elements of Williams's offense are a variation of public intoxication laws, customarily defined as the vice of drunkenness made public. The third element sweeps in proscriptions against being a "common" or "habitual" drunkard, i.e., the analogy on which the Justice Department rests its case. Some of those laws allowed for the involuntary commitment of habitual drunkards to prisons or inebriate asylums. Others allowed courts to place habitual drunkards under guardianship.

The Justice Department acknowledges it may proscribe Williams's possession of firearms only if he "presently poses a physical danger if armed," but offers no evidence to establish this as the aim of the habitual drunkard laws. Indeed, it provides no analysis on the "why" of these laws. And that silence has since been supplemented by the Supreme Court's conclusion that these same laws did not seek "to protect the public from violence so much as to protect habitual drunkards from themselves and their families from financial devastation."

Nor does the Justice Department explain "how" the habitual drunkard laws ameliorated the threat of firearm misuse in a way relevant to the operation of § 922(g)(1). As Bruen clarifies, "if earlier generations addressed the societal problem, but did so through materially different means, that … could be evidence that a modern regulation is unconstitutional." That is the case here, and why the analogy to the permanent bar in § 922(g)(1) breaks down.

Most statutes capped the commitment of habitual drunkards to the state inebriate asylum, prison, or hard labor to a few months or years. Others provided for an indefinite period of incarceration, but had no indication that upon release individuals continued to forfeit their arms. Rather, once someone was "safe" to "go at large," they were restored to the status of a full rights-bearing citizen.

Finally, the Justice Department fails to show that Williams threatens to "misuse[ ] a gun while intoxicated," or that he "poses a danger to himself or others as a result" of alcohol abuse. In fact, much like those nineteenth-century drunkards released from custody and restored their rights, the record shows that Williams poses no present physical danger from the use of a firearm, or anything else.

He has done nothing violent, let alone dangerous, for over twenty years, and has held steady employment at the same job for over three decades. He "no longer consume[s] alcohol, save for the occasional glass of wine with dinner or champagne at home on New Year's Eve with [his] family," testimony the Justice Department has not challenged. He has submitted to an expert examination, finding he "has a normal personality, without psychopathology and without addiction or violent tendencies." And there is nothing to suggest Williams has ever wielded firearms in a manner dangerous to peaceable persons, despite a lifetime of gun ownership. Williams is presently a peaceable citizen, capable of bearing arms consistent with the design of the Second Amendment….

Our Republic, like those before it, has long understood "how base it is to pour down more liquor than one can carry," and that "drunkenness is nothing but a condition of insanity purposely assumed." Driving under that condition no doubt exacerbates the fault of the wrongdoer. Williams's criminal conviction and sentence is consistent with our tradition because acts incongruous with the virtue necessary for enjoying the rights of our political community have always justified punishment and the corresponding loss of civic privileges.

But virtuous life is a perpetual project, with redemption and reentry into the community a constant promise. And with that rehabilitation comes restoration of the civic privileges guaranteed to citizens by the Constitution, and the freedom to again exercise the natural right of armed defense against threats and tyranny. For the reasons above, we will affirm the District Court's judgment granting Williams summary judgment.

There are other interesting matters in Chief Judge Michael Chagares's partial concurrence and partial dissent, in Judge Arianna Freeman's partial concurrence and partial dissent, in Judge Patty Schwartz's dissent, and in parts of the majority opinion I ddin't quote above. (The opinions also discuss the important and interesting question of whether and when the newly revivified statutory mechanism for getting relief from firearms disabilities, 18 U.S.C. § 925(c), should preclude plaintiffs from bringing direct challenges to the disability.) Here's an excerpt from the Freeman opinion:

I part ways from the majority opinion when it says a prior conviction is disarming on its face only if it involved violence or threats. To be sure, convictions that require violence or threats are disarming; … that is consistent with our Nation's historical tradition of firearm regulation. But so are other convictions that show a person poses a credible threat to the physical safety of others.

In United States v. Rahimi, the Supreme Court upheld a different federal firearm disability because it "presume[d] … that the Second Amendment right may only be burdened once a defendant has been found to pose a credible threat to the physical safety of others." And a prior conviction can encompass such a finding even if the conviction did not require violence or threats per se.

Such is the case here. Williams was convicted of "driv[ing], operat[ing] or be[ing] in actual physical control of the movement of a vehicle" after having consumed enough alcohol to put him at "[h]ighest rate of alcohol" proscribed by Pennsylvania DUI law. And he was convicted of doing so after he previously sustained a DUI conviction.

Williams's DUI conviction establishes that he controlled a vehicle while highly intoxicated, notwithstanding the obvious risks that his conduct could severely injure or kill others. In other words, he engaged in the dangerous use of "what can be a deadly weapon: a vehicle."

Because Williams's conviction shows that he "pose[d] a credible threat to the physical safety of others," the Second Amendment does not bar Williams's disarmament, at least for some period of time.

Williams's conviction also satisfies the narrower standard our Court announces today. The majority opinion asks whether the conduct at issue presents a risk of physical danger from the misuse of firearms. But we have acknowledged that a prior conviction can evince a risk of firearm misuse even if the conviction did not involve firearms. And Williams's dangerous misuse of one potentially deadly weapon (a motor vehicle) evinces a risk that he would dangerously misuse another potentially deadly weapon: a firearm….

Joshua Prince (Prince Law Offices, P.C.) and Dillon Harris (Civil Rights Defense Firm) represent Williams.

The post Second Amendment Rights Not Forfeited by Past Drunk Driving Conviction appeared first on Reason Magazine.

Posting About This 'Robot Sexual Assault' in Germany Could Be a Crime

2026-10-14T16:28:20Z

We've reached the point in techno-dystopia where autonomous humanoid robots are out assaulting girls in the street—or so some coverage of a recent incident in Cologne, Germany, might have you believe. But dig into what really happened, and it's human actions that appear more worrying.

For dystopian police-state flavor, we've got Cologne cops warning that simply commenting about this on Facebook in an unapproved way could be criminal. Without specifying exactly what kinds of comments are off limits or what law might be broken, the North Rhine-Westphalia Police of Cologne (Polizei NRW Köln in German) warned that social media comments about what happened could cross the line and potentially be a criminal offense.

Then there are the humans who were operating the robot that made lewd gestures at passersby and stands accused of grabbing the butt of a 16-year-old girl on a city street in Cologne around midnight. From the looks of things, the humans—not some artificial intelligence system—were in control.

This doesn't appear to be a case of an AI humanoid robot going rogue and getting pervy, but some teenagers engaging in a performance or prank that may have gone too far.

I say may here because it's not entirely clear what happened. There is video footage showing the robot—dressed in gold chains and a fake mustache like some sort of 1980s sleazeball—thrusting in a sexual manner and making jerking-off gestures in front of people gathered on city sidewalks. (Some of them appear annoyed or alarmed; some laugh.) But none of the videos that I could find clearly show any groping. We do see the robot bumping into people, but it's not entirely apparent what was touched or how purposeful these collisions were.

Maybe the alleged "sexual assault"—which is technically the correct term for a nonconsensual butt grab, I guess, but still seems a bit too strong—was totally intentional. Or maybe this is a case of clumsily controlled technology brushing against someone in a way that felt violating but was nonetheless an accident.

What appears to be beyond a doubt is that the robot was being made to engage in lewd gestures, which were played for laughs by teenagers (one 16 and one 19, according to police) who were filming these encounters and posting them to social media.

Is it a crime to make your mustachioed robot thrust its pelvis at passersby?

I don't know enough about German sexual harassment law to say whether this qualifies. In any event, Cologne police have not announced any charges yet; they've only stated that they're investigating on suspicion of sexual harassment and that they have confiscated the robot and the phones of the two boys suspected of operating it.

We probably don't want sleazebots just going around making obscene gestures in public, whether of their own volition or controlled by humans. But, in the U.S. at least, sexual harassment requires some things beyond just making a crude gesture. Laws vary by state, and by the context in which the alleged harassment takes place, but it generally has to be pervasive, severe, or carried out with a specific intent. I don't think this robot's actions would qualify (though there are perhaps other charges that could be brought, involving disturbing the peace or something like that).

But I wish people would chill out with the breathless coverage that attempts to make this into some sort of super grave and alarming incident. If it turns out these two teens did deliberately instruct their robot to touch a girl's butt, that's certainly not OK, and should be dealt with in whatever manner we might deem just if a teen did so directly. But we're not looking at rogue robots attacking girls on the street, or at teenagers cruelly directing their tech toy to seriously sexually assault someone while they filmed it. At worst, we're looking at a livestreamer stunt that was in poor taste, not the imminent coming of robot rape squads.

And setting aside the alleged violation of bodily autonomy—which may or may not have been intentional—the other antics of this robot are kind of funny? Can I say that? I don't think we want to create norms where it's OK to take a robot dressed like a movie pimp out on the streets and have him make sexual gestures at people, but…I laughed. Don't tell the German police.

In The News

A woman named Carli Heller was arrested for telling Anthropic's Claude that she was going to shoot up the sheriff's office in Lee County, Florida. Anthropic notified the FBI, which notified local authorities, and she was arrested for making a threat of mass shooting or terrorism, a felony.

"Heller's is at least the third case in the U.S. since August in which messages typed to an Anthropic chatbot ended up with the police, following incidents in San Antonio and San Francisco," reports Devin Pavlou at Straight Arrow News:

The cases raise questions about how private chatbot conversations are, when companies can hand them to police without a warrant, and whether words typed to a machine can be a crime. Eugene Volokh, a First Amendment scholar at the Hoover Institution at Stanford University, told Straight Arrow he doubts they can in this case.…

In the past, Florida courts have required proof that a person meant to threaten or knew the message would be viewed as a threat, according to Volokh, who has taught law for 30 years. He said a jury is unlikely to find that beyond a reasonable doubt.

"I doubt that this is a punishable threat, unless there is evidence that the woman subjectively realized at the time that the message would be communicated to a human being who would perceive it as a threat," Volokh said.

Heller's lawyer, Scott Moore, "said he plans to challenge whether a chatbot message can be a written threat under Florida law," adds Pavlou.

On Substack

Tara Burns has a good/infuriating roundup of recent "sex trafficking" busts that involve no trafficking charges and in which police just charge people with prostitution and seize their cash. Here's just one of multiple examples:

On October 6, Virginia Beach police announced the results of a months-long human trafficking investigation that culminated in September 24 raids on four massage businesses and a residence. Police said their surveillance showed several women living together and traveling between their home and massage businesses. Apparently, when Asian women work and live together it warrants the attention of the ICE led Hampton Roads Human Trafficking Task Force.

Three apparent sex workers (Xiaochung Peng, Xiaoqin Wu, and Ping Zhang) were arrested on charges involving maintaining a bawdy place, aiding prostitution, and using a vehicle in the commission of a crime. Police seized $55,085, four vehicles, phones, computers, and a security DVR.

No trafficking charges were announced, and police did not report identifying a trafficking victim.

Follow the Money: This investigation involved at least seven law enforcement entities, including two SWAT teams, federal investigators, and a federally funded, ICE led regional human trafficking task force.

Burns also points out that new anti-trafficking grant money from the Department of Justice's Office for Victims of Crime gives priority treatment to programs that support immigration enforcement.

"To help meet its mission, OJP may give priority consideration to applications proposing … projects designed to advance" five particular goals, including "directly supporting law enforcement operations (including immigration law enforcement operations)," it says.

Read This Thread

Does algorithmic pricing for apartment rentals cause people to pay higher rent? It's how this technology is used that determines whether outcomes are fair and beneficial to consumers, or potentially harmful, as Eliza Terziev and I write @ReasonFdn https://t.co/ai1p7J6X5z

— Max Gulker (@maxg_econ) October 12, 2026

More Sex & Tech News

• News you can use, if you are someone with a robot kink: Meta's AI agent, Muse, can sext. "While pornographic interactions may not be what users expect from Muse's cuddly mascot, Meta says that X-rated conversations are allowed and don't go against its guidelines," reports Wired.

• The latest COYOTE Rhode Island podcast takes a deep look at the disconnect between rhetoric surrounding anti-trafficking policy and how that policy works in practice—how "state surveillance, carceral feminism, and these policies that just loudly claim to save people are often resulting in measurable catastrophic harm."

• "It wasn't all that long ago that if The New York Post published photographs of an aspiring congressman wearing a leather collar and a chain-link leash, his campaign would have immediately been over," writes Lux Alptraum in The New York Times. "Yet that doesn't seem to be the case for Chris Gallant, the gay, gun-toting former Black Hawk pilot who's running for Congress on eastern Long Island. He still may not win, but these photos alone haven't sunk his chances."

• Sarah Hepola's The Only Thing There Is to Want is "a super fun book line by line," writes Phoebe Maltz Bovy, "but here's one of the best: 'Just what every young man wants in bed: Mrs. Robinson, crying.'"

• When you think of countries that have thrived in the tech sector, Finland might not be the first that comes to mind. But for a while, the Finnish company Nokia dominated the cellphone market. "What happened to this brand, the pride of Finnish enterprise and perhaps the defining commercial contribution of a small, isolated, but determined nation?" Arena mag asks (and answers).

• Derek Thompson interviews Daniel Cox about this new book, Generation Uncoupled. "The book argues that problems with dating and romantic partnership are downstream from the decades-long deterioration of American social and civic life," says Cox. "To the extent that we're experiencing a romantic recession, it is a symptom of this broader problem of social disconnection."

The post Posting About This 'Robot Sexual Assault' in Germany Could Be a Crime appeared first on Reason Magazine.

Trump's Plan To Buy Russian Diesel Would Violate Federal Law

2026-10-14T16:00:19Z

President Donald Trump says he has struck a deal with Russian President Vladimir Putin to import large amounts of diesel fuel into the United States—apparently hoping to lower fuel prices in the weeks before the midterm elections.

The exact terms of that agreement remain somewhat unclear. The White House has not said when the purchases will be made, what prices will be paid, or who will be paying (private companies or taxpayers), though the Treasury announced that it would be issuing a "temporary general license to allow the supply of Russian diesel to the global market." Reporting by The New York Times suggests that investors with ties to the administration are most likely to profit. Because diesel prices are determined by a global market, it's also far from certain that the Russian gas would make much of a dent in American prices.

However, this much is clear: If Trump follows through with this "deal," he will have violated two federal laws recently passed by Congress—one of which he signed just weeks ago.

The more significant of those two laws is the Ending Importation of Russian Oil Act, which passed the House with a 413–9 vote and was unanimously approved by the Senate. President Joe Biden signed that bill into law on April 8, 2022. The law is an outright ban on Russian energy products, including diesel fuel.

The law also lays out the process for lifting the ban on imports. The president must tell Congress that Russia has "reached an agreement to withdraw Russian forces and cease military hostilities in Ukraine" and has recognized "the right of the Ukrainian people to independently and freely choose their own government."

There is also a clear timeline for lifting the ban. Any termination of the ban requires a 90-day waiting period, during which time Congress has the opportunity to block the change.

Obviously, Russia has not withdrawn from Ukraine. Even if it had, the White House has not gone through the necessary process to notify Congress, nor waited the necessary 90 days.

The law does not allow a president to ignore it if fuel prices are high and an election is approaching. It does not allow a president to ignore it if he starts an illegal war in another part of the world that causes fuel prices to spike.

Trump's attempt to disregard that law has drawn a bipartisan rebuke from members of Congress. A group of seven senators—three Democrats and four Republicans—issued a joint statement this week saying that Trump's deal "runs directly counter to" the 2022 law.

Sen. Thom Tillis (R–N.C.), one of the senators who joined that statement, said on Sunday that there is "a legitimate case for saying the president's not following the law."

The second law at play is the Lindsey O. Graham Sanctioning Russia and Iran Act, named for the late senator and passed earlier this year. Among other things, it authorizes the president to levy tariffs of up to 100 percent against countries that buy Russian crude oil and natural gas. The intent is clear: to prevent Russia from being able to finance its war against Ukraine by selling energy commodities onto the global market. Trump signed it into law last month.

Lawmakers on both sides of the aisle have also pointed to that law in the days since Trump announced his deal to buy Russian diesel.

"Now is the time to use those sanctions to squeeze Putin's war machine, not reward a dictator by putting more money in his hands while he continues targeting and killing Ukrainian civilians," Rep. Don Bacon (R–Neb.) posted on X this week. Rep. Steny Hoyer (D–Md.) said it was "outrageous" for Trump to be buying energy from Russia after signing a bill that could be used to punish other countries for doing the same.

The White House could argue that, in this case, Trump is merely violating the spirit of the law rather than the letter of it. Even so, this is blatantly hypocritical.

The hypocrisy runs deep. The Trump administration has spent much of its second term trying to restrict trade and downplay the advice of economists who have warned that doing so would raise prices. Now, Trump is once again seeking imports as a means to ease high prices—as he has done with beef and other products. Perhaps the White House should apply this general principle more broadly, and in circumstances where doing so would not violate federal laws.

Some of the president's allies are now trying to downplay these violations of federal law. Conservative pundit Mollie Hemingway says Trump is merely trying to "put the American people first" by addressing rising gas prices.

Sorry, but no. The president is not allowed to disregard federal laws because he believes it will lower gas prices in swing states.

You can, of course, criticize those laws for being misguided. Trade is generally good, and erecting barriers to the flow of goods tends to be costly. Trump could ask Congress to repeal these laws. He cannot deliberately ignore them.

If the "deal" with Russia comes to fruition, it will further erode what little power Congress retains within America's democratic system. If a president is not bound by the laws Congress has passed, then the legislature might as well not exist at all.

The post Trump's Plan To Buy Russian Diesel Would Violate Federal Law appeared first on Reason Magazine.

New on SCOTUSBlog: "Witnessing a reorientation of the First and Second Amendments on the Roberts court"

2026-10-14T16:00:08Z

SCOTUSBlog has published the latest essay from me and Randy Barnett on the recent changes in constitutional law. This entry focuses on the Religion Clauses and the Second Amendment. It begins:

Twenty years ago, the Supreme Court strictly enforced the separation of church and state, deferentially reviewed restrictions on free exercise rights, and played no role in enforcing the Second Amendment. This was the state of the law when one of us began law school in the fall of 2006.

What a difference two decades has made for the First and Second Amendments.

The next installment in this series considers the changes to Congress' enumerated powers, the president's executive powers, and the separation of powers between those branches.

The post New on SCOTUSBlog: "Witnessing a reorientation of the First and Second Amendments on the Roberts court" appeared first on Reason Magazine.

How Local Governments Turn Minor Violations Into Financial Ruin

2026-10-14T15:47:58Z

Imagine getting a bill from your local government for $900,000 because they see a greenhouse on your property and just assume you're growing marijuana without a permit.

Imagine government demanding $400,000 because you didn't know to fill out a single-page form.

Or you get slapped with a $100,000 fine for parking your car on your own property.

It sounds absurd, but as my newest video shows, that's really happening.

How can that be? Doesn't America's Constitution say government may not impose "excessive fines"?

It happens because some bureaucrats, savoring their power, act like tyrants.

At least now there is hope for a remedy. One of these excessive fine cases has reached the Supreme Court.

Ken Jouppi worked as a pilot in Alaska for 30 years, until one day, state troopers stopped his plane before takeoff.

"I didn't think we had anything to hide," he says. "They searched the airplane, opened up this lady's boxes of groceries and found beer."

Transporting beer. That was his crime.

"Isn't beer legal in America?" I ask Jouppi's lawyer, Mike Greenberg.

"In most places," he replies. But some towns in Alaska ban beer.

Jouppi was convicted of bootlegging.

Every pilot must know which town has what rule, and search everybody?

"They think pilots should search people's luggage," says Jouppi. "It was such a terrible thing to do to another individual, invade their privacy, and assault their dignity….I just didn't feel right about doing that."

Alaskan officials say the beer was visible, so Jouppi should have known about it. They jailed him for three days and seized his plane.

"That airplane was my primary source of income," says Jouppi. "Without it, I didn't have a business anymore."

I assumed such excessive punishment would be dismissed quickly by a court. But it wasn't.

"Jouppi has been fighting to keep his plane for 14 years," says Greenberg. "The plane is still sitting on a tarmac….It's a ludicrous situation where the state has every interest in going after valuable assets rather than actually fighting supposed harms of alcohol."

Greenberg's law firm, the Institute for Justice, took Jouppi's case, and now the U.S. Supreme Court will hear it.

I hope he wins. It's just wrong when governments destroy lives for small mistakes.

They're also doing that to Tuncay Saydam, a retired professor.

The IRS demands he pay $400,000 because he didn't know to fill out a one-page form about an old bank account in his native Turkey.

"The fines," says Saydam, "will destroy my life….We have never been rich."

His unpaid tax is less than $30,000. But the IRS demands he pay them more than $400,000. A California court upheld that penalty. Northern Californian Chief Magistrate Judge Donna Ryu wrote, "Government suffered a significant tax loss."

Finally, bureaucrats in Humboldt County, California, took aerial photos of people's property to search for unlicensed marijuana farms.

When they saw greenhouses, they fined property owners.

Blu Graham was fined $900,000, "$30,000 a day, when all I've ever done is grow vegetables in my greenhouses."

"There actually was no marijuana on the property!" says Greenberg. "They were just guessing that if you built a greenhouse, this must be connected to marijuana."

Finally, a lawsuit got the county to promise to end its ruinous fine system.

But it took four years.

Why do governments fight to keep outrageous fines that punish largely innocent people?

"Unlike other forms of punishment," says Greenberg, "fines make the government money. The prosecutor's office, state troopers, they get to keep the proceeds. It's an abusive system because they have every incentive to continue to prosecute."

I invited the heavy-fining judges and government lawyers to appear in my video to explain these fines. None would agree to talk about it.

Bureaucrats always want more money. It's a reason the Constitution prohibits excessive fines.

I trust that the Supreme Court will put a stop to these abuses.

The post How Local Governments Turn Minor Violations Into Financial Ruin appeared first on Reason Magazine.

Mark Cuban: 'I'd Get Rid of All Political Parties'

2026-10-14T15:00:57Z

Today's guest is Mark Cuban, the billionaire entrepreneur and former Shark Tank star who is now on a mission to reform the American healthcare system. Through his companies, Cost Plus Drugs and Cost Plus Wellness, Cuban is trying to make healthcare more affordable by cutting out middlemen and making pricing more transparent. But he argues that fixing America's healthcare system will require breaking up massive conglomerates that wield enormous power over pricing and competition, often at the expense of patients.

Nick Gillespie talks with Cuban about why he supports bipartisan legislation from Elizabeth Warren and Josh Hawley to break up Big Medicine. Cuban explains how artificial intelligence can expose hidden costs in health insurance contracts and transform the way doctors diagnose and treat patients. They also discuss Cuban's support for Texas Democrat James Talarico and his belief that political parties have outlived their usefulness. The billionaire entrepreneur makes the case for restricting social media algorithms for children under 16 and discusses why he isn't particularly worried about socialism's growing popularity among young people. Finally, Cuban reflects on how Ayn Rand's The Fountainhead shaped his understanding of capitalism and why he believes helping others is part of being a successful entrepreneur.

0:00—James Talarico and the Break Up Big Medicine Act

4:13—Healthcare conglomerates and "contractual terrorism"

15:39—Drug pricing and pharmacy benefit managers

26:58—How AI will transform healthcare

33:04—The Trump administration's policy reforms

34:22—How does Cost Plus Drugs work?

43:08—The backlash against billionaires

47:52—Political parties and Texas governance

51:50—The rise of support for socialism among Gen Z

55:11—Would Cuban back a social media ban for minors?

55:50—The influence of Ayn Rand

Producer: Paul Alexander

Audio Engineer: Ian Keyser

Transcript

This is an AI-generated transcript. Check all quotes against the audio for accuracy.

Nick Gillespie: This is The Reason Interview With Nick Gillespie. Thanks for listening, watching, however you're consuming this. My guest today is Mark Cuban, the former majority owner of the Mavericks, now a minority owner, if memory serves. And that's partly because you're going all in on Cost Plus Drugs, a company and a business model about prescription drugs and, more broadly, wellness and health care. We're going to talk about that in a little bit, but right now, you have recently in a very tight Texas Senate race, you've endorsed James Talarico, or you're speaking with him, partly because he has talked about coming up with a health care plan that you think will reduce health care costs. Can you talk a little about the Talarico plan and why that was so important for you in terms of signing on to appear with him?

Mark Cuban: I mean, really, what we agreed on is that we need to pass Elizabeth Warren's and Josh Hawley's Break Up Big Medicine Bill. And that was the fundamental reason why I supported him. I mean, there are other reasons as well, but I think that as long as we have these huge conglomerates that dominate the economics and provision of health care, the system's not ever gonna work, and we're gonna get what we have right now.

So, identify what is the main problem with health care right now? Is it just that everything costs too much, and that's because of the big conglomerates? Or is it that the quality of care is no good, the rate of innovation is dying?

What's the main problem with health care?

It's the economic side. I mean, the U.S. has the best health care in the world. It's not even close. The problem is, it's not accessible to everybody, but it's not affordable to most. And that is underpinned by how the biggest conglomerates in the country, that do hundreds of billions of dollars each in revenue each year, dominate the economics of health care.

So how is the Break Up Big Medicine Act or bill how is that gonna actually reduce costs? Because I know in the past you've talked about being a small-l libertarian. You're obviously very much in favor of capitalism. You don't hate billionaires. You don't like wealth taxes. You like free markets. How is the Break Up Big Medicine Act gonna work? Because one of the reasons we're where we are now is because of all of the past government intrusions into the market or structuring of the market. I mean—

No, that's wrong…OK, let's just…

I mean, the government already spends about 50 cents of every dollar in the healthcare ecosystem. So it's not like this is a market, right?

Well, it's not a market. You're correct though. Right? But in order to have an efficient market, you have to have price discovery. In order to have price discovery, you can't have gag clauses in every single contract that every single health care—you can't have gag clauses in every single health care benefits contract that's signed. Period. End of story.

And who commands those gag clauses? The big companies that need to be broken up. And it's not an issue of what the government is doing. It's specifically an issue of the choices that are being made by the CEOs and C-suites of those companies.

You look at the largest vertically integrated health care companies: 3,000-plus subsidiaries, $150 billion in intercompany transfers. That's more than the GDP of 13 states. And so they literally dominate the economics. And that's just one company.

If you go to the top three, the point of this is, the leverage is not with the federal government in this particular case. The definitions, the relationships, the pricing, the rules are being set by these big conglomerates. And if you were to break them up, it would change.

Ok, so we can work through a more specific example. What's the worst conglomerate, then, or the biggest healthcare—vertically integrated provider? And how are they bilking everybody—customers, doctors, hospitals, unless they own the hospital system? Who's the worst, and how is that working?

UnitedHealthcare. They're the ones that have thousands of subsidiaries, $150 billion, $160 billion in intercompany transfers. They either contract or employ more than 10 percent of the doctors in this country.

Out of those 3,000 subsidiaries, they own pharmacy benefit managers, they own health care providers, they own what they call ASOs, third-party administrators that administrate care. They own Medicare, Medicaid, MCOs that manage Medicaid for states. There's just—I can't even begin to start to list all the different things that they control.

So one of the ideas behind a vertically integrated company is that they— if you are sourcing your own cost inputs, you can do things more efficiently, and you pass that on to the customers. So McDonald's grows its own potatoes because—

Sure, I know I get it. I know the potential benefit. Yeah.

Oh, no, no. I know that. So explain—

It's also a choice. So, here's the choice. You can pass it on and say, "Look, we're going to be more efficient and pass on the benefit of our efficiency." And the easy way to understand whether that's occurring—there are two easy ways.

One, to ask anybody who uses their services or any of their peers, and just ask them: Have you felt like you've been the beneficiary of their scale?

Based on the polls going around for these midterms, right, the number one issue is affordability, and the number one underpinning of that affordability is the cost of health care.

Number two, being a healthcare geek, I will read the transcripts of their quarterly earnings conference calls. The one thing I have yet to ever hear them say over the past four or five years is that, "Based on this investment, based on this new technology, based on this acquisition, we are going to be able to reduce the cost of care or services to patients that receive that care." Not one.

So patients just don't show up in the way you're talking about it? It's like…

Not at all.

We've streamlined like our costs—

Right. Well, not even necessarily streamline our costs, but what does show up is: "We are going to be able to increase our earnings along with our previous trend. We are going to be able to increase our margins and our revenue for specialty medications," right? There's just a long list of things that they are pushing.

And the bottom line of this—and every capitalist, every CEO has to decide who they're responsible to. Typically, in a public company, which all of these are, they're responsible to shareholders. And that's not necessarily a bad thing if they're aligned also with their customers, their ultimate customers. It may not be the direct customer, but the ultimate customer, which is a patient.

They are not aligned. Not only are they not aligned with the patients, they're not aligned with any other stakeholders.

When you talk to corporations, big or small, a solo entrepreneur, 100 employees, 100,000 employees, and you say, "How are your health care costs doing these days? Are they going down? Are they going up?" And obviously, the response is they're going up.

And you talk to their members, their employees, their families: Are your deductibles and premiums going up or down?

And so the proof is in the pudding that they're aligned with their shareholders, but they are not aligned with their ultimate customers. And that creates a disconnect. And those are the decisions that they've made. In one case, with a tragic outcome, unfortunately.

And so going back to the Break Up Big Medicine Bill and the outcome, when you have somebody who is that big and has that much control and that much regulatory capture, it's AT&T time. It's Standard Oil time, again.

Yeah, I mean, but then it gets complicated. And I don't want to spend too much time on this, but in the sense that when Standard Oil got broken up, they were actually charging the least for their products in their history.

This should be easier then, right? Because now these guys are charging the most.

No, no. Well, I'm saying it gets complicated because you mentioned regulatory capture, and this is part of the problem. Like, if UHC, if UnitedHealthcare is so bad, why do companies keep using them as a benefit?

I'm so glad you asked that. Why do they keep on buying from them, right? Why do they keep on doing business with them? Right?

Right.

So I spend most of my days going to CEOs and explaining to them how they're getting ripped off and how they are getting worse outcomes by dealing with these big conglomerates. Almost all my days. And what I can tell you—

I'm sorry to interrupt, just real quick, because just to get you on the record on this. You're not against bigness per se…

No!

Right? Big conglomerates—because people like Elizabeth Warren often are like, if it's a big company, break it up, right?

Not the issue to me at all.

If I were running that company, I'd be like, "We are so efficient. We are so good at what we do. We use AI and technology better than anybody, so good that we're pushing prices down." And because of that, we'll make more money.

And you know what? Even if we don't make more money, we'll make enough to keep our shareholders happy. But you know what? I'd rather be a great citizen of this amazing country of ours, and if that means better health care at less cost, and our P/E ratio needs to be a little higher to get that stock price where we want it, I'm good with that.

That's how I would—so I have no problem with scale.

The problem I have, like when you talk to people who work for these companies, when they say, "Yeah, I work for whoever," the first thing they say to me is, "I'm sorry. I need the job."

It's not like they're proud. It's not like, "Hey, we're doing such amazing things." And so that's the underpinning of all of this.

So go back to your point on why do companies hire them, right?

I spend so much of my time—literally before this call, I dealt with a group of people who were HR representatives and buyers of these services. And I said, "Do you like these companies that you're dealing with?"

They refer to the big insurance companies as the BUCAs, right? Blue Cross Blue Shield, United, Cigna, etc.

And they're like, "No, we don't like dealing with them."

I'm like, "Why do you?"

"Well, because our CEO just doesn't understand health care costs and health care benefits. And they may know somebody or do business with them."

Like, I've literally talked to humongous banks who have said that we're not going to switch because we'll lose their deposits and banking relationships.

Ok, that happens. So let's put them out.

So now I was talking to this group today, and I started giving examples of places where those big companies were taking advantage of them. And I went directly to contracts because most of the contracts are comparable.

So I call them contractual terrorism.

The city of Dallas, we'll use them as an example. Their pharmacy benefit manager contract: 1,300 pages. There's no human or humans or enough coffee on the planet.

I don't even know if the AIs are capable of scanning that.

Well, the AIs are capable of doing it, right? You kind of got ahead of me there, because before they were able to push things through.

So, like, for pharmacy benefits, there are these things called rebates, where the manufacturers give money back to the pharmacy benefit managers, and they have the choice of how to distribute it from there depending on the contracts, right?

And one of the biggest sources of rebates is something called specialty drugs. They're supposed to be more complicated drugs. Just as often, they're not, but they call them specialty.

But in these contracts, and I literally asked the question of this group who has a good understanding of their contract, I said, "How many of you have a clause in your contract that says specialty rebates, specialty medications either get a flat rebate or no rebate?"

They all raised their hands.

And then I said, "In that contract, doesn't it also say that that PBM owned by that big BUCA—"

That's the pharmacy benefit—

Benefit manager, right, gets to determine what is a specialty drug or not. So in some cases, it could be generic, it could be a little pill, and they call it a specialty drug so that they get to arbitrage the rebate or to retain the rebates instead of sharing them.

So going back to the question of why would a company do this, and it's even worse on the medical side. That's the pharmacy side.

There's no company that, if you work for a company that's self-insured, and God forbid you need to get some major surgery, and so they send you a bill, not even specifically to you, but for the whole company every week or every month, right? And the company just writes the check for the bill, and they may or may not even get examples of the claims so they can reconcile them to what was actually charged or paid to the hospital.

So you have these huge companies that have no way of reconciling whether or not what they were charged is what was paid to the hospital or doctor or provider.

So I was like, why do you do this? Why are you letting yourselves be taken advantage of? And it's because, "Well, it's just happened, it's changed so rapidly, and the prices have gone up so rapidly. We're still in the contract. We're still doing it."

And I'm like, so let me give you the way to resolve this. And this goes back to AI.

So what I've done, and I've done it for my companies, I've helped other companies do the same, I've helped states do the same. Now, with AI where it is, and it's only recently capable of doing this, you can take a 1,300-page contract. You can take a 600-page contract, and I tell them, take the PDF file of all of your health benefits contracts and put them into your favorite large language model and just use this prompt: "Where are they ripping us off?"

And within five minutes, you'll see, boom, boom, boom, boom, boom. Because it's contractual terrorism. They only have to squeeze through a couple of things that the lawyers don't see, and that changes the whole contract, and everything economically references the contract.

So part of, I mean, in any kind of market that's not working well, price signals are arbitrary or buried. There's a lack of transparency. People don't know what they're paying for, what all of the benefits are, how much they cost, and things like that.

There's also, and I know you've talked and written about this, where it's exacerbated by the fact that the company, I mean, a health benefit, it's not what your main company is doing. They're offering it for a variety of reasons. And this goes back to World War II or wage and price controls and things like that.

You know, whatever my company…I don't even know what my—Reason Foundation, the nonprofit that publishes this podcast, I don't know what they pay monthly for my premium. And I barely know what my premium is.

And do you know what your deductible is? Do you know?

Yes, I do indeed. And I had a kid last year, so I'm always hap—

Let me ask you a question, over $1,500 a year?

Yes, for the overall, it's like $6,000.

OK, so $6,000. Have you ever been prescribed, or has anybody in your family been prescribed, a brand medication?

No, I gave up on brand medications a while ago. I always go for the—but what's your point?

No, my point is that brand medications without generics, right?

Right. Yeah, yeah.

So let's just take a drug like Xarelto. The list price of Xarelto, sold by J&J, is $600. The way the system is structured by these big BUCAs and their pharmacy benefit managers is such that during your deductible phase, you and pretty much everybody else, unless your company negotiated something different, have to pay the full retail list price for that medication.

That's insane. Now the question becomes, why does that happen?

And I'm going to explain to you, and this is way inside baseball, how pricing for brand medications is done in the United States of America.

We'll, excuse me, we'll take a drug like Xarelto because it's easy to understand and use. $600 list price. When J&J sells that to one of the three big wholesalers—there's three of them that control 95 percent of the pharmaceutical transactions—when they sell to that wholesaler, you know what they sell it to them for? List price, $600.

Sounds crazy. If they came on Shark Tank, Kevin would probably say, "Take them out behind the barn and shoot them," because it makes no sense that multihundred-billion-dollar companies don't negotiate a discount.

But they're lucky in that the brands will give them 5 percent back if they prompt pay and give them some data.

So now let's just say 5 percent from a $600 drug means the net cost to the wholesaler is $570. That sets the floor for what they can charge pharmacies because they're not going to sell it for less than they pay.

Now what happens next, then, is now a pharmacy has paid $570 for that drug. When you walk in, or any of your family members walk in, or anybody who works for the foundation walks in who has a comparable deductible, the pharmacy can't sell it to you for less than $570 because that's the charge.

Now that's ridiculous in and of itself because you know how much J&J actually nets, give or take, for that medication? It's not $570. It's about $300.

Their yield, their net revenue is about half of the list price. And so where does that delta, the $570 minus $300, where does that go? That goes to the pharmacy benefit manager.

Now, if this was a real market where they didn't have control because of their control of formularies and lives covered, then J&J and all the other brands in the same situation would then sell to the wholesaler at $310. Remember, their net yield was $300, so they'd make $10 more.

And remember, the wholesaler was selling to the pharmacy for no markup. They make their money on generics, right? So they could sell it for $320 to the pharmacy, and they'd make more. And then the pharmacy could sell it for $325 to you and your family or any underinsured or uninsured patient, and they'd make more.

So everybody would make more, but more importantly, more people would be able to afford their medications, and more people would be able to adhere.

So the question becomes, why does it not happen that way? Because in a capitalist society, people are going to act in their own self-interest. That's the beauty of capitalism.

People are always going to find shortcuts and disrupt so that I can get you something…

Right, wherever they can. So I'm going to tell you why it doesn't happen, right? Because those big PBMs owned by the big BUCAs, they control these things called formularies, and they control the formularies for 85 percent of people who receive pharmacy benefits.

And the formularies are the drugs that are covered by a particular plan?

Correct, correct.

And if your medication is not on that formulary or it's on a low tier, because you know in your tiers for your own health care, right, you might pay zero, $10, $50, coinsurance, whatever it may be.

Well, so these PBMs are saying to the brand manufacturer, they've told me this, that if they don't play the game this way, sell at list price and only give a 5 percent, don't do it at net, if they don't play the game that way, they will diminish their positioning on that formulary, not just for that drug, but for their entire portfolio.

It's the same reason Cost Plus Drugs doesn't have a lot of brands, because they've said the same thing: If you work with Cost Plus, then we will diminish your position on the formulary.

So two quick questions that I think will clarify what you're talking about. One is, where did the pharmacy benefit managers come from? They weren't always part of vertically integrated institutions, well let's start with that. PBMs have been around at least since the '60s, and the whole idea, and it makes sense, is like, we're going to arbitrage a lot of possibilities, and we'll sell more drugs for the people who are making them, and we'll sell them cheaper to the people who are buying them.

But really just processing claims. Right? Somebody, there's a prescription, and you have insurance—

Yeah, how do we go from there to, I mean, PBMs in a lot of ways, those are your white whale, right? That's what Cost Plus Drugs is going after. That's where you tend to—

The whole thing. They're not a unique company. They're part of these vertically integrated companies, right? So culturally, they are the same, right? Optum Rx has the same organizational culture as United, CVS, etc.

So how did they get there? Vertical integration.

And once an insurance company who already had X number of plans that they control now buys a PBM, what they say to the employer and Medicare Advantage plans, they'll say, well, let's just start with employers, right?

Self-insured employers. Sixty-seven percent of people who get insurance through their company get it through a self-insured employer. That's about 150 million, 160 million people, right? And so those all go through a PBM at some level.

And by being able to control that, plus Medicare Advantage plans, plus Part D plans for Medicare, they have such market dominance. It's like they have more customers than Amazon does.

And just imagine Amazon saying, "If you don't do business the A, B, or C way that I demand, we're not going to allow you to sell on Amazon. Or we're going to make it so that somebody has to make 15 searches to find you."

That's the equivalent of what these vertically integrated companies are using their PBMs to do.

Yeah, how does the Break Up Big Medicine Act specifically address this issue of vertical integration?

Well, it's breaking them up by definition, right?

I mean…

So then what's the benefit. Right, how do we get the lower prices and all that, right?

And so without having the market dominance to define and threaten, to say, "Look, we're not going to work with you unless you do it our way. And if you don't do it our way, you're going to lose access to 180 million customers," it ends that.

Yeah. And it says things like, if you are a medical provider, you cannot own this type of company. So, I mean—

So then we can talk about medical loss ratio and all that.

It tries to end vertical integration or limit vertical integration.

Limit vertical integration, right. Because once you get market—and there's another part that we haven't talked about that goes hand in hand with doing capitalism the right way.

So in order to have an efficient market, and you mentioned this, you have to have price discovery. In order to have price discovery, you have to have price transparency and some level of contractual transparency. Because if the prices are in the contract, then you have to have some transparency there.

You know the old Fight Club thing? The number one rule of Fight Club is you can't talk about Fight Club. The number one rule of pharmacy benefit manager and ASO and other contracts from these vertically integrated companies, their number one rule is you can't talk about them. They have complete gag clauses.

So they literally say that—well, I'll give you a better example.

TRICARE, that offers all the pharmacy benefits for all the people serving in the military, retirees as well, right? They have their plans and everything. And for certain of their plans, particularly if you're a retiree who lives off base, you don't live on a military base, then you have to order certain generics from Express Scripts slash TRICARE, and the copay is like $16.

Well, it's cheaper in many of those cases to buy from Cost Plus Drugs. Just proving the point that it's not necessarily getting the best price dealing with a bigger company.

But that's not the bad part. That's not the bad.

We still have no idea, none, zero, how much taxpayers pay for those same drugs because they prevent everybody from seeing it.

Elizabeth Warren said she was willing to go and sit in a SCIF in order to be able to look at those prices, and they refused to allow it.

And a SCIF is a secret room where you can read super top-secret documents.

Yes, right. And they still wouldn't show them to her.

And so here we are taking taxpayer money. And if they're doing such a great job, you would think they'd be proud of their pricing.

"Mark Cuban, you can't touch our pricing with Cost Plus. We want everybody to see that. We'll put you out of business"

Yeah. So, I mean, part of the idea is, like, if you introduce transparency into more markets and people understand what other people are paying, you get a more informed market, and innovation is going to happen, prices will probably come down.

What you're talking about, like if you're going to the city of Dallas and you're saying, "Hey, here's a way for you to push back on your benefits provider and maybe to shop for better things." Part of it is information, part of it is regulation, and something—when I think of two people I hate for different reasons, but with almost equal ferocity, it's Josh Hawley and Elizabeth Warren. Most of the time when they're talking, I'm like, "Hey, all I know is my freedom is going to end up on the cutting room floor," right?

But there's regulation, and then there is the ability of individuals to make choices, meaningful choices.

I guess you talk a lot about AI in very positive terms, and you've laid out one way in which AI might help by just making people capable of understanding documents, contracts that they're about to sign.

In this particular case, absolutely.

Yeah, what are the other ways that you think AI is going to transform and improve the quality and quantity of medicine and health care?

One is drug discovery.

We'll get to the point, I don't know when, where we'll be able to take genetic information about ourselves, if we choose to, and make that available to far more advanced artificial intelligence than we see today, and say, "Analyze this. Tell me what I should be concerned about." Or, "Here's everybody in my family. Let's compare it and look for deltas and see how we can use AI to improve our health or wellness."

Make, like, personalized medicine.

Yeah, I'll give you a perfect example, right?

I have to take Synthroid for a thyroid scenario. And I was taking iron supplements because I work out and I sweat a lot, and my iron levels were low. I had no idea you couldn't take them at the same time. None. My doctor didn't know because you can't remember everything. And so I put it into Claude, and boom, I found out you've got to take them at least four or five hours apart.

Simple, simple, simple example.

We're all using Dr. ChatGPT and Dr. Claude to a certain extent. Doesn't make them perfect, doesn't make them accurate in all cases, but it gives us access to this information we otherwise didn't have.

But to go back to your question, as AI gets more advanced, not only will we be able to use it for personalized medicine, but it's capable of memorizing everything.

Now, AIs don't know the consequences of their actions. AIs don't have ethics, right? AIs are not smart. They're just able to combine things in ways that they've seen before or ways that you tell them to do. But within that constraint, doctors will be able to use them to more efficiently and effectively make determinations about somebody's health. So I see it as a big positive as long as we all understand that there are certain things that they can't do.

I'll give you one more example.

The minute an AI is released, we're done training and it's made available to the world, it's out of date.

This brilliant conversation you and I are having right now, no AI knows about. And even if it's published, unless you publish a transcript along with it, it has no way to consume the video itself.

So there's always built-in latency. And so because of that, it's always going to be behind.

And you talk about a capitalistic system and how people adapt. Well, researchers and doctors who publish are recognizing that, "Hey, maybe it's smarter that I don't publish, I don't try to patent this particular device or approach to solving a health care problem. Instead, I'll just keep it to myself and either sell it to a company that can benefit from it or put it in my own model."

And so that means you're going to have disparate information in different models.

AI is probabilistic. It's not deterministic. You're not going to ever get a scenario where you put something in four different models and you get the exact same answer.

So within health care, we have to understand those constraints. And by understanding those constraints, we can use the tools to our benefit. And I think that improves health care in a thousand different ways.

Let's talk a little bit about the regulatory framework. Donald Trump and Robert Kennedy, secretary of Health and Human Services, talked, particularly for round two, or the second term for Trump, talked a really big game about changing the regulatory apparatus at places like the FDA.

It costs anywhere from a billion to several billion dollars, might take more than 10 years, to bring a drug to market. By the time it comes to market, part of its patent life is already over, et cetera, and things like that.

Are there regulations, are there policy changes that the Trump administration has made that you're bullish on, that you think were in a right direction?

I think with things like biosimilars, which are effectively injectable generics, they removed one of the steps, which I thought was smart. Because having that, I forget the exact terminology, my partner knows this stuff better than I do, but having that third-tier trial to confirm what you already know is going to happen, and there haven't been any exceptions to prove that you need it, I thought that was really smart.

But I don't get involved in the FDA side in depth as much as I do on the commercial side.

Right. Well, let's talk about Cost Plus Drugs and explain the mechanics. Before this, I went to—and of course, because he has to put his name on everything, Trump started a prescription program online, TrumpRx. It's a government program where you can get coupons, basically, for things.

One of the drugs that I take is an off-patent statin, and it used to be known as Crestor, right, when it was on patent. And I looked up on the TrumpRx plan, it would cost me $8.60. And then I went to Cost Plus, and it said it would be $5.66. This is for a 30-day supply, 10 milligrams. And then I'm on Cigna, and it costs me zero when I fill that prescription.

But it doesn't cost you zero, right? You're paying it.

Yeah, absolutely right. And unfortunately, it costs my colleagues something. They chip in a little bit as well. But how does Cost Plus— how does it work? If you go there and you already have insurance, how do you use it in a way that you know what you're going to pay for a drug, and it's probably going to be cheaper?

So two different paths, right?

So if you have insurance, then if you work with one of the big PBMs, the big three PBMs, you're not going to be able to use your insurance with Cost Plus Drugs.

There are about 35, give or take, pass-through PBMs that we partner with. So if you have insurance cards from them, you just go in there and click on insurance, and you put in the card ID, and you get the benefit. It's probably going to be a zero copay, but we'll ship it to you, right? Because that's the benefit of sorts.

If you happen to be somebody who is on a Medicare Advantage plan and are prescribed a drug that's not covered, it's not on your formulary, or there's a high copay or high coinsurance, that's a perfect customer for us because you can come to us. We're far less expensive, including shipping and handling and everything, and you use us to save money.

And if you're in one of eight states, Tennessee, Texas, and a few others, then you can also count that against your deductible.

If you're completely uninsured, then we're a godsend for you, particularly if it's an expensive medication, and particularly now with biosimilars. So now there's a biosimilar for Humira. There's a biosimilar for Stelara. Last year, Stelara would have cost you or your employer or somebody $127,000. Now our cost is $365 plus shipping.

Yeah. What limits the types of drugs that you offer? Because I noticed, I think when I looked today, there were no GLP-1s, right? You don't do things like Adderall or the generic versions of Adderall. Explain why those are—

On controlled substances, we just don't want to fight the battle, right? Because there are just too many risks, and we wanted to make sure that we weren't in a position of contributing in ways we didn't want to contribute.

In terms of GLP-1s and brand medications and specialty medications, as I referred to earlier, the big PBMs have gone to the brand manufacturers, specialty manufacturers, and told them, "If you deal with Cost Plus Drugs, we will diminish your positioning on our formulary."

Now the question becomes, why? Why do these huge conglomerates care about us?

Well, there's a study that's getting ready to come out that says every area of health care costs has gone up over the past 30 years, except starting in 2022, the cost of generics started to level off and then started going down.

That's when we launched, January of 2022.

And the reason that happened, and the reason these big PBMs and conglomerates are afraid of us, is because when you go to Cost Plus, you put in your statin, right? And we showed you our actual cost, and then we showed you our markup was only 15 percent.

And so if we were to do the same thing with brand drugs, all of a sudden, all that premium, remember we talked about the pricing of brand medications, all that premium margin that is going to PBMs to keep or distribute would be gone.

Because everybody would finally know the actual cost, just like they know the actual cost of biosimilars and specialty generics and general generics, like you saw.

Do you think, in a market sense, is the function of Cost Plus, obviously, is to sell drugs or deliver them to people who need them at prices they're willing to pay or want or can afford, but is part of it also that it disciplines the big guys? Because if what you're saying is true, they're going to have to start taking into account that if we keep squeezing this stone—

So then where are the limits of that effectiveness? When I mentioned Standard Oil, at its peak market share, was selling its products for the least amount. It was because they had a monopoly. They had over 90 percent of market share in home heating oil and lighting and things like that. But they acted as if they were constantly about to be…

Go out of business.Yeah, yeah…

Right. So, I mean, where are the other places in the medical industry? In recent essays, and preparing for this, you said, well, it's not the pharmaceutical companies, because they're often—

They're not innocent, but they're not the worst—

Yeah, ok. It's not the doctors. It's not the government. But when I look at it, it's like the American Medical Association and other groups that govern the number of medical licenses that get issued every year or the number of resident beds that are available. They're not doing anything to increase supply.

No, I agree. I'm not saying I agree with that, right? But the AMA is not a government entity either.

Well, it's quasi, right? Because you have to show—but I'm saying, how do you bring that same kind of market force, that kind of comp….This is like real competition to say, "You know what? My competitor, who's got 90 percent market share, is selling something for $10 a unit. I'm going to sell it for $8 a unit, and I'm still doing well, and you're making out better, and they're going to have to change." How do you bring that to bear on the larger healthcare system?

Because what it's missing is not only price, but trust. Nobody trusts the economic side of health care. You don't. I don't care who you are, right? Every poll, everything says…right.

I look at trust as a formula: Trust equals transparency divided by self-interest.

We're completely transparent. We show our costs. We're still the only pharmacy that publishes a price list. We have a programming interface where anybody can pull down our pricing anytime they want.

So we're completely transparent there, and we only mark up 15 percent. So that's fair, right?

And so that's what differentiates us to start, right? So people can work with us, and they trust our pricing. They know what it is.

We charge the same price to everybody, no matter who you are, where you are, what time of day it is. It doesn't matter.

When our volumes go up, like with TrumpRx, it's a portal. As you saw, you can come find your way to us. Our volumes went up. Our costs went down.

At Cost Plus, we pass those cost cuts on to our patients. We were able to lower the price of 190 more drugs. And so we're able to start with these drugs, right? We're also getting involved with manufacturing. We manufacture drugs that are sterile injectables that are on the FDA short supply list.

We also have used AI and used robotics to shrink the size of our initial manufacturing plant from football-field size, so about 5,000 square feet. And over the last five years, we've been able to shrink that into the size of a tractor-trailer.

We call them pods. And these pods are going to be our biggest business. They're our most disruptive business because we've been able to combine AI and technology so that we can take these little things, tractor-trailer size, and ship them anywhere.

Ecological disaster, weather disaster, God forbid, war disaster, we can put them there and, depending on what kind of pod it is, make any kind of drugs.

And because we can daisy-chain these things together, we're able to manufacture in volume so that we can manufacture generic tablets cheaper than we can buy them from India.

So then let me, and this might seem like a leap, but in what you just described, and particularly the trust divided by self-interest, all of what you're talking about, all this innovation, why do people—or let me say this: If there's anything that's less popular than data centers and AI, it's billionaires like yourself.

What you just gave is a riff that is, if you believe in free minds and free markets, that's been Reason's catchphrase for decades, this is beautiful. And you're describing exactly how the system should work.

But we have, in contemporary America, people, including people like Elizabeth Warren, the governor of California, who want billionaire taxes. There are members of Congress who have staff members who say every billionaire is a policy failure.

Where is the anger? And when I say people like you, there aren't that many billionaires, but in terms of economic innovation and people doing well, it seems like it's worse now.

If you can't pay your rent, if you can't pay for your medications, if you can't pay for daycare, if you can't pay for food, you're just mad.

And when you're mad, you're not looking to say, "Ok, let me find a logical construct to define why I should be mad or why I'm in these circumstances." You're just mad.

And when you're mad like that, and I've been broke, right? Six guys living in a three-bedroom apartment, et cetera, no money in the bank. You're just mad at whoever is a convenient target.

And so I don't begrudge them. Hopefully, they'll eat me last.

I understand why politicians say billionaires are a policy failure because we're an easy target. I don't blame them for doing it that way. But as an entrepreneur, I'm still going to do what entrepreneurs do. It's why I did Shark Tank for 15 years, because I wanted people to be excited about being an entrepreneur. I wanted them to see, when they watched the show and somebody walked in on that carpet from Idaho or Iowa or wherever with nothing, they had a chance for their American dream to come true.

And if they can do it, I wanted them to think, "I can do it."

And so do you feel like that dream is still alive? Or is it, because when people talk about, ok, it's hard to make rent, it's hard to do this, it's hard to do that. All of this struggle is always real. But is it just that that's the struggle? I mean, are things worse now than they used to be?

No, they're not necessarily worse, right? But we communicate differently now than we did before. Each of us is on social media at some level, whether we know it or like it or not. And each of us gets our own unique feed on social media.

There's no more Walter Cronkite. There's no more Dan Rather, where we all have communal shows that we all watched and basically understood and agreed on some level.

And there's a reason why, right? I mean, those disappeared partly because they weren't really giving people what they wanted, right?

Regardless of what it was, technology is technology. It's going to find its place, right?

I mean, I started the very first streaming company because people didn't have access to, in my case, Indiana basketball or music or whatever it may be, shows.

So people want more, but what's changed dramatically is how algorithms distribute content to each of us individually.

We all get our own individual feed on each of our social media platforms. Mine's not like yours, and they're like snowflakes. No two are alike.

And because of that, engagement increases with anger. And so every one of those algorithms has an incentive to make us mad.

Because the madder we get, the more we consume. The more we consume, the more ads that are sold. The more ads that are sold, the more subscriptions that are bought, et cetera, et cetera.

And because of that, if I'm mad about not being able to afford my rent, I'm mad about the cockroaches in the kitchen, I'm mad about the cost of beef, whatever it may be, you better damn well believe I'm getting a lot of that in my social media feed.

And if someone comes along and in that feed says it's this billionaire's or that billionaire's fault, what do you think I'm going to believe if that's 30 percent of the content I consume in any given day?

That's what's changed dramatically. And I say this all the time: Whoever controls the algorithm controls a lot of people.

Yeah. You have, in the 2024 election, I believe you're a political independent, but you came out and talked about how you wanted Kamala Harris to win. You were backing her. You're backing Talarico against Ken Paxton, the Republican Senate candidate. There's, of course, Ted Brown, the Libertarian candidate, who looks like he's going to cover the spread in Texas.

But I guess in terms of politics, at the state level, there's a real experiment going on. I'm talking to you from New York. New York City, New York state, and California are pursuing one model of governance, it seems, which is high tax, high regulation, high social services, or this is what they claim.

And then you have places like Texas and Florida that are saying we're going to do less tax, less regulation, we're going to give less services.

How do you feel about being in Texas? You've been there for decades now. It's your home place. Is Texas a better model compared to, say, California and New York state? Or how do you gauge that?

It's the ultimate capitalist decision, right? I mean.

Where you live.

Yeah, where do you live. And politicians, they sell what people will buy, what voters will buy.

And in terms of how I feel about Texas, when I got here, it was pretty much blue, and then it was purple, and then it was red, and it'll change again, just like multiple states, right?

What a conservative is today is far different than it was 11 years ago, you know? And the parties are completely different. If it were up to me, I'd get rid of all political parties. I think they've outlived their usefulness. They're just a way to raise money and to try to aggregate power as opposed to the power of ideas.

I don't give to politicians. I don't give a penny to politicians. Either you agree with what I have to say and you think it's of value to you, or you don't. And I have no intent of changing that.

Either my ideas stand up on their own, or they don't.

And in terms of my own philosophy here in Dallas, I'm an entrepreneur. And Dallas has been, Texas has been, great for me as an entrepreneur, been great for my family. I owe a lot to the city and the state, but it's changed radically, to use that term, over the years that I've been here.

Do you feel like it's getting better, getting worse, or it's just—

No, it's going to change no matter what.

The only constant is change.

My dad used to say, "You don't live in the world you were born into," you know? And it's the same thing here, where especially now with AI, I mean, there's always, like my kids, one was born before the iPhone, two weren't. Shit's going to change.

And so I don't look at it and say, "Well, pick this point in time, is it good? Is it bad?"

I look at it and say, "What can I do to make the world better?"

Look, I'm one lucky guy, right? My life is so much different than I ever possibly imagined.

And as an empathetic capitalist, right, as a compassionate capitalist, I want to give something back. My next dollar won't change my life, but it can change somebody else's life.

And when I talk to people about capitalism, that's the message I want to convey.

Now, if I was 25 again or 35 again and in healthcare, I'm sure I'd be trying to build as huge a company as I possibly could and sell it for as much money as I could because the one thing that I would want, the one thing I valued most, is time.

And the best way to gain control of your time is through your personal economics.

And so everybody's going to have their different perspective on where they live, how it's doing for them, what comes next. All I can do is try to help where I can help.

You mentioned being 25 again. Does the popularity or the kind of embrace of the idea of socialism, or the term socialism, concern you, particularly among Gen Z?

No.

Explain that, because a lot of people are like, when you hear capitalism is at a kind of historic low in terms of positive feelings, socialism in America is at a historic high, why doesn't that concern you?

So I'll go back to the algorithms and social media again, right?

When I talk to—I have three kids who are now 17, 20, and 23. And I talk to them and their friends, and a couple of them are entrepreneurial.

And their friends will come on and give me all these ideas that they think are great businesses. And I've heard them all, right? You know, shoe drops, dropships. And I'm like, these are old, tired.

Where did you get these? Social media.

How do you understand how to run this business? Social media.

Where did you watch anything? YouTube, right? Or I saw it on Instagram.

So if you take that same concept toward business, the same thing is going to work when it comes to understanding political systems and politics in general.

Kids are getting short sound bites. And if somebody who's popular and goes viral says, "Hey, I just started this business. We're going to be selling widgets at 100 percent markup. That's socialism. I hate capitalism, but I do socialism business the right way," that's the way they're going to convey how they understand something.

We don't live in a world—if I have a problem with Gen Z, it's that they don't read books.

And it's not that they can't learn because AI can be a great democratizer of information. You can ask AI to teach you anything, and like a teacher, it's not always going to be right, but you have that opportunity to learn.

It's just we don't read and consume information the way we used to. And I think that makes it harder for kids to discern between fact and fiction, information and misinformation.

And I think that's the problem again when I—

That also changes with age, right? I mean, like—

Yeah, of course.

You start to figure things out.

Yeah, hopefully, right?

But we don't know, really, because Friendster was 2006 or whatever it was, and then Instagram became popular in 2011 with Snapchat, right?

So that's only 15 years of history, really. YouTube's been around longer, but the algorithms themselves really only started to hit in 2012.

And so we only have about 13, 14 years of history. So we don't know how kids are going to evolve through this period in their lives as they become older. We have no idea.

And so when I see Australia say, "Ok, 16 and under, ehh, no social media." Some people might say, "Well, that's wrong. We don't want government involved. Let the chips fall where they may."

I'm like, no. I really believe that people don't understand how algorithms work, and they don't understand how detrimental they are not only to a kid's mental health, but their ability to learn and how they perceive the world.

I think that's a real problem. Like when you see—

Would you back a law in America, in the U.S.? Say you would be in favor of a—

16 and under. 16 and under.

I wouldn't say ban them from social media, but I would say ban them from algorithmic access.

Now there's a problem because Section 230, on Instagram an algorithm is just as protected as any other website, right? So it's a challenge.

But if I could overturn that, or at least modify it, in a heartbeat.

Ok, so then final question. You mentioned reading books, being younger. You mention Ayn Rand a fair amount, or—

Howard Roark, baby. Howard Roark's my guy.

All right, yes. So then I'm wondering how Ayn Rand would think about the idea of the government saying, "Ok, here's an arbitrary age level that you can access information or not." But beyond that, talk a little bit about how you came to know Ayn Rand's work and why it was so important to you.

Oh, my mom. My mom was a housewife who had every odd job you can imagine, went through every pop psychology you can imagine.

And what did they call the people who followed Ayn Rand? I forget the name they gave.

Objectivists.

The Objectivists, right? So we used to get the Objectivism newsletter. There was a guy named Nathaniel Branden who was big in Objectivism, and he would have records, and my mom would play the records.

And so I would have all that just around me all the time. And she was a Democrat, a hard-core Democrat, by the way.

But at the same time, I remember reading The Fountainhead and just connecting to Howard Roark.

And then I remember reading The Virtue of Selfishness and thinking to myself, you know what? To me, being selfish means helping people because that's what makes me feel best. And that's what being selfish is all about, doing what makes you feel best.

And I didn't take it as, "Ok, laissez faire ideology is strategy in life." I took it as being an individual and finding your way and work your ass off. There's going to be issues, but respect other people who may not have the same opportunities that you do.

And it's not like I grew up with a silver spoon. My dad did upholstery on cars, never made more than $40,000, etc.

But I always looked at it as I can find the motivation in Howard Roark. I can't tell you how many times I read that book. I had to stop reading the book because I would get so fired up that people didn't like it.

You're going to blow up a building somewhere.

No, not like that, right? But for business, right? Because I get so intense when it comes to learning things for a new business, like with health care, whatever it may be, that people have to slow me down.

And so I literally had to stop reading The Fountainhead over and over again.

Wow, that's a great story. We're going to leave it there. Mark Cuban, thank you so much for talking to Reason. And I know I, for one, will keep looking at Cost Plus Drugs.

Please do. costplusdrugs.com.

Yeah, when it's cheaper, I'm going to be there.

Thanks for having me on. I really enjoyed it.

Thank you so much, Mark.

The post Mark Cuban: 'I'd Get Rid of All Political Parties' appeared first on Reason Magazine.

Mental Illness Doesn't Cancel Your Right to Say No

2026-10-14T14:36:55Z

If a treatment can improve your health, does that give the government the right to force it onto you? Should the state compel people with diabetes to take insulin, patients with hypertension to take their medications, or people with obesity to lose weight?

Most Americans would recoil at such proposals. Yet when it comes to people diagnosed with psychiatric disorders, many people seem willing to make an exception.

A physician who administers treatment to a competent adult against the patient's will violates one of medicine's most fundamental ethical principles: informed consent. Why should that principle carry less weight when the doctor is a psychiatrist? Yet in a recent City Journal article, Stephen Eide and Valerie Franchitti of the Manhattan Institute argue that public support for involuntary psychiatric treatment reflects a welcome recognition of its potential benefits.

Strangely, the article entirely avoids the concept of informed consent. Where it acknowledges any limitations to involuntary treatment at all, it considers only the possibility that coercive treatment may increase stigma against mental illness.

But the more fundamental objection is liberty. A psychiatric diagnosis does not extinguish your right to control your body. Competent adults have the right to decide what substances they consume, which medical treatments they accept, and what risks they take, even when others consider their choices unwise or self-destructive. As the psychiatrist Thomas Szasz wrote in 1997, "I oppose involuntary psychiatric interventions not because I believe that they are necessarily 'bad' for patients but because I oppose using the coercive apparatus of the state to impose psychiatric relations on persons against their will."

Eide and Franchitti write, "The public is right to suspect that involuntary treatment can be effective." They cite data from the New York State Office of Mental Health showing substantial reductions in hospitalization, incarceration, homelessness, substance abuse, and suicide attempts following enrollment under Kendra's Law, which mandates outpatient psychiatric treatment. Yet these data do not establish that coercion caused those improvements. Participants also received increased access to psychiatric services, case management, and other support. Without adequately separating the effects of those services from the effects of coercion itself, the reported improvements cannot establish that compulsory treatment was responsible.

The authors also justify involuntary psychiatric treatment by citing subway attacks, mass shootings, and other violent incidents. But there is a fundamental difference between holding people accountable for violating others' rights and confining them because they might become dangerous. Communities can enforce laws against assault, trespassing, and public nuisance without criminalizing homelessness or mental illness.

Moreover, involuntary commitment to a psychiatric hospital or rehabilitation facility—sometimes for prolonged periods—deprives people of their liberty without a criminal conviction. Although civil commitment involves judicial procedures and opportunities for review, continued confinement may depend heavily on mental health professionals' assessments of whether patients meet release criteria. As Szasz warned, coercive psychiatrists can thus function as "judges and jailers not physicians and healers."

Severe mental illness can impair decision-making, sometimes profoundly, but diagnosis and incapacity are not the same. Even among psychiatric inpatients housed for severe mental illness, a meta-review of the research at BMC Psychiatry shows, most retain the capacity to make treatment decisions. Outside of hospitalized patients, decision-making capacity is even higher.

The legal scholar Elyn Saks, who has lived with schizophrenia, brings both personal experience and academic expertise to the debate over involuntary psychiatric treatment. Having experienced involuntary hospitalization, physical restraints, and forced medication, Saks has questioned the assumption that mental illness justifies overriding patients' wishes. In her book Refusing Care she examines the ethical and legal problems posed by involuntary hospitalization, forced medication, and physical restraints. Saks and the psychiatrist Dilip Jeste have also reviewed empirical research on decision-making capacity among people with psychiatric and substance use disorders, analyzing how capacity varies among individuals and how clinicians can assess and enhance patients' ability to make informed decisions.

Though the medical field has developed structured interviews with standardized scores for mental incapacity, doctors can disagree on assessment. Mental capacity is also decision-specific and time-specific, not a permanent status attached to a diagnosis. That same BMC Psychiatry review of the literature describes the impairments seen in psychosis as "temporal, identifiable, and responsive to interventions," such as presenting information in simpler terms.

Even when incapacity can be established, we must adhere to the principle of least restrictive intervention. Any intervention must be justified by the circumstances, limited to what is necessary, and designed to preserve as much individual freedom as possible. Compulsory treatment takes different forms, each imposing distinct restrictions on individual liberty. Assisted outpatient treatment allows people to remain in the community but subjects them to a court order governing treatment. Involuntary inpatient commitment deprives people of their physical liberty through hospitalization, while forced medication goes further by overriding bodily autonomy. So impaired decision-making capacity does not automatically justify confinement, let alone forced medication.

Medication can reduce psychotic symptoms, and some psychiatric patients who initially refuse treatment later believe it helped them. But evidence that medication works is not the same as evidence that compulsion produces better outcomes than voluntary treatment, particularly when a person's decision-making capacity may improve as an acute episode subsides.

In 2024, a scoping review in the journal Psychiatry, Psychology and Law found mixed evidence of benefits and harms from involuntary inpatient treatment. Patients admitted involuntarily often experienced improvements in symptoms and functioning, but they also tended to enter treatment with more severe illness, making it difficult to determine how much of the improvement resulted from compulsory intervention itself. Involuntary admission was also associated with higher financial costs and worse patient experiences, including feelings of coercion, loss of freedom, and lower satisfaction. In 2018, The Canadian Journal of Psychiatry published a systematic review of coercive measures; it found that patient experiences were predominantly negative and frequently involved adverse consequences. Overall, no consistent evidence shows that involuntary treatment itself causally improves outcomes, although it unquestionably restricts patients' freedom and imposes costs on taxpayers.

These concerns are compounded by a health care system that financially incentivizes psychiatric overdiagnosis and overmedication, regardless of whether additional interventions yield commensurate benefits for patients.

The difficult case arises when a person genuinely cannot reason about treatment options or communicate an informed choice, and when delaying intervention creates an immediate risk of harm. In such cases, the ethical principle should be the same as elsewhere in medicine: Temporary treatment may be justified when informed consent cannot be obtained, using an advance directive or surrogate when available, and only to the minimal extent necessary to manage the emergency and restore the patient's ability to decide. A credible, imminent threat to another person presents a separate public-safety justification for state intervention. But even support for those types of emergency interventions is not the same as support for broad, long-term involuntary psychiatric treatment based on supposed mental incapacity.

City Journal frequently advocates free markets, individual liberty, and limits on government intervention. Yet these writers appear willing to grant the state considerable authority over people's medical decisions without adequately distinguishing those who lack decision-making capacity from those who retain it. If we distrust government officials to make economic decisions for us, why should we trust them to make decisions about our bodies and medical care?

The post Mental Illness Doesn't Cancel Your Right to Say No appeared first on Reason Magazine.

Ohio's Democrat Momentum

2026-10-14T13:30:52Z

No longer so red: Long a swing state, Ohio went for President Donald Trump back in 2016, in 2020, and in 2024. Now, with midterms approaching, it looks likely to vote blue again, and there are early indicators that Republicans have failed to win over Ohio's working-class voters in particular.

"After the first days of early voting in Ohio, a state that could help determine control of the Senate, there are clear signs Democrats are more enthusiastic to vote," reports CNN. "So far, affiliated Democrats make up larger shares of pre-election voters than they did two years ago, even in the most Republican parts of the state. At this point in 2024, Republicans had a 30-percentage point lead over Democrats in counties that voted for President Donald Trump by 20 points or more, according to data from the Ohio Secretary of State. This year, that's shrunk to just five points."

Take this data with a grain of salt: It is just early-voter data.

But this is all rather high-stakes because Republicans are defending a Senate seat, as well as the governor's office. Two races for House seats are considered toss-ups. The conventional wisdom has been that Ohio is now solidly red, with three cycles of presidential election data to support that. But it's possible Trump has pissed off the voters who supported him to such a degree that Ohio will be sent back into swing-state territory.

"God knows we didn't vote for this," one voter—a pastor who went for Trump, then Biden, then Trump—told Reuters, referring to inflation. Other voters wonder about the decline in manufacturing jobs and the fact that the president has paid lip service to these problems but done very little to actually improve people's circumstances.

On Monday, Trump rallied in support of Sen. Jon Husted, who hopes to retain his seat. In the Mahoning Valley, the president announced a few new, uh, incentives to voters: a Defense Department facility based in Cleveland, and promises that a heat provider for Youngstown remained open. "The Youngstown area for decades used to vote Democrat, and then you ran for office in 2016 and flipped it red forever," said Husted in his speech. "Is that right, folks?"

OpenAI arrest: The FBI arrested a Saudi national who worked at OpenAI "and charged him with installing a hidden audio recording ‌device in an executive conference room," per the Department of Justice. Abdulrahman Alfozan had worked as an engineer at OpenAI since July 2025, in the San Francisco office. The company found the recording device "plugged into a USB port on the ⁠back of a television in an executive conference room," per Reuters. The device had a microphone and allegedly connected to a camera; the data it stored was encrypted.

"At this time, we have no indications of this individual inappropriately accessing or exfiltrating model weights, source code, or customer data. The employee was terminated," said OpenAI. It's not clear who Alfozan may have been working for or with; he has been a permanent resident of the U.S. since 2020, with stints at Meta and Microsoft.

"If convicted, Alfozan faces up to ⁠five years in prison, a $250,000 fine and three years of supervised release," notes Reuters.

Scenes from New York: Mayor Zohran Mamdani has reportedly reached a deal with the City Council to ban horse carriages in the city, per Politico. I'll admit, I don't really care, but I'm intrigued by the fact that the reason this has taken so long to get through has been because the union representing the carriage-drivers has been so successful at advocating for its members' interests.

QUICK HITS

Pope Leo XIV was diagnosed with lung cancer, said the Vatican yesterday. He underwent a successful surgery, and there's no additional information about prognosis at this time.
Daniel Cox's new book, Generation Uncoupled, makes the case "that problems with dating and romantic partnership are downstream from the decades-long deterioration of American social and civic life." Cox tells Derek Thompson (in a wonderful interview worth checking out): "There's a cultural dimension to all of this, as well. It's not entirely that young people have fewer social opportunities, but that they are encouraged to prioritize their own personal experiences and expression. On social media, self-optimization culture teaches young people that the most coveted rewards in life are secured through individual effort and ambition alone. There is a fear that our relational obligations can work against these goals by restricting our autonomy. It explains why more young people worry about what marriage and parenthood will require of them, rather than the benefits they offer. Not surprisingly, rates of family estrangement are at record highs, prenuptial agreements are more popular than ever, and most young people now feel that obtaining a divorce should be made easier." This obsession with self-actualization, or controlling one's circumstances, as well as risk-aversion, is something I'll be covering a bit in my book, City Without Children. This culture is shaping not only our decision to (not) couple up and get married, but also our decision to delay having kids, and how we parent them once they're here.
"The bond-market turbulence last month seeped into results as the banks each posted weaker-than-expected revenue from their businesses trading bonds on behalf of clients, and dealmaking slowed more than they had anticipated," reports The Wall Street Journal. "In a somewhat rare occurrence, JPMorgan missed analysts' expectations."
"The White House has asked Kimberly Guilfoyle, the ambassador to Greece, to resign, new White House press secretary Katie Zacharia told reporters on Tuesday, a day after President Donald Trump said he was considering firing her after allegations she asked a political donor for $100,000 to pay her personal American Express bill," reports The Washington Post.
The FIRE ("financial independence, retire early") people are now saying the quiet part out loud: that living on canned lentils well into your 40s is practically the same as being imprisoned.

This is the greatest post in the history of FIRE Reddit. Perfection. pic.twitter.com/dh1tesicfi

— Conservative Dividend Investing (@CDInewsletter) October 13, 2026

Not wrong:

"Blessed" is a useful religious concept that has no adequate secular equivalent

"I was lucky" almost wholly fails to convey the weight and sentiment of providence that comes when things go better than you had any right to hope

— Jack (@tracewoodgrains) October 13, 2026

The post Ohio's Democrat Momentum appeared first on Reason Magazine.

TV Station News Managers Fired for Allegedly Anti-Gay Memo Win >$4M from Nexstar Media

2026-10-14T12:33:18Z

The verdict came Friday; here's the backstory, from a decision in March in Fox v. Nexstar Media Group, Inc. by Judge Robert Jonker (W.D. Mich.), allowing plaintiffs' claims to go forward:

These cases arise from the fallout over an internal memo that two senior news managers at WOOD‑TV—Amy Fox and Stanton Tang—either wrote or approved regarding coverage of Pride-month events. According to Fox and Tang, management initially agreed that the memo merely restated corporate policy, but after some colleagues misinterpreted the memo as being anti‑gay—and after the memo was leaked externally—management allegedly shifted its stance and planted news stories that portrayed Fox and Tang as anti‑gay. The plaintiffs contend Nexstar did this to cause Fox and Tang to absorb the blame for the controversy while allowing the company to emerge unscathed.

In early June of 2023, Stanton Tang began to feel concerned about WOOD-TV's coverage of Pride-related events. To him, it seemed that the newsroom's approach to Pride coverage differed from its approach to coverage of other events, such as women's history month or black history month.

As Tang tells it, when it came to the latter events, the newsroom tried to approach coverage in a unified way, to ensure that coverage was diversified, newsworthy, and spread throughout the month. However, when it came to Pride events, the newsroom was deviating from its typical editorial review process, and many reporters were beginning to go cover stories about Pride festivals as soon as they heard that the event was taking place—without discussing with the rest of the newsroom whether the story ought to be covered, whether it was duplicative of another story that had recently aired, or whether some unique aspect of the story could be explored in a way that highlighted the story's overall newsworthiness. Tang was also worried that the volume of Pride stories being covered by WOOD-TV news staff was alienating some of the station's more conservative viewers.

On the morning of June 13, 2023, Tang shared his concerns with his Assistant News Director, Amy Fox. He explained that he wanted to ensure that any Pride‑related reporting included appropriate historical context and that the newsroom was approaching the topic consistently. To address these concerns, he asked Fox to draft an email to the newsroom. Fox did so and then shared her proposed email with Tang. Tang added a few more lines to the email—including a directive for reporters to "get both sides of the issue" when covering Pride events—and told Fox to send the memo to all staff, which she did….

Many coworkers opposed the memo, and some leaked it to outside media outlets, which reached out to Nexstar for comment. Fox and Tang were eventually fired, and Nexstar released two statements that were then quoted by other media outlets:

[1.] Diversity, equity, and inclusion are among Nexstar's core values. Our local TV stations are expected to cover and report the news of the day in an expansive and inclusive fashion, consistent with these values. We're looking into the situation at WOOD-TV, as the communication regarding the station's coverage of PRIDE month activities in the area is not consistent with Nexstar's values, the way we cover the news, or the respect we have for our viewers. We will take appropriate action as necessary to address this situation, and apologize for offending members of the LGBTQ community and WOOD-TV's viewers….

[2.] We can confirm that WOOD-TV made changes to its newsroom leadership team to ensure its ability to continue providing outstanding local news coverage and service to the Grand Rapids community and surrounding area. As these are internal personnel decisions involving matters of personal privacy, we will decline further comment.

"Nexstar's communications director, Gary Weitman" also responded to media queries by saying, in response to a query about whether the firings were "a result of the investigation into the memo," "I think that's a fair assumption … but again not attributable."

The court concluded that Tang and Fox had adequately alleged that statements about them were untrue:

Nexstar's theory seems to be that the only potentially untrue statement that the plaintiffs can point to is Nexstar's statement that "the communication regarding the station's coverage of PRIDE month activities in the area is not consistent with Nexstar's values, the way we cover the news, or the respect we have for our viewers." However, according to Nexstar, there is no question about the truthfulness of this statement because Nexstar's corporate leadership team is the only group of people that can define what Nexstar's values are and because that leadership team has concluded that the memo was not in line with those values….

There are two problems with this theory. First, the record contains evidence from which a reasonable jury could conclude that some members of Nexstar's leadership team did believe the memo aligned with Nexstar's values. Most significantly, Julie Brinks—the plaintiffs' direct manager—indicated numerous times that she believed the memo was in line with Nexstar's journalistic standards, that it did not discriminate against anyone, and that it was being misinterpreted by some members of the news staff. Because Julie Brinks was the person responsible for conveying to the plaintiffs how WOOD-TV was supposed to report the news, a reasonable jury could find her beliefs about the memo and about Nexstar's values and policies especially relevant concerning the question of the statement's truthfulness.

More importantly, though, Nexstar's argument is also flawed because Nexstar fails to recognize that, under Michigan law, a literally true statement can still be actionable. Often, two true statements can be juxtaposed in such a way that they imply an idea that is false, which, under Michigan law, gives rise to a cause of action for defamation. See, e.g., Reighard v. ESPN, Inc. (Mich. App. 2022). Reighard offers a good example of how this type of defamation—often referred to as "defamation by implication"—typically occurs.

The plaintiff in Reighard was the head coach of the women's gymnastics team at Central Michigan University. On February 20, 2019, the university announced that Reighard had been placed on leave and that an investigation was under way. The university did not provide any details about the investigation or the reason for Reighard's leave. Still, an ESPN reporter who had previously authored a book about the Larry Nassar sex-abuse scandal tweeted about the university's announcement in a two-part twitter post. The reporter's first tweet read:

Michigan's attorney general announced today her office is taking over an investigation of John Geddert, the 2012 Olympic team head coach and close friend of Larry Nassar. Several gymnasts have publicly abused [sic] Geddert of physically and mentally harming them.

And his second tweet read:

On the same day as the AG's announcement, Central Michigan said it was putting longtime gymnastics coach Jerry Reighard on leave amid an internal review. No details of the review were shared, but Reighard has a long personal and professional relationship with Geddert.

Read together, the obvious message implied by the tweets is that Reighard was placed on leave in connection with the Nassar scandal. Because every statement contained in each tweet was literally true, however, the reporter saw no need for a retraction. So Reighard sued for defamation…. Because a reasonable jury could have found the tweets' implication—which is that there was a connection between Reighard's administrative leave and the Nassar scandal—to be both false and defamatory, the appellate court held that the claims should [be] allowed to proceed to trial.

The same principle is on display in Hawkins v. Mercy Health Servs., Inc. (Mich. App. 1998). In that case, … [a hospital press release about the death of a patient] stated that "[w]hile the patient was being cared for by two registered nurses and a physician, there appears to have been an inappropriate dosage of medication administered." It also reported that the patient had died. [A] second press release stated that the hospital had "instituted disciplinary action" and that, as a result, "one employee is no longer with the hospital."

The implication of these two press releases, Hawkins argued, is that she was terminated for providing incompetent care to a patient. [She was actually fired for lying about whether she had criticized the doctor in charge of the patient's care. -EV] And the Court of Appeals agreed. It held that a reasonable jury could have found that the implication of the hospital's statements was false even though each part of the statements—taken literally—was, in fact, true. Therefore, it was inappropriate for the trial court to have granted summary judgment to the defendants.

In addition to illustrating the principles underlying a defamation-by-implication claim, Hawkins also touches on another issue that is central to this case: the potential for employers to deflect bad publicity by casting blame on a scapegoated employee during a scandal.

In Hawkins, the hospital was facing intense public scrutiny once it became known that a patient had died after receiving the incorrect dose of medicine. To address that scrutiny, [a team of hospital executives and others] worked together to create a press release that would imply that the hospital had responded to the death by firing the employee who was responsible for it. Outside of that goal, there is no other logical reason to have included details about Hawkins's termination alongside a press release that was otherwise meant to address the patient's accidental death.

The case at hand bears noteworthy similarities to Hawkins. In both cases, the plaintiffs were former employees who alleged that their former employer had defamed them, and in both cases, the result of the defamation was that the company's brand was shielded from harm in the midst of public controversy. Moreover, in both cases, the defamatory statement occurred not because anything the respective employers published was literally untrue, but because of the implication that arose when two statements were placed alongside one another.

In the case at hand, Nexstar's first official statement indicated that the Pride-coverage memo was not consistent with Nexstar's values and that Nexstar would be "taking appropriate action as necessary to address the situation." The second official statement said that Nexstar made changes to the WOOD-TV newsroom leadership team in order to continue providing "outstanding local news coverage." And when a reporter from CNN reached out to ask Weitman whether Fox and Tang, specifically, had been fired as "a result of the investigation into the memo," Weitman responded by saying, "I think that's a fair assumption … but again not attributable."

Weitman later confirmed that it was a "good thing" that CNN was connecting the memo to the terminations of Fox and Tang. Based on this evidence, a reasonable jury could reach the conclusion that Nexstar was deliberately spreading the message that Fox and Tang are anti-gay in order to deflect public outrage away from the company and towards Fox and Tang.

Of course, whether the evidence in the case at hand is actually sufficient to establish that Nexstar did defame Fox and Tang in an attempt to protect its own brand is a question of fact for the jury to decide. The Court's only role, at this stage, is to determine whether a reasonable jury could return a verdict for Fox and Tang on this record. Having reviewed the record, the Court concludes that a reasonable jury could return such a verdict with respect to the defamation claims….

The case did go to a jury, and the jury concluded that defendants did not defame plaintiffs, presumably because the statements weren't sufficiently damaging to plaintiffs' reputations (the jury verdict forms weren't specific on the reason). But it concluded that defendants did place plaintiffs in a "false light," which requires a showing that the statements "were untrue and … would be highly offensive to a reasonable person," and that defendants knew the statements were untrue or were at least quite likely untrue. On that theory, Tang received $1.29M in compensatory damages plus $300K in punitives; Fox received $1.8M in compensatory damages plus $500K in punitives.

Tang and Fox also received $93K each for violations of Michigan's Employee Right-to-Know Act. That Act makes it illegal to "'divulge a disciplinary report, letter of reprimand, or other disciplinary action to a third party' without first providing the employee with written notice that such information is being shared"; plaintiffs alleged that Nexstar had "notif[ied] third-party news outlets about disciplinary action that was being taken against Fox and Tang without first notifying them of such disclosures."

Nancy A. Temple (Katten & Temple LLP) represents Fox; Todd Knecht represents Tang.

The post TV Station News Managers Fired for Allegedly Anti-Gay Memo Win >$4M from Nexstar Media appeared first on Reason Magazine.

"Fortunately for Society, Plaintiff's Framework for Retrospectively Punishing News Outlets Is Not the Law"

2026-10-14T17:58:13Z

From Tate v. Fox News Network, LLC, decided yesterday by Judge Gregory Presnell (M.D. Fla.):

Plaintiff has been a licensed attorney in Florida since 2006 and serves as the president of the residential homeowners' association ("HOA") in the Stillwater Lakes Subdivision ("SLS") where he resides.

On April 14, 2024, Plaintiff was arrested by the Palm Bay Police Department ("PBPD") and charged with criminal mischief and grand theft. His arrest stemmed from a probable cause affidavit (the "Affidavit") which stated the following:

On 04/14/2024, I Ofc. Barraza #158 and FTO Marcum #244 responded to a suspicious incident at Stillwater Lakes. The incidence occurred on the south side of the lake in Stillwater Lakes Subdivision, belonging to the HOA, not the defendant.

There were 3 juveniles' victims that were fishing on the property. The juvenile victims stated a man, later identified as Kyle Patrick Tate (The defendant), approached them with a firearm telling them to get off his property. Kyle willfully deprived the juveniles of their property and threw it into the woods, damaging it. The property included:

Fishing reels and rods: $1900

Tackles boxes containing fishing lures: $150

Cast nets: $150

In addition, Kyle took one of the juvenile's phones which remains unrecovered. (Approximately $1500)

Based on the above information Kyle did deprive the victims of their property by taking the cell phone, and willfully and maliciously damaged the fishing equipment (3 fishing poles, fishing tackle) he was placed under arrest for Criminal Mischief (above $1000) and Grand Theft. Kyle was taken into custody and later turned over to the Brevard County Jail.

On May 2, 2024, Defendants published an article reporting on the incident with the headline: "Florida HOA president pulls gun on kids fishing on property: affidavit." The article reported the details in the PBPD Affidavit, acknowledging that the children involved (which it identified as being aged 7, 10, and 15) did not live in the subdivision and that they were fishing on property that belonged to the HOA, not Plaintiff. It also included quotations regarding the incident from one of the children's (the 10-year-old's) mother[:] … "'A gun should've never been pulled on them,' said the mother of the 10-year-old-child, who asked not to be named in this article. 'It was startling. He's still super shaken up, knowing that on a daily basis we have to drive by this subdivision where this man lives.'" …

Later that day, Defendants' national network published a similar article before their local TV affiliate broadcast the story on its evening news program as a "DEVELOPING STORY" and "BIG STORY" (the "2024 Broadcast"). The broadcast displayed Plaintiff's booking photograph along with a chyron reading: "BOOKING IMAGE/ATTORNEY ACCUSED OF APPROACHING KIDS WITH GUN, THROWING STUFF INTO WOODS[.]"Another on-screen banner, which appears only during the broadcast video embedded on the article website, read: "HOA president pulls gun on kids: officials[.]"Some versions of this banner include the qualifier, "allegedly."

On June 17, 2024, the state attorneys' office filed a Notice of No Information, declining to pursue charges against Plaintiff over the SLS incident.. On October 6, 2025, Plaintiff's arrest and all associated court and arresting records were ordered expunged pursuant to Fla. Stat. § 943.0585 (which allows eligible individuals to petition a court to expunge criminal history records when charges are abandoned).

On April 3, 2026, Plaintiff served Defendants with statutorily-required pre-suit notice which identified his claim that their reporting was false and defamatory and demanded, among other redress, its retraction. In response to Plaintiff's notice, on April 10, 2026, Defendants broadcast a "STORY UPDATE" regarding Plaintiff's arrest and the SLS incident (the "2026 Broadcast"). In this update, Defendants referred to their original reporting and noted Plaintiff's April 3rd notice letter before acknowledging that, upon further research, the case had been expunged. They also noted that they had reached out to Plaintiff's attorney for further clarification but had received no response. The 2026 Broadcast did not mention the words "gun" or "firearm."

The FAC [First Amended Complaint] contends that Defendants' reporting in their published articles and in the 2024 Broadcast was inaccurate and defamatory because it repeated allegations that he was carrying a firearm despite the fact that he was not charged with any firearms-related offenses. Plaintiff argues that the only source for the firearm allegation was "a single Probable Cause Affidavit narrative attributed to the juvenile complainants and supporting no firearms charge." He likewise insists that the 2026 Broadcast "was inadequate as a corrective publication and was itself defamatory by implication and omission" because it did not include express reporting that there were no firearms charges involved and otherwise failed to correct deficiencies he perceived….

Defendants have "a qualified privilege to report accurately on information received from government officials." "The privilege extends to the publication of the contents of official documents, as long as the account is reasonably accurate and fair." A "report may be covered by the privilege even if it omits details or is not as precise as technical or scientific reporting." In [other] words, the press may exercise "editorial discretion in what to publish."

Plaintiff argues that Defendants are liable for defamation because they reported that he "pulled a gun" on three children in the 2024 Broadcast (and the associated published reporting), instead of using the Affidavit's language that he "approached them with a firearm" (despite acknowledging in the FAC that the articles do use those exact words in some places). He says that "[p]ointing or drawing a gun on a child" is conduct covered by aggravated assault crimes for which he was never charged. Indeed, Plaintiff avers that Defendants "knew th[is] difference" and deliberately reserved this terminology for the headlines and the 2024 Broadcast—presumably to attract attention (although he does not explain how their knowledge of the elements of an aggravated assault charge informed their diction). {This is but one of several indications that Plaintiff's brief is primarily the product of artificial intelligence. See also Doc. 46 at 4-5 (Plaintiff's one-paragraph "argument" about the fair report privilege is meaningless).}

Crucially, however, Plaintiff does not dispute (nor provide any alternative explanation for the fact) that he "approached" a 7, 10, and 15-year-old "with a firearm telling them to get off his property." Plaintiff acknowledges that he spoke to the children and has never denied that he was holding a firearm when he did so, he simply avers that he "did not approach any child in any improper, threatening, or predatory manner." But then, Defendants did not report that he did any of those things either—though the Affidavit would likely support such reporting. See Doc. 27-1 at 2 (describing a man approaching small children "victims" with a firearm to accuse them of trespassing while "willfully depriv[ing]" them of their property, throwing their fishing poles in the woods, and "maliciously damag[ing]" them). {Plaintiff's contention that young, unaccompanied children would not feel inherently threatened by a strange man approaching them with a firearm (pointed at them or not) has no basis in reality—particularly where the Affidavit describes that man as "maliciously" damaging those children's property. And the fact that the state of Florida declined to press charges against Plaintiff in no way serves as grounds to distort the undisputed facts.}

Not only was Defendants' reporting unquestionably an accurate and fair account of the facts described in the Affidavit, but it was important, newsworthy information of significant value to the local community. Plaintiff's attacks on the obvious applicability of the fair report privilege echo the frivolity of his FAC.

First, the "substance or gist" of Defendants' reporting plainly "conveys essentially the same meaning" as the information reported in the Affidavit. {No amount of argument from Plaintiff can change the fact that the Affidavit goes well beyond simply listing his charges; it tells a story—a story which was accurately reported by Defendants. Compare Doc. 27-1 (Affidavit stating that Plaintiff "approached [3 juveniles] with a firearm telling them to get off his property") to Doc. 46 at 18 ("That Mr. Tate was charged with theft offenses does not make true the headlines that he pulled a gun on children.").}

Second, Plaintiff's quibble with the plurality of the words, "officials" and "court docs," is not only substantively misguided (booking photos are indeed part of the "court documents" and the involvement of more than one official supports Defendants' use of the plural), but it is ultimately irrelevant to the fact that Defendants' reporting accurately reflected the official records. And finally, the inclusion of quotations from the mother of the 10-year-old victim has no impact on the applicability of the privilege here—particularly where her comments simply echo the Affidavit in her own words.

{Unsurprisingly, Plaintiff has no legal support for his frivolous contentions. His citation to Heekin v. CBS Broadcasting, Inc. (Fla. App. 2001), for the proposition that the inclusion of the mother's quotations defeated the privilege is exemplary. Not only was this case disapproved of by the Florida Supreme Court [in2 008], but the [Court of Appeal] only reversed the lower court's application of the fair reporting privilege because "there [wa]s nothing in the record to indicate that the trial court compared the broadcast at issue with the public records and found the broadcast to be an accurate description of the records as a matter of law." The Court here already found that Defendants' reporting accurately reflects the official records.

Moreover, it is clear that the mother's comments also accurately reflect the Affidavit—albeit with additional details (ie. the firearm with which Plaintiff approached the children was allegedly a shotgun—which Plaintiff does not contest). Her statement that "[a] gun should've never been pulled on them" merely echoes the Affidavit and provides additional support for the Court's earlier conclusion that Defendants' reporting was accurate. } …

Plaintiff's theory that the 2026 Broadcast was defamatory has even less merit. According to Plaintiff's Orwellian framework, the 2026 Broadcast (which aired solely because of his legal demands) is not covered by the fair report privilege because the Affidavit and original court records are now (again, at his request) "not available to any person or entity except upon order of a court of competent jurisdiction"—[i.e.,] that there is no longer any official record upon which to base Defendants' reporting (or the privilege).

Setting this dubious contention aside, Plaintiff forgets that this Court is of competent jurisdiction to order the divulgence of such records. That is not necessary here, however, because the Court has already seen the Affidavit (which is presently available to anyone else via this case's public docket) and it wholly supports the accuracy of Defendants' reporting. {Moreover, Plaintiff's public posting of the Affidavit with complete disregard for its privacy in this suit further undermines the sincerity and veracity of his claims.}

Having found that Defendants' initial reporting in 2024 was covered by the fair report privilege, they had no obligation to "correct" any inaccuracies in 2026. However, the update they provided honored Plaintiff's request to clarify that the criminal case against him "had been expunged" and that the State Attorney's office had no record of it. Moreover, the (accurate) short summary they provided of their 2-year-old original reporting to preface this new information cannot support a defamation claim simply because Plaintiff had the underlying official records expunged. This is particularly true where the records in question obviously still exist and are presently being publicly exhibited in this record.

{Again, Plaintiff's frivolous argument that Defendants created "an implication" by not explaining that Plaintiff specifically was not charged with or convicted of any firearm offenses is wholly without merit. The "implications" Plaintiff complains of arise only from his decision to handle a simple matter of young children fishing where (maybe) they were not supposed to be by approaching them with a firearm, demanding they leave his property, and—at least temporarily—commandeering and "maliciously" scattering (and damaging) their property.}

As Defendants recognized, "[i]n [Plaintiff's] view, if arrest records are eventually expunged, then a news organization retroactively loses the right to report information in the original arrest affidavit." Fortunately for society, Plaintiff's framework for retrospectively punishing news outlets is not the law. The relevant time for assessing applicability of the fair report privilege is the time of publication. Defendants said it succinctly: "[t]he fact that the state expunged [Plaintiff's] records more than a year after [Defendants] reported on his arrest does not retroactively give rise to a claim for defamation, which must be based on facts as they existed at the time of publication."

Plaintiff does not like the story relayed in the Affidavit, but Defendants' reporting on it was accurate and, therefore, protected by Florida's fair report privilege. Plaintiff's success convincing the state to expunge his record a year-and-a-half later has no effect on that conclusion or subsequent, accurate precis of that story….

I e-mailed plaintiff, who had the following comment on the matter:

I am disappointed with the dismissal. This case is about whether Fox fairly reported a police affidavit, not whether the affidavit's account of the incident was true.

I was arrested for criminal mischief and theft; there was no firearm charge. The State Attorney filed no charges, and the record was later expunged. The affidavit says the children told police I approached them with a firearm and told them to leave. It does not say I pointed or pulled a gun, and I didn't. My proposed amended complaint quotes broadcasts Fox filed with the court: an anchor said I was "accused of pointing a gun" at kids, and a reporter, relaying a mother's account, described a child running from a man "threatening him with a shotgun." Those statements convey a materially different accusation from the one in the affidavit. Fox's article and an on-screen caption, by contrast, used the affidavit's word, "approaching."

I dispute the arrest itself, and claims arising from it are being prepared separately. I didn't put my full account of that day into this case because this case doesn't turn on it. My complaint denies that I pulled, pointed, or threatened anyone with a gun; beyond that, the question here is what the affidavit says and whether Fox reported it accurately. The press can fairly report an affidavit even when the affidavit is wrong. What it can't do is attribute to the affidavit an accusation it doesn't make, as was done here.

I believe the court was wrong to conclude that Fox's reporting conveyed essentially the same meaning as the affidavit. The order never analyzed the broadcast statement that I was "accused of pointing a gun." And while it treated the shotgun as an added detail, it never addressed the broadcast's statement that I threatened a child with it. My opposition identified the broadcast statements, and my motion for leave sought to plead them expressly. The court found amendment futile and denied leave as moot. In describing the motion, it focused on the dispute over the proper Fox entity without explaining why the proposed broadcast allegations would not cure the claim.

I support the press's ability to report official records, but questions are raised about the privilege's limits that matter beyond my case:

First, how much latitude does the privilege allow? A report need not be exact. It must give "a substantially correct account" of the record. In Woodard v. Sunbeam Television Corp., 616 So. 2d 501, 502–03 (Fla. 3d DCA 1993), the court found a discrepancy immaterial because it "would not have had a different effect on the mind of the viewer." The order asked whether Fox's reporting conveyed "essentially the same meaning" as the affidavit, borrowing that phrase from Florida's substantial-truth instruction. See Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1107–08 (Fla. 2008). In a footnote, it reasoned that children would feel threatened by a man approaching with a firearm, "pointed at them or not." That speaks to how the children may have felt. The fair report question is what viewers were told I did, and I think the difference between carrying a gun and pointing one at a child is exactly the kind that changes what a viewer believes happened.

Second, what does attribution protect? "Accused of pointing a gun" is framed as a report of an accusation. But no one accused me of pointing a gun: not the police, who charged criminal mischief and theft, and not the children, as the affidavit recounts what they said. Reporting that the children told police I approached with a firearm would be privileged. Reporting that I was accused of pointing one attributes to the record an accusation it doesn't contain. As early as 1965, in a case about a newspaper's report of a police offense report, a Florida appellate court held that a report may not go "further than a mere report of the news by making charges directly or by inference, insinuation, or assumption, that one is guilty of a crime." O'Neal v. Tribune Co., 176 So. 2d 535, 547 (Fla. 2d DCA 1965).

Third, does the privilege reach sources outside the record? The shotgun account came from a parent's interview, not the affidavit. A Florida appellate court has said that an interview, and a reporter's narration of it, "are not public records," so the privilege "would not apply" to them. Heekin v. CBS Broad., Inc., 789 So. 2d 355, 360 (Fla. 2d DCA 2001), disapproved on other grounds, Anderson v. Gannett Co., 994 So. 2d 1048, 1051 (Fla. 2008). Outside the privilege, repeating another's accusation is ordinarily treated as publishing it. Restatement (Second) of Torts § 578. The order instead found the interview consistent with the affidavit. If consistency with a record extends the privilege to non-record sources, fair report starts to become a truth defense under another name.

I will press forward to the Eleventh Circuit. I welcome any comments from you or your readers.

Deanna Kendall Shullman and Minch Minchin (Shullman Fugate PLLC) represent defendants.

UPDATE 10/14/2026 1:57 pm: Today, the court also held that defendants are entitled to have their attorney fees paid, under Florida's anti-SLAPP statute.

The post "Fortunately for Society, Plaintiff's Framework for Retrospectively Punishing News Outlets Is Not the Law" appeared first on Reason Magazine.

College Still Has a Future, but It's No Longer the Default Choice

2026-10-14T11:00:28Z

Is a college educations worth the hassle and expense? Amid concerns over soaring tuition costs and campus political intolerance, a growing share of Americans aren't convinced that higher education is worthwhile. Academics themselves—the honest ones, anyway—acknowledge that they've squandered a lot of goodwill over the years. Fortunately, it's still possible to get an education that justifies the time and money—though the path doesn't necessarily go through college.

High Costs and Political Bias Sour Americans on College

"Three in 10 Americans (31%) think a college education is 'very important,' four percentage points below last year's reading, the previous low among the seven times Gallup has asked this question since 1978," the polling firm reported earlier this month. "As recently as 2013, more than twice as many U.S. adults (70%) said college was very important." Gallup adds that "the percentage of U.S. adults who say a college education is 'not too important' has risen from 6% in 2013 to 29% today, while the percentage saying it is 'fairly important' has increased from 23% to 39%."

Higher education plummeted in public esteem for more than one reason. For years, Americans have voiced concern about rising costs and political intolerance on campuses. Last year, even as a Vanderbilt University poll found a slight rebound in favorability toward colleges and universities, the authors noted that "Americans across the political spectrum still are deeply concerned about the affordability of higher education" and "many Americans see political bias in higher education as a serious problem."

The problem was underlined this year when some colleges broke the $100,000 mark in annual costs. "Today, a bachelor's degree at some of America's top schools can cost upward of nearly half a million dollars over four years," reported Business Insider. "And the trend doesn't seem to be slowing down."

Almost at the same time, Vanderbilt released a report warning "there are several worrying tendencies in contemporary academic scholarship in the humanities and social sciences, all of which reflect, to varying degrees, a distinctive form of politicization in which the scholarly enterprise is taken to be subordinate to, or in the service of, political (social or moral) goals beyond the advancement of knowledge and understanding." The goals of this politicization, the study added, "are generally though not exclusively associated with the progressive left."

Unsurprisingly, many Americans balk at paying through the nose so they (or their kids) can spend four years at woke camp. That trepidation undoubtedly contributes to declining college applications at a time when the applicant pool is already shrinking. Many students who do apply to college are applying very modern filters to the schools they'll consider.

"The median student is willing to pay up to $2,617 (12.5%) more to attend a college where the share of students with opposing political views is 10 percentage points lower, suggesting that political identity plays a meaningful role in the college choice process," found a 2025 study from the Annenberg Institute at Brown University which documented "a steady increase in political sorting across American colleges."

This month, a survey from Art & Science Group, a higher education consultancy, found that among college applicants, "the share ruling out colleges solely because of politics in a state rose from 24% in 2023 to 31% in winter 2026 and 34% in summer 2026."

Employers haven't stopped hiring from prestigious colleges and universities. But the definition of "elite" has changed, with some firms leery of traditional Ivy Leagues and preferring southern schools where costs are lower and ideological tolerance still has a place.

College Still Offers Value for Those Who Choose Wisely

Higher education can still be worthwhile for students who apply due diligence to their selection of schools and fields of study. College offers a good return on the investment of time and money for those who choose wisely.

According to the Education Data Initiative, "an average bachelor's degree has a 560.53% lifetime return on investment with a median lifetime return up to 1,040.14%." But not all degrees are equal. "The most cost-efficient bachelor's degree is in management information systems and statistics, with a lifetime ROI of 1,758.59%," while "a Bachelor of Psychology offers the lowest lifetime ROI at -122.78%, representing a $54,188 loss in degree-based earnings (compared to median earnings with a high school diploma)."

The 10 bachelor's degrees with the highest lifetime earnings are an assortment of engineering disciplines, management information systems and statistics, accounting, finance, economics, mathematics, and the like. But return on investment also depends heavily on the cost of the degree; it's more difficult to get your money's worth when you pay top dollar.

Importantly, science, technology, engineering, and mathematics fields are also the academic disciplines with the least lopsided political balance among professors.

Trade Schools Rise as Employer Demand for College Degrees Falls

But college is not the only choice for young Americans planning their futures. According to a 2025 Harris survey for the American Staffing Association, more Americans now recommend that graduating high school seniors go to trade school (33 percent) than recommend college (28 percent).

Trade schools cost a fraction of what four-year colleges cost. And they satisfy a growing demand for skilled workers.

"Of the 124 skilled trades occupations, 86 are projected to grow or hold steady, and more than 600,000 net new positions are projected through 2035," the Alliance for Skilled Trades, a coalition of companies that depend on trades people, notes in a recent report. "Employers will need to fill about 1.7 million openings each year."

Note that new positions are opening even as the population of job-market entrants shrinks.

And employers increasingly value experience and in-house training over college degrees of dubious value. Last year, a quarter of employers reported that they were eliminating requirements for bachelor's degrees among new hires.

Higher education still has a role to play. But "education" doesn't have to mean four years of high tuition. It can be a certification program or trade school that launches graduates into a productive life.

After decades of being the default path for many Americans, colleges and universities have alienated people with high prices and intolerant ideological environments. They still have a lot to offer, but now they have to compete with alternatives for the time and money of a skeptical public.

The post College Still Has a Future, but It's No Longer the Default Choice appeared first on Reason Magazine.

Today in Supreme Court History: October 14, 1911

2026-10-14T11:00:12Z

10/14/1911: Justice John Marshall Harlan I dies.

Justice John Marshall Harlan I

The post Today in Supreme Court History: October 14, 1911 appeared first on Reason Magazine.

Brickbat: Not Counting Every Penny

2026-10-14T08:00:37Z

A California state auditor found waste, mismanagement, and misuse of taxpayer money inside several state agencies, including the office of state Controller Malia Cohen, which is responsible for managing state finances and payroll. The investigation found that for over a year, senior officials in Cohen's office deliberately stalled the recovery of more than $33,000 in salary overpayments to two employees, canceling a required payroll deduction while considering an alternative plan to seek state payments on the employees' behalf. Officials never carried out that plan, and the auditor concluded that the office violated state law by failing to collect one employee's debt. The investigation also found that two managers worked remotely from Idaho, Tennessee, and Alabama despite rules restricting out-of-state telework. Across nine cases involving multiple state agencies, the auditor identified about $885,000 in wasted, misused, uncollected, or improperly spent public funds.

The post Brickbat: Not Counting Every Penny appeared first on Reason Magazine.

Open Thread

2026-10-14T07:00:00Z

The post Open Thread appeared first on Reason Magazine.

Other Courts Should Heed a Federal Judge's Warning About Flock-Enabled Mass Surveillance

2026-10-14T04:01:09Z

Back in 1983, the Supreme Court declared that "a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." That increasingly doubtful proposition underpins a nationwide network of more than 144,000 AI-assisted cameras that track the travels of innocent motorists across the country billions of times each week.

So far, state and federal courts have almost uniformly rejected constitutional challenges to automated license plate readers (ALPRs) installed by companies such as Flock Safety. But in a decision that could signal a shift in the legal treatment of Flock cameras, a federal judge in Oklahoma recently recognized that they enable "a type of indiscriminate mass surveillance."

ALPRs are much more sophisticated than the technology that the Supreme Court considered in 1983, when it approved the warrantless use of a radio transmitter that helped police tail a suspected methamphetamine manufacturer's car. Three decades later, by contrast, the Court said police should have obtained a search warrant before attaching a GPS tracker to another drug suspect's car.

The majority opinion in the latter case emphasized the physical intrusion necessary to install the tracker. But five justices embraced an alternative rationale, saying GPS tracking impinges on reasonable expectations of privacy by revealing potentially sensitive information about the target's historical whereabouts.

That theory came to the fore in a 2018 case involving mobile-phone location data collected by cell sites, which the majority said implicated the Fourth Amendment because "individuals have a reasonable expectation of privacy in the whole of their physical movements." The Supreme Court reiterated that principle this year, extending it to data collected by Google's Location History feature.

"An individual has a reasonable expectation of privacy in records about his cell phone's location," Justice Elena Kagan said in the majority opinion, "and police intrude on that constitutionally protected interest when they demand the information." By similar logic, U.S. District Judge Sara E. Hill concluded this month in the Oklahoma case, people have a reasonable expectation of privacy in ALPR records, and police therefore generally need a warrant to search them.

Those databases include "information about all vehicles that pass by any network-connected camera at all times," which police can peruse "on demand," Hill noted. "Freedom from persistent, dragnet-style surveillance while in public is not a foreign concept in our society, and it is a reasonable expectation that society already accepts," as reflected in the Supreme Court's cellphone decisions.

Like cars, cellphones "move in public places where people can see you in plain view," Hill wrote. "But it becomes constitutionally problematic when law enforcement can indiscriminately and passively catalog your whereabouts over an extended period of time and then use that information for any purpose whenever convenient."

At this point, Hill's decision is an outlier. "It appears that nearly every court examining the issue to date has determined that ALPR technology use is not a search under the Fourth Amendment because people have no reasonable expectation of privacy in their movements on public streets," she noted.

Last month, for instance, a federal judge in California held that ALPR database searches are "clearly distinguishable from and less extensive than the 'near perfect surveillance' achievable" with cell-site or Location History data. And the day after Hill's ruling, a state judge in California rejected a challenge to San Jose's Flock camera network, saying "there is no reasonable expectation of privacy in license plate data collected from cameras directed solely at public streets."

A federal lawsuit involving the same city's ALPR system, which the Institute for Justice filed last April, is still pending. So are challenges to Flock cameras in cities such as Wichita, Kansas, and Norfolk, Virginia.

Even when they reject such lawsuits, courts commonly acknowledge that the legal picture could change as the number and capabilities of ALPRs multiply. If so, it seems likely that Hill will eventually be joined by other judges who recognize the perils of "indiscriminate mass surveillance."

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Court Issues Preliminary Injunction Requiring CNN, MS NOW, and Politico to Be Readmitted to White House

2026-10-14T06:51:53Z

From Judge Timothy Kelly (D.D.C.) today in CNN, Inc. v. Trump:

On September 18, 2026, President Trump posted on social media that he was "proud to announce that, effective immediately," he was "banning" CNN, MS NOW, and POLITICO "from the White House." And sure enough, when reporters from those news organizations who hold "hard passes" allowing them to work there showed up the next day, they were denied entry. So Plaintiffs—these three news outlets and three individual hard pass holders who work for them—promptly sued the President and several Executive Branch officials, alleging that Defendants were violating their rights under the Fifth and First Amendments. They also moved for a temporary restraining order restoring their hard passes, which the Court granted. The Court found, under Sherrill v. Knight, 569 F.2d 124, 130–31 (D.C. Cir. 1977) and subsequent precedent, that Plaintiffs were likely to succeed on their claims that their hard passes were revoked without due process required under the Fifth Amendment, were likely to suffer irreparable harm without interim relief, and that the balance of the equities and the public interest tilted in their favor.

Now before the Court is Plaintiffs' motion for a preliminary injunction. The Court will grant that motion as well, finding that Plaintiffs are likely to succeed not only on their due process claim, but also on their two First Amendment claims. Still, no one should interpret the Court's decision to suggest that President Trump's concerns about accuracy and fairness in the media's reporting are unfounded, or that the government is powerless when its true aim is to protect national security when classified information is unlawfully disclosed. That said, for the reasons explained below, the Court will extend the relief it already ordered, which will continue to preserve the status quo while this case proceeds.

Unlike the decision granting the temporary restraining order, which was based only on plaintiffs' Due Process Clause rights, this decision also rules in favor of plaintiffs on First Amendment grounds. An excerpt from the court's conclusion that the Administration likely unconstitutionally retaliated against plaintiffs based on their speech:

"[T]he First Amendment prohibits government officials from subjecting individuals to retaliatory actions after the fact for having engaged in protected speech." The government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech." And even "ordinarily permissible exercise[s] of discretion may become a constitutional deprivation if performed in retaliation for the exercise of a First Amendment right." …

[I]t is likely that President Trump's revocation of Plaintiffs' hard passes is the sort of action that would deter a reasonable reporter or news organization from publishing stories to which he objects. The revocation of Plaintiffs' hard passes matters a lot as to how, whether, and to what extent they can do their jobs. As Plaintiffs attest, a hard pass is crucial to covering the White House because it allows reporters "immediate, unescorted access to the areas of the White House complex designated for the press." Without hard passes, Plaintiffs would miss the newsworthy events that often happen at the White House with "little or no notice." Indeed, the effect on Plaintiffs' ability to do their jobs is so significant that in Sherrill and Karem [the key D.C. Circuit precedents as to hard passes and the Due Process Clause] the D.C. Circuit characterized the loss of a hard pass without adequate process as implicating a separate constitutional interest. And if a one-month suspension from the White House grounds is "an eon in today's news business," then it is likely that the open-ended ban here would chill a reporter's work.

President Trump's own comments suggest that he intended the revocation of Plaintiffs' hard passes to alter their reporting on him, bolstering the case that his action here is sufficient to deter a reporter of ordinary firmness from reporting in the same way she had before. After explaining that he excluded Plaintiffs from the White House because they "purposely write negative news … to try and diminish the Republicans and a Republican administration," President Trump remarked that he is prepared to take "the ban … as far as you can," but that he would "love it" if they "could straighten themselves out." …

Defendants also rely on an out-of-circuit case to argue that President Trump's decision to revoke Plaintiffs' hard passes and ban them from the White House grounds is insufficiently chilling to meet the second element of retaliation. In Baltimore Sun Co. v. Ehrlich (4th Cir. 2006), Maryland's governor prohibited anyone in that state's executive branch from speaking to a reporter and a columnist at a specific newspaper because his press office felt "that currently both are failing to objectively report on any issue dealing with [his] Administration." The Fourth Circuit found the directive at issue—which "select[ed] among reporters when granting interviews or providing access to nonpublic information"—"a pervasive feature of journalism" and "so commonplace" that to allow a retaliation claim to proceed would "plant the seed of a constitutional case in virtually every interchange." …

When President Trump first declared that he was "banning" Plaintiffs from the White House, he said he was doing so "as a result of their constant 'reporting' of 'FAKE NEWS.'" He wrote that Plaintiffs "shouldn't be able to constantly write or report FICTION and LIES when they're covering the President of the United States, the Trump Administration, or the United States of America." The next day, when asked about whether there was any "particular reason" for the ban, he responded: "No … it's really just cumulative stories over the last two years…. [T]hey purposely write negative news. And they do that because they want to try and diminish the Republicans and a Republican administration. And honestly, we've done a fantastic job. Look at the numbers, look at the economic numbers. We have more money coming into our country today than ever before." His posts on September 21 also focused on "Fake News," and how Plaintiffs had "trivialize[d]" and "demean[ed]" his accomplishments, including that he had won re-election in a "LANDSLIDE." His subsequent comments about the ban, including his interview with Time Magazine, again focused on his view that Plaintiffs had failed to give him proper credit for his achievements, including winning re-election in 2024. "If I do the finest thing, if I found the cure to cancer, they would say, 'Why didn't he move quicker?" …

Defendants respond by arguing that, notwithstanding President Trump's other grievances with them, Plaintiffs have failed to show causation because President Trump or some other official "would have reached the same decision … even in the absence of the protected conduct." Defendants argue that their "alternative ground" for revoking Plaintiffs hard passes is Plaintiffs' failure to "maintain minimum professional journalistic standards by publishing classified and national security information." …

[But f]irst, there is no evidence in the record that President Trump made the decision to revoke Plaintiffs' hard passes on national security grounds from the get-go, nor at any time has he directly stated that national security was the reason for his decision. When he announced the ban with his post on September 18, he did not mention national security. When he was asked later that day about the "particular reason" for his action, he did not mention national security. And while it is true, days later, that he used the phrase "national security" in subsequent social media posts about the ban, that expression appears to have been simply another way for him to describe Plaintiffs' alleged inaccuracies and unfairness in their reporting about topics like his achievements or electoral success. All this suggests that "national security" was merely a post-hoc justification for the decision, which greatly undermines the idea that President Trump "would have"—not "could have"—taken the same action in the absence of Plaintiffs' protected speech, even if it is not dispositive on that point.

Second, Defendants point to the September 22 letters sent to Plaintiffs as evidence that President Trump or another official would have taken the same action for national security reasons, even apart from Plaintiffs' protected speech. Those letters, sent four days after the ban was announced, lay out a case for revoking Plaintiffs' hard passes based on alleged violations of "the standards of professionalism and decorum expected of those given access to the White House Complex," including "trafficking in verifiable falsehoods about national security and other issues," and "publishing sensitive or classified information." But the letters hardly move the needle on this point. The letters appear to conflate concerns about otherwise protected speech ("trafficking in verifiable falsehoods about … other issues") with national security concerns….

Third, Defendants try to make their case with each of the September 22 letters' "non-exhaustive list of reporting incidents," associated with each news organization, "including those that have threatened national security and/or spread falsehoods." They also rely on the Declaration of Kingsley Wilson, Press Secretary for the Department of Defense, now also known as the Department of War. These too come up short for Defendants' purposes.

In the Declaration, Wilson lays out how the publication of classified and sensitive information can undermine national security. She describes how the Department of War decided to make a change in how reporters access the Pentagon to try to combat the publication of such information. She also describes how, in her view, that policy—whatever its details (they are never spelled out)—has been successful. The problem is that Wilson's declaration says little to nothing about President Trump's decision to revoke Plaintiffs' hard passes, or anything about White House press practices or operations. Wilson states that "it is reasonable" to expect similar results from the White House's implementation of a similar policy, but she does not purport to know much about the White House or the President's decision here. Thus, it matters little that even if, after discussions with people who work there, she thinks that the decision "would be effective in reducing the amount of information that is published that undermines national security." She also attests—in conclusory fashion—that based on three reporting incidents memorialized in the September 22 letters, the three media organizations here have demonstrated a "willingness" to publish sensitive information relating to national security—and more specifically, the security of the White House, the President, and other senior officials. But she offers no further specifics.

Viewed in light of the whole record, neither the September 22 letters nor the Wilson Declaration suggest that President Trump would have revoked Plaintiffs' hard passes and banned them from the White House even in the absence of the sort of reporting about him that he criticized when he announced the ban. They do not suggest that a ban based on national security concerns was in the works before President Trump made his announcement.

The "reporting incidents" described in the letters stretch as far back as a year and a half. And to repeat, one of the reporters here had her hard pass renewed six months after publishing a story in January 2026 titled "Inside Plans to Rebuild the 'Top-Secret' Bunker Beneath the White House East Wing." Moreover, even accepting Defendants' claims that these incidents damaged national security in some way—a proposition that, as discussed below, they have not really tried to support with evidence here—such reporting is commonplace, for better or worse. Finally, it seems likely that if President Trump or another official would have banned Plaintiffs from the White House even in the absence of their protected speech, Defendants would not have had to scramble to make their case with unsigned letters and a declarant who does not even work there.

As the Supreme Court explained in considering the government's explanation in a different context, the Court is "not required to exhibit a naiveté from which ordinary citizens are free." Freed from such a naiveté, it is not hard to conclude that President Trump likely banned Plaintiffs from the White House because he believes that their reporting is generally inaccurate and biased against him. For that reason, all told, Plaintiffs are likely to succeed on their First Amendment retaliation claim.

And for similar reasons, the court also concluded that the Administration's actions were likely unconstitutional viewpoint discrimination in a nonpublic forum (a conclusion that is consistent, I think, with the D.C. Circuit's precedents on the matter):

For all the reasons explained elsewhere, it is likely that Plaintiffs were selected by President Trump for revocation of their access to the White House press area because he believes their coverage of him and his administration is generally inaccurate and biased—in other words, it was "an effort to suppress the speaker's activity due to disagreement with the speaker's view"—rather than to vindicate any other purportedly "compelling governmental interest," including maintaining professional standards for journalists or protecting national security.

Ted Boutrous, Katie Townsend, Patrick J. Fuster, Connor S. Sullivan, and Connor P. Mui (Gibson, Dunn & Crutcher LLP) represent the media.

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No Immunity for Judge Who Locked Children in Holding Cells in Custody Case

2026-10-13T21:57:09Z

From Rockett v. Eighmy, decided today by Eighth Circuit Judge David Stras, joined by Judges Bobby Shepherd and Jane Kelly:

When Judge Eric Eighmy had courthouse officers lock two children in holding cells because they refused to leave with their mother following a custody hearing, he violated their clearly established Fourth Amendment rights….

Bart Rockett and Kami Ballard divorced in Missouri, but initially stayed together to give their two kids, who were "aspiring stars," a chance to "make it big" in Los Angeles. The children found some success in the entertainment industry, including appearing on America's Got Talent, but their parents eventually split up.

Ballard filed a petition for sole custody that landed on Judge Eighmy's desk. During a hearing several months later, the children waited outside the courtroom while their parents tried to work it out. They agreed on primary custody for Ballard, with Rockett responsible for them at the beginning of each month and "during TV pilot season."

Once the hearing was over, however, neither child was willing to leave with her. With an argument unfolding in the lobby of the courthouse, Judge Eighmy walked over, introduced himself to the children, and told them to follow him to a conference room. Once there, he informed them that they had no choice but to leave with her. A youth counselor then reinforced the point by telling them that they "ha[d] to listen to the judge." The children would not budge, even after the judge mentioned that the other option was foster care.

Frustrated, Judge Eighmy had the children follow him again, this time to a waiting area in the courthouse's juvenile division. Once there, he told someone to "[k]eep an eye on" them to "make sure they [did not] go anywhere." After disappearing for a few minutes, he led them down a hallway to two holding cells. A second threat to place them in foster care made no difference, so he had a juvenile officer "lock them up." Before they entered the cells, the officer patted them down and ordered them to remove their socks and shoes. Judge Eighmy stood by as the officer locked the doors behind them.

With the children in their separate holding cells, Judge Eighmy took a seat in a nearby office. After what "felt like forever," the officer opened the cell doors for Judge Eighmy, who asked them one more time whether they would leave with their mother. This time, they both nodded yes, so he let them go. From start to finish, the time spent in the holding-cell area was between twenty and forty minutes.

Following these events, Rockett sued in federal district court for, among other things, a violation of the children's Fourth Amendment rights…. [T]he jury awarded the children $5,000 each on their Fourth Amendment claims. From there, the district court declined to reduce the verdict and added $326,637.22 in attorney fees….

The procedural posture is a bit complicated, but the court denied both judicial immunity (based on an earlier panel decision on the issue) and qualified immunity:

Judge Eighmy violated the Fourth Amendment only if he seized the children and did so unreasonably. Locking the children up after the custody hearing was both….

Not every seizure … violates the Fourth Amendment. To the contrary, "[ ]reasonable" ones, like lawful arrests supported by probable cause, do not. But here, Judge Eighmy did not have "probable cause to believe that [the children had] committed" an offense, much less one that justified placing them in a holding cell. Rather, their only misdeed was one every parent knows well: resisting authority. Even in the context of legal-custody proceedings, refusing to leave with a parent is not a jailable offense. Nor were there "exigent circumstances" arising out of danger to themselves or others.

We have no doubt that Judge Eighmy believed he was acting in "good faith," and possibly even in the children's best interests, by detaining them. But good faith in the Fourth Amendment context is about reasonable reliance, either on binding appellate precedent or a warrant issued by a "neutral magistrate." Neither was present here. No case allows a judge to detain children in a holding cell when they refuse to leave with a parent. And a custody plan is no substitute for a warrant. In short, rough justice does not trump the Constitution….

The law in this area was also "clearly established." "[I]t would have been sufficiently clear [to] every reasonable official," Judge Eighmy included, that locking up two children for refusing to follow directions violated the Fourth Amendment. As we put it over a decade and a half ago, long before the events in this case, "[i]t is clearly established that a warrantless arrest, unsupported by probable cause, violates the Fourth Amendment." …

A reasonable judge should have known better. As we said the first time around [i.e., the first time the case went up on appeal], criminal contempt was off the table because the children were neither parties to the custody case nor present inside the courtroom. Nor could the power to punish a party for violating an injunction have provided the justification, given that Judge Eighmy never issued one….

And here's an excerpt from the 2023 decision denying judicial immunity (a separate question from qualified immunity):

Judicial immunity has been around a long time. See Yates v. Lansing (N.Y. Sup. Ct. 1810) ("The doctrine which holds a judge exempt from a civil suit or indictment, for any act done, or omitted to be done by him, sitting as judge, has a deep root in the common law."), aff'd (N.Y. 1811). In England, it served to insulate common-law judges on the King's courts from their rivals on other courts.

One of the earliest known examples involved a judge who presided over a murder trial. After it ended, he was dragged into a rival court and charged with conspiracy for his role. The prosecution ended, however, when the court recognized that the judge was "immune from prosecution … for [his] judicial act[]." …

As broad as the rule seemed to be, two exceptions narrowed its scope. The first was that judges could still be prosecuted for out-of-court "conspirac[ies]." That is, like any other citizen, judges could be haled into court for any illegal acts they committed outside the courtroom. The second was that, when judges "exceeded their authority" by considering a matter "not within their jurisdiction," their actions were … "without jurisdiction." Acting without "power and authority" eliminated the shield of judicial immunity.

As judicial rivalries began to wane, including in the American colonies, the power-and-authority rationale for judicial immunity did too. The focus shifted to protecting judicial independence: allowing judges "to act upon [their] own convictions, without apprehension of personal consequences." See Pierson v. Ray (1967) (explaining that judges "should not have to fear that unsatisfied litigants may hound [them] with litigation charging malice or corruption").

Judicial immunity continues to apply today, not only in prosecutions …, but in civil-rights actions brought under 42 U.S.C. § 1983…. The exceptions remain largely the same too. Judicial immunity can be "overcome in only two sets of circumstances": (1) when a judge takes "nonjudicial actions"; and (2) when the action is judicial, but is done "in the complete absence of all jurisdiction." …

On one end of the spectrum [of judicial action to nonjudicial action], the classic example of a judicial act is "resolving disputes between parties who have invoked the jurisdiction of a court." Other related acts qualify too, like holding litigants "in contempt," and issuing "search warrant[s]."

But those acts also have their limits. There is no doubt, for example, that judges can "direct[] police officers to bring counsel in a pending case before the court," but they cannot order the officers to beat them with their nightsticks along the way. Nor can judges wake up one day and decide to spontaneously issue a search warrant against a nosy neighbor or a political rival.

Like these examples, Judge Eighmy's decision to personally escort the kids to jail took what would otherwise be a judicial act too far. Judges have the authority to order an officer or a bailiff to escort an unruly litigant to jail. They can also pull the parties into a conference room to discuss what just happened in court.

Judge Eighmy crossed the line, however, when he personally escorted the kids to jail, stood there while they removed their clothes and belongings, and personally came back an hour later to release them. For one thing, the children were not even present in the courtroom, so he could not hold them in contempt for "[d]isorderly, contemptuous or insolent behavior." For another, judges do not do double duty as jailers. So even assuming Judge Eighmy could have ordered someone else to take the kids to jail, he could not put them there himself.

It is no answer that Judge Eighmy believes he was exercising his contempt power. To be sure, absolute immunity is available for judges who hold a litigant in contempt even when they are "not in [their] … robes, … no[r] in the courtroom itself." But here, the children were never parties, they never stepped foot in the courtroom, and Judge Eighmy personally locked them up himself. We have been unable to find any case that extends judicial immunity so far.

Judge Eighmy fares no better with his other argument: that Missouri law allows judges to enforce child-welfare statutes informally. Without question, police officers can take children into custody if they are behaving in a way "injurious to [their] welfare or to the welfare of others." But not judges, who can only order others to "[t]ake charge of children before and after" a juvenile hearing. The point is that judicial immunity is unavailable because what Judge Eighmy did is not "a function normally performed by a judge." …

Thanks to James Creigh for the pointer.

The post No Immunity for Judge Who Locked Children in Holding Cells in Custody Case appeared first on Reason Magazine.

Will Pennsylvania's Vape Ban Create More Cigarette Smokers?

2026-10-13T20:51:31Z

Starting next week, Pennsylvania will begin enforcing a law prohibiting the sale of e-cigarettes that have not been explicitly approved by the state. Supporters argue that it will protect public health, but it seems likely to do the opposite by preventing many former smokers from accessing the products that helped them quit.

Under the law, known as ACT 57, there are currently just six manufacturers of electronic nicotine delivery systems on the approved list that can be sold in the Keystone State, meaning many popular vaping products will be forcibly removed from shelves on October 19. Retailers who violate this law will face fines of $500 for each unapproved product. A second violation within a year will result in a civil penalty of between $750 and $1,000 per day per product, and a suspension of the dealer's license for at least 14 days. A shop's third violation within a year would result in a civil penalty of $1,000 to $1,500 per day per product, and the revocation of its license.

Politicians are touting this law as the latest way to protect the public, and of course, they claim it will especially protect children. "This law is about keeping harmful products out of the hands of both children and adults who may not realize what they are consuming," said Pennsylvania Attorney General Dave Sunday.

"I applaud the legislature for their bipartisan support of Act 57 to provide this important public health safety measure to the Commonwealth."

However, not all Pennsylvania residents are enthusiastic about the law's enforcement.

"This will be largely catastrophic," Chris Hughes, the former owner of Fat Cat Vapor Shop in Williamsport, Pennsylvania, tells Reason. Hughes predicts that the restrictions will encourage consumers to purchase vaping products across state lines, creating an illicit market. "Some people that are enterprising will drive across the border to Ohio [or] West Virginia, and bring a lot of products back and sell them to other people," he says.

Hughes is right to assume that the law will create an illicit market for vaping. In June, JAMA Network Open published a report on Alabama, Oklahoma, and Louisiana—three other states with constraints similar to Pennsylvania—finding that the restrictions were not associated with lasting reductions in e-cigarette nicotine sales. By the end of April 2025, products not listed in the states' approved directories accounted for 92.1 percent of measured e-cigarette nicotine sales in Alabama, 53.6 percent in Oklahoma, and 52.3 percent in Louisiana.

For people living further from the border, Hughes says that "a lot of them will return to smoking." "Half of those people will die prematurely from smoking.…It's a tragedy, really."

Indeed, evidence shows vaping to be one of the most effective tools to quit smoking. A 2024 study published by the Centers for Disease Control and Prevention found that in 2021–2022 alone, approximately 1.2 million American adults used e-cigarettes to help them quit smoking for at least six months, representing slightly more than 40 percent of all adults who successfully quit during that period. Meanwhile, a 2026 review from Cochrane, a global health nonprofit, found that smokers are more likely to quit when using e-cigarettes than with nicotine replacement therapy: 8 percent to 10 percent of smokers using e-cigarettes may successfully quit, compared with just 6 percent using nicotine-replacement therapy.

The impending restrictions have Pennsylvania vapers stockpiling products. Hughes says he has delayed paying his property taxes to make sure he has "two to three years' worth of e-liquid and coils while this shakes out." He also spoke to an employee at a vape shop recently who told him about a customer spending $500 on e-liquid after learning about the impending ban.

For vape shop owners across Pennsylvania, the new law will make business even more difficult. Hughes was forced to close down Fat Cat Vapor Shop in Williamsport after Pennsylvania introduced a 40 percent wholesale tax on vaping products in 2016. "The whole goal of my opening the business was to help get adult smokers off of cigarettes and transition them to something that I knew for a fact was much less harmful," he says. Hughes estimates that his shop helped approximately 8,000 adults quit smoking during its three years in business.

Now, he fears other independent vape shops will suffer the same fate as his own. "Most, if not all of them, will be bankrupted," Hughes warns. "It almost takes my breath away. I'm not even sure what to say."

Pennsylvania lawmakers may intend to protect public health, but their new law risks pushing adults away from healthier lifestyle choices. As is often the case, the government restricting the choices adults are allowed to make for themselves is likely to have deadly consequences.

The post Will Pennsylvania's Vape Ban Create More Cigarette Smokers? appeared first on Reason Magazine.

The Shane Gillis SNL Backlash Is Really Stupid

2026-10-13T20:18:31Z

Shane Gillis is an actor and comedian. He first came to my attention in September 2019, when he was hired to be a new cast member on Saturday Night Live—and then abruptly fired after it was revealed that he had (gasp) told offensive jokes. (SNL creator Lorne Michaels subsequently said that the network forced him to fire Gillis, and he thought the whole controversy was stupid.)

Since then, Gillis's career has really taken off, to the extent that he has repeatedly returned to SNL as a guest host. He did so again on October 10, delivering a monologue in which he made the following observation: "I haven't been to the gym in so long, I didn't know women just dress like whores now."

Shane Gillis' monologue! pic.twitter.com/ky6fVtWBx9

— Saturday Night Live (@nbcsnl) October 11, 2026

Some people are really mad about that joke, including the actor Dan Levy, who called Gillis a misogynist and implied that this sort of joke was emboldening men to treat women as objects—and to sexually assault them.

"It's complacency that has created the environment in which women are sexually assaulted," said Levy.

He was not the only one to make this claim. On The View, Sara Haines echoed Levy's criticism and said that such language—the word whore in particular—was demeaning.

"I'm not saying a joke makes an assault, but it makes it much easier to look at another human as an object," she said.

This is unpersuasive.

I might understand why people would take offense if Gillis consistently singled out women for unrelenting abuse. When it comes to humor, context is everything, and a harmless joke can come off as mean-spirited if it seems targeted.

But in that very same monologue, Gillis denigrates men, gay men, his sisters, and himself—repeatedly. He admits that he's fat and ugly. That's the basis of the humor. It does not suggest that he has some problem with women or enjoys laughing at their expense and solely their expense. He's doing observational comedy, and no one is spared, not even Gillis. He even makes a joke about how he might unintentionally come off as threatening to women, because he's a big ugly guy.

It would be weird if women wearing skin-tight clothing at the gym was for some reason an off-limits subject for comedians. Why? It's OK to insult men's appearance, but not women's? Is that really the standard? Of course not.

Indeed, it is trivially easy to find examples of liberal-coded comedians (Gillis is one of those right-coded, anti–political correctness, Joe Rogan types), mocking the appearances of specific women. Jimmy Kimmel's recent monologue went after Katie Zacharia, the Trump administration's new press secretary, for her looks. Kimmel insinuated that she's a dumb blonde who was picked just because she's attractive. He even showed a photo of her at the gym, dressed semi-provocatively!

You know how the left is trying to cancel Shane Gillis for his SNL remarks about women at the gym, well, Jimmy Kimmel puts up a picture of Katie Zacharia at the gym, "Oh, wait, just kidding. This is the new press secretary, former Newsmax commentator Katie Zacharia, seen here,… pic.twitter.com/ANYeqhfVev

— Alex Christy (@alexchristy17) October 13, 2026

Was Kimmel inviting sexual violence against Zacharia? Of course not. It would be ludicrous to pretend that this joke was somehow out of bounds.

The same goes for Gillis, though.

The Hollywood Reporter writes that Gillis's brand of humor just isn't a good fit for SNL, which has become a show by liberals, for liberals, and aimed at skewering the Trump administration. That's fair enough: Personally, I didn't think the Gillis monologue was particularly funny, though I am well-accustomed to consuming SNL in stone-faced silence. I find about 99 percent of the skits are cringe and humorless. It's not for me.

But I do object to the assertion that a one-off joke about the way women dress is out of bounds. I thought we all agreed that Woke 1 was crazy?

The post The Shane Gillis SNL Backlash Is Really Stupid appeared first on Reason Magazine.

Submit Your Articles to the Journal of Free Speech Law, Before You Circulate Them to the Law Reviews

2026-10-13T19:30:40Z

Our peer-reviewed Journal of Free Speech Law, which is now five years old, has published over 150 articles, including by Jack Balkin (Yale), Mark Lemley (Stanford), Jane Ginsburg (Columbia), Philip Hamburger (Columbia), Christopher Yoo (Penn), Stuart Benjamin (Duke), Andrew Koppelman (Northwestern), and many others—both prominent figures in the field and emerging young scholars, including ones who didn't have a tenure-track academic appointment. (This list doesn't include our reprinting others' symposia, which have also included many other top scholars, such as Robert Post, Mark Tushnet, Geoffrey Stone, Lee Bollinger, Jeremy Waldron, Danielle Citron, Genevieve Lakier, and more.)

The articles have been cited so far in 11 court cases, over 2000 articles (using Google Scholar counts), and at least 100 briefs. And note that all the articles have only had five years or less to attract these citations.

I expect that many authors are planning to submit articles on free speech to the usual law reviews when the submission cycle restarts in August. But if you submit exclusively to us before that, we will give you an answer within 14 days; and then if you'd like to have it published quickly, we can publish it in within a few months, if it's sufficiently clean and cite-checked by your research assistant. This means your article can be published by us, if it's accepted, almost a year (or more) before it would be published by the law journals.

Of course, also please pass this along to friends or colleagues who you think might be interested. Note that the submissions don't compete for a limited number of slots in an issue or volume; we'll publish articles that satisfy our quality standards whenever we get them.

All submissions must be exclusive to us, but, again, you'll have an answer within 14 days, so you'll be able to submit elsewhere if we say no. Please submit an anonymized draft, together with at https://freespeechlaw.scholasticahq.com/. A few guidelines:

Instead of a cover letter, please submit at most one page (and preferably just a paragraph or two) explaining how your article is novel. If there is a particular way of showing that (e.g., it's the first article to discuss how case X and doctrine Y interact), please let us know.
Please submit articles single-spaced, in a proportionally spaced font.
Please make sure that the Introduction quickly and clearly explains the main claims you are making.
Please avoid extended background sections reciting familiar Supreme Court precedents or other well-known matters. We prefer articles that get right down to the novel material (if necessary, quickly explaining the necessary legal principles as they go).
Each article should be as short as possible, and as long as necessary.
Like everyone else, we like simple, clear, engaging writing.
We are open to student-written work, and we evaluate it under the same standards applicable to work written by others.

We publish:

Articles that say something we don't already know.
Articles with all sorts of approaches: doctrinal, theoretical, historical, empirical, or otherwise.
Articles dealing with speech, press, assembly, petition, or expression more broadly.
Generally not articles purely focused on the Free Exercise Clause or Establishment Clause, except if they also substantially discuss religious speech.
Articles about the First Amendment, state constitutional free speech provisions, federal and state statutes, common-law rules, and regulations protecting or restricting speech, or private organizations' speech regulations.
Articles about U.S. law, foreign law, comparative law, or international law.
Both big, ambitious work and narrower material.
Articles that are useful to the academy, to the bench, or to the bar (or if possible, to all three).
Articles arguing for broader speech protection, narrower speech protection, or anything else.

The post Submit Your Articles to the Journal of Free Speech Law, Before You Circulate Them to the Law Reviews appeared first on Reason Magazine.

Trump Fired Kimberly Guilfoyle for Influence Peddling That Pales Next to His Presidential Profiteering

2026-10-13T18:45:28Z

Kimberly Guilfoyle today resigned from her position as the U.S. ambassador to Greece shortly after the White House confirmed that President Donald Trump had asked her to do so. The main provocation seems to have been Guilfoyle's alleged influence peddling, which reportedly featured a request that Republican donor Eric Deters pay off her $100,000 American Express bill, in exchange for which she promised him special access to "Trump world."

The president signaled his displeasure on Monday, saying "we're looking at" axing Guilfoyle, his son's former girlfriend, because "we're not happy." On Tuesday, Trump added that "we didn't like what we were reading." That reaction is not surprising, since Guilfoyle would have been horning in on Trump's territory by trying to sell access and use her office for personal gain. That's his thing.

Consider Trump's attempts to promote the memecoin that he launched three days before beginning his second term. That April, the top 220 $TRUMP holders were invited to "an intimate private dinner" with the president on May 22. The "top 25 coin holders" were promised "an Exclusive Reception before Dinner with YOUR FAVORITE PRESIDENT," plus a "Special VIP Tour" of the White House the next day. The coin's price, which after an initial surge had fallen dramatically since Inauguration Day, rose by more than 50 percent immediately after that announcement.

"Since the announcement, crypto investors around the world have raced to expand their holdings of $TRUMP," The New York Times reported 10 days before the dinner. "Certain buyers, in interviews and statements, have said they bought the coins or entered the dinner contest with the intention of securing an action by Mr. Trump to affect United States policy."

NBC reported that the coin investors who attended the dinner, which was held at the Trump National Golf Club in Sterling, Virginia, had collectively spent $394 million on $TRUMP. On average, that worked out to about $1.8 million a plate.

"This is my president that we're talking about, but I am willing to say that this gives me pause," Sen. Cynthia Lummis (R–Wyo.) said a few weeks before the dinner. "In abstract," Sen. Thom Tillis (R–N.C.) allowed, the event "is hard to understand." Sen. Lisa Murkowski (R–Alaska) drew an analogy: "I don't think it would be appropriate for me to charge people to come into the Capitol and take a tour."

Donald Sherman, executive director of Citizens for Responsibility and Ethics in Washington, was blunter. "This is one of the most blatant and appalling instances of selling access to the presidency I've ever seen," he said.

Compared to that episode, the controversy over the income that Trump's hotel in Washington, D.C., received from influence seekers during his first term might seem tame. But it raised similar ethical questions, albeit in a slightly more subtle way.

The Trump International Hotel's customers included Republican political organizations and a long list of trade groups, such as the National Mining Association, the Independent Petroleum Association of America, the National Confectioners Association, and the Vapor Technology Association, whose interests might be served by currying favor with the president. The hotel also attracted business from the governments of foreign countries, such as Kuwait, Bahrain, Saudi Arabia, Azerbaijan, Malaysia, and Romania, that likewise may have been investing in Trump's good will.

"Believe me, all the delegations will go there," a "Middle Eastern diplomat" told The Washington Post after Trump's election. "Why wouldn't I stay at his hotel blocks from the White House, so I can tell the new president, 'I love your new hotel!'" an "Asian diplomat" said. "Isn't it rude to come to his city and say, 'I am staying at your competitor'?" The Embassy of Kuwait, which had previously held its annual National Day celebration at the Four Seasons, reportedly canceled its reservation there and switched to the president-elect's hotel under pressure from the Trump Organization.

Trump saw no problem with any of this. "The law is totally on my side," he told The New York Times in November 2016. "The president can't have a conflict of interest." He reiterated that take at a press conference nine days before his inauguration. "I have a no-conflict situation because I'm president," he said.

Trump nevertheless said he would donate the profits from money spent by foreign governments at his hotels to the U.S. Treasury. But that solution did not address the money he was taking in from various domestic interest groups or his ability to enrich himself by encouraging Republican organizations or other federal officials to patronize his businesses.

One example of the latter: Vice President Mike Pence and his party stayed at Trump's golf resort in Doonbeg, Ireland, during an official trip in 2019. Although Trump insisted he "had nothing to do" with that decision, critics perceived a violation of the Domestic Emoluments Clause, which says the president may not receive additional compensation from the federal government beyond his official salary.

Trump later said he regretted his attempts to address conflicts of interest during his first term, including his promise that the Trump Organization would avoid new foreign business deals. "I prohibited [my sons] from doing business in my first term, and I got absolutely no credit for it," he told The New York Times 12 days before his second inauguration. "I didn't have to do that, and it's really unfair to them." The lesson he drew was that "nobody cared."

Consistent with that assessment, Trump has thrown all caution to the wind during his second term, capitalizing on his position to rake in millions of dollars by hawking all manner of presidentially branded merchandise, ranging from bibles to cologne; obtain a $400 million "palace in the sky" from the government of Qatar; extort $1 billion in pro bono legal work from disfavored law firms; earn billions from the same cryptocurrency industry he was simultaneously deregulating; and arrange a sweet IRS immunity deal that could save him more than $100 million in back taxes, interest, and penalties. Any worries about unseemly profiteering by Trump's family are long gone, as evidenced by federal contracts with businesses backed by his sons and highly lucrative foreign deals negotiated by his son-in-law.

Compared to all of that, the $100,000 that Guilfoyle allegedly sought in exchange for using her influence with the Trump administration to help Deters looks like pocket change. Her real sin, one suspects, was failing to offer her boss a piece of the action.

The post Trump Fired Kimberly Guilfoyle for Influence Peddling That Pales Next to His Presidential Profiteering appeared first on Reason Magazine.

Interesting Criminal Case on Proving Intent to Cause Fear, Stemming from Confrontation at Protest

2026-10-13T19:12:37Z

From State v. Elavsky, decided yesterday by Minnesota Court of Appeals Judge Kevin Ross, joined by Judge Elise Larson:

Neil Elavsky expressed his opposition to a social cause that was the subject of an outdoor fundraising event by posting leaflets on the windshields of cars near the event, and he confronted a supporter of the cause after he saw her removing his posted leaflets. He rushed toward her, demanded she return the removed leaflets to him, and grabbed them from her hand when she refused.

After the woman claimed that Elavsky scratched her finger when he snatched the leaflets from her, the state charged him with fifth-degree assault (fear), fifth-degree assault (harm), and disorderly conduct. A jury acquitted him of assault (harm) but found him guilty on the other charges, and the district court convicted him of assault (fear). Because the record contains insufficient circumstantial evidence to prove that Elavsky intended to cause the woman fear of immediate bodily harm, we reverse the assault conviction ….

Up to 5,000 supporters, including the employees of business sponsors, of the National Alliance of Mental Illness (NAMI) gathered at Minnehaha Park in Minneapolis one morning in September 2023 to participate in a fundraising march. An altercation at the event resulted in the state charging Neil Elavsky with fifth-degree assault (fear), fifth-degree assault (harm), and disorderly conduct. At Elavsky's trial, the jury heard evidence of the following account.

Two NAMI supporters, whom we will call "June" and "Lynn," names we have randomly chosen in the interest of their privacy, were employees of a large health-insurance company and arrived early to set up a picnic area and booth to greet their participating coworkers and provide information about their employer. Elavsky, who opposes NAMI's cause, was also present at the event. Elavsky and a companion had previously protested NAMI by distributing windshield leaflets that criticized NAMI and urged readers not to donate to it.

Lynn, who "[does not] agree with what the flyers were stating" and had remembered Elavsky and his companion from their activity at prior NAMI events, had previously complained about the leaflets to NAMI's executive director. She saw Elavsky's companion at about noon distributing leaflets and asked him not to place a leaflet on her car. June saw Elavsky during the event, "shouting very, very loudly" with a "big, full, bold voice."

The event neared its end at about 2:00 p.m., and Lynn saw that her car had been tagged with a leaflet. She asked June to remove the leaflet from her car and from a different person's car. June did so, and she started walking toward a trash can. Elavsky approached June from behind saying, "Give me those" and "That's private property. Give me that back." He appeared to June to be "very agitated" and, according to her, spoke to her in the same "big, bold, boisterous" voice she had heard him using earlier.

June turned toward Elavsky, but she did not hand him the leaflets. Instead, she kept them in her hand at her side. She argued, "It's not private property. It's been distributed. It's public property." Elavsky "lurched" toward June, who recounted, "[A]ll of a sudden I felt his arms going around me, reaching for the flyers that he claimed were private property." At that point, the two were chest to chest, and June could feel Elavsky's breath on her face. She said, "[Elavsky] grabbed my hand and my arm … to grab those flyers out of my hand." She said that he "grabbed the two flyers that [she] had in [her] hand, out of [her] hand, and then he turned to walk away." She acknowledged that Elavsky never shoved, hit, or raised his arms toward her.

The prosecutor asked June at least five times how or what she felt during her encounter with Elavsky. She answered that she "really didn't have any feelings"; "[k]ind of more of a shock than anything else"; "not understanding why this gentleman is approaching me like this"; "angry"; "very violated." Even after the prosecutor clearly tried leading June to the answer he was fishing for, with, "[June], as far as being fearful, did you feel fear at that moment," June still did not say that she feared Elavsky would harm her during the incident….

The court held that there was insufficient evidence that Elavsky acted "with intent to cause fear in another of immediate bodily harm," which was required for the assault-by-fear charge (Elavsky hadn't contested his conviction on a disorderly conduct charge):

The state did not offer direct evidence that Elavsky had this specific intent, relying instead on circumstantial evidence. When an element of a conviction rests on circumstantial evidence, we … [consider] whether the reasonable inferences drawn from the circumstances proved are, as a whole, not only consistent with the defendant's guilt but also "inconsistent with any rational hypothesis other than guilt." Without any deference to the verdict, if we conclude that the circumstances proved allow for a reasonable hypothesis inconsistent with guilt, the evidence is insufficient and we will reverse the conviction….

The state is correct that the circumstances proved reasonably support an inference that Elavsky intended to cause June fear of immediate bodily harm. We can infer that a person intends the natural and probable consequences of his actions. Elavsky's angry demeanor, his leafletting and loud expressions of disagreement with NAMI's cause throughout the day, his lurching approach toward June while demanding that she return the leaflets to him, and his abrupt entry into her personal space to the point of chest-to-chest contact would together allow a reasonable person to infer that he might have specifically intended his actions to cause June to be immediately afraid that he would injure her.

That June did not testify that Elavsky's actions in fact caused her to fear immediate injury—despite multiple failed attempts by the prosecutor—is not a basis for us to conclude otherwise. This is because evidence that the victim felt fear is neither necessary nor sufficient to prove that the defendant intended to cause fear….

But we are likewise satisfied that the circumstances proved also support a reasonable inference other than guilt. Elavsky argues convincingly that one can reasonably infer from the same circumstances that he intended only to retrieve the leaflets from June and nothing more. Elavsky is a committed NAMI protester who distributed hundreds of leaflets on the day of the incident, just as he had in the past.

The uncontradicted testimony established that he had already been loud and angry in his protesting long before he saw June remove the leaflets. He demanded that June return what he described as his property and grabbed them from her after she disagreed about who owned them. June described his actions in reaching around her only as intended "to try to get the flyer[s]" from her.

Elavsky ended his encounter with June immediately after he got the leaflets back, turning promptly to walk away. June then moved in front of Elavsky, directly confronting him about her finger. All the circumstances considered as a whole support the alternative inference that Elavsky's only actual intent was to get the leaflets back from June. This is a reasonable inference of a hypothesis other than guilt.

Judge Lisa Beane dissented:

Elavsky was agitated and shouting when he approached June—a woman he did not know—and demanded that she give him two flyers she was holding in her hand that Elavsky claimed were rightfully his. When she did not immediately do so, Elavsky wrapped both his arms around her body so that their chests were touching, and she could feel his breath on her face. He grabbed her arm, and he forcibly took the flyers from her hand. Although June did not use the word "fear" to describe how Elavsky's conduct made her feel, she described feeling the need to defend herself against his aggressive behavior and feeling unnerved and disconcerted. Elavsky is physically larger than June in both height and weight.

These circumstances, I believe, foreclose the possibility that Elavsky did not intend to cause June fear—that is, they are inconsistent with any reasonable hypothesis other than guilt. Elavsky argues that the circumstances support "the reasonable inference that he exclusively intended to retrieve his flyers without causing fear." Elavsky clearly intended to retrieve the flyers, but the only rational inference from the means he chose to achieve that goal is that he intended to cause June fear of bodily harm.

As the majority notes, we can infer that a person intends the natural and probable consequences of their actions. The natural and probable consequence of an agitated, larger man approaching a smaller woman who is a stranger to him, addressing her in a "very loud" and "intimidating" voice, demanding that she do as he says, and then forcefully grabbing around her body with both arms is that the woman will experience fear of immediate bodily harm. Given Elavsky's actions, it is not reasonable to infer that he intended a different result.

Stated differently, the only reasonable inference regarding Elavsky's intent that can be drawn from the evidence presented at trial, when viewed in the light most favorable to the verdict, is the one the jury drew: that Elavsky acted with the purpose of causing, or with the belief that he would cause, June fear of bodily harm.

The majority responded:

The dissent acknowledges that the circumstances proved demonstrate that "Elavsky clearly intended to retrieve the flyers" but posits that causing June to fear bodily harm was "the means he chose to achieve that goal." We are confident instead that the circumstances proved as we have identified them, or as the dissent has listed them, do not eliminate the reasonable inference that retrieving the flyers was his exclusive objective. The dissent points out that "Elavsky was agitated and shouting when he approached" June. But the evidence showed that he was agitated and shouting both long before the confrontation began and after it ended, strongly suggesting that his agitation and shouting had a purpose wholly independent of causing fear.

The dissent highlights Elavsky's size relative to June's, but his size by itself says nothing about intent to cause fear and nothing in the record indicates that he intended to use his size in any particular way. The dissent especially emphasizes that Elavsky got physically close to June and forcefully and immediately removed the flyers from her—circumstances that most clearly show that he intended to retrieve the flyers from June by force, not that he intended to retrieve them by fear. Again, although one might reasonably infer that Elavsky wanted to cause June to fear bodily harm, we simply disagree with the dissent's conclusion that this is "the only rational inference." …

Erik I. Withall (St. Paul Assistant Public Defender) represents defendant.

The post Interesting Criminal Case on Proving Intent to Cause Fear, Stemming from Confrontation at Protest appeared first on Reason Magazine.

Code Games 2.0

2026-10-13T18:15:03Z

Happy Tuesday, and welcome to another edition of Rent Free. This week's newsletter includes stories on:

The Trump administration's latest strategy for boosting manufactured housing construction.
Anti-pot activists' use of California's environmental review law to stop new cannabis facilities.
Yet another data center backlash in the heart of data center country.

Chassis Gone but Not Forgotten

Building codes for traditional site-built housing are typically set by states or local governments. Manufactured housing, which is built in off-site factories and then delivered as a completed unit to its final destination, is controlled by building codes set by the U.S. Department of Housing and Urban Development (HUD).

One major piece of direct deregulation in the 21st Century Road to Housing Act, which became law in July, was the elimination of the HUD code's requirement that manufactured housing sit on a permanent steel chassis.

Wonks debate just how burdensome this rule was and how responsible it was for causing a major decline in the production of manufactured housing.

Regardless, no one believes that the requirement did anything but raise costs for what was once a major source of affordable housing.

While Congress' new housing law officially eliminates the chassis requirement, actually implementing this deregulatory change will require a number of additional federal rules and further local and state deregulation.

The Trump administration got the ball rolling on the former last week, when HUD unveiled its "Next Generation Manufactured Housing Action Plan."

It announced HUD's plan to begin crafting new construction safety and installation standards for now-permitted chassisless manufactured housing. The Road to Housing Act requires this rule change, but does not set a deadline for when it needs to be done.

Additionally, HUD announced its plan to begin rulemaking on creating new energy efficiency standards for manufactured housing, as required by the new housing law. This must be completed by July 2027.

That's the same deadline for states to submit certifications to the federal government that they've changed their own regulations on manufactured housing to conform to the new federal rules that no longer require a chassis.

These rule changes will all take time. We can at least be sure they will happen, given that the changes are required by the new housing law.

A potential bottleneck, as always, will be local zoning codes that are not directly impacted by Congress' reforms.

Many localities still define manufactured housing as a home that's built with a permanent chassis. That language could end up blocking manufactured homes constructed without a chassis under the new standards.

Another plank of HUD's action plan is to provide "stakeholders" with information on zoning for manufactured housing. The 21st Century Road to Housing Act also creates various financial incentives for localities to update their zoning codes to allow for more housing.

That is to say, carrots can still be brought to bear to ensure that local deregulation happens. But voluntary action on the part of localities or additional preemption of local zoning laws by states will still be required for federal chassis reform to be fully realized.

Anti-Pot Group Uses Environmental Law To Block New Cannabusiness Zoning Rules

Recreational marijuana was legalized by California voters a decade ago. The rule changes needed to allow entrepreneurs to grow and sell the stuff are still a work in progress.

Back in August, after five years of work, San Diego County at last certified its environmental review of zoning changes that would dictate where commercial cannabusinesses like dispensaries and grow operations could set up shop in unincorporated areas.

That certification has merely led to another roadblock.

In September, the group No Skunk Butts filed a lawsuit under the California Environmental Quality Act (CEQA) to block implementation of the new zoning rules.

CEQA requires local governments to study the environmental impacts of discretionary actions they undertake, including zoning changes. Third parties are empowered by the law to sue if they believe a locality did not conduct a thorough enough review of a zoning change's environmental impacts.

As reported by Village News, No Skunk Butts alleges in its lawsuit that the county did not do enough to study cannabusinesses' potential impacts on water and air quality, as well as noise and odor.

This is hardly the first time that CEQA has been used to hamstring the expansion of California's legal cannabis industry. Local activists have frequently challenged individual permits for cannabusinesses and, as in San Diego County's case, cannabis zoning and licensing regimes.

In 2017, the California Legislature attempted to forestall some of this litigation by allowing localities to pass cannabis regulatory regimes without going through CEQA. But that reform merely shifted CEQA onto individual businesses, who'd have to do their own environmental analysis when applying for permits.

Despite legalization, California's heavy-handed regulation of the cannabis industry has enabled a large marijuana black market to persist. CEQA is a major, if underdiscussed, part of that story.

A Data Center Backlash on the Edge of Data Center Alley

Last week, the Board of Supervisors of Fauquier County, Virginia, passed a raft of new restrictions on data center construction.

The new rules eliminate by-right zoning for data centers, meaning new projects will be required to obtain special, discretionary permits. The reforms also limit data center construction to a single zone within the county, reports InsideNoVa.

Prior to the changes, data centers were allowed to be built by right in business parks countywide.

The country is in the middle of a massive backlash against data center construction. It's thus not inherently surprising that a county government would pass new rules on data center construction.

It is conspicuous that Fauquier County would do so. The jurisdiction sits just to the south of Loudoun County, home to the world's largest concentration of data centers. (It's been nicknamed "data center alley.")

Data centers have been a massive economic driver in Northern Virginia and a massive fiscal boon to the Loudoun County government, which has taken in so much revenue from these facilities that it's been able to cut property taxes on homeowners.

Loudoun County itself recently eliminated by-right zoning for data centers, which it once regulated like office spaces.

It doesn't bode well for the industry if jurisdictions that once welcomed data centers with open arms, and profited handsomely from them, are moving to restrict new facilities.

Quick Links

Tim Carney on the surprising walkability of America's OG car-oriented suburb.
The strange socialist-libertarian fusion that is Vancouver, Canada's First Nation housing developments.
Texas landowners in the way of President Donald Trump's border wall fight the federal government's eminent domain efforts.
A British charitable foundation calls on the government to use rent control to reduce the cost of affordable housing subsidies. Road to Serfdom, anyone?

The post Code Games 2.0 appeared first on Reason Magazine.

No, Giving Immigrants Research Jobs Is Not Fraud

2026-10-13T18:00:22Z

Vice President J.D. Vance—who is heading the Trump administration's efforts to eradicate fraud—has set his sights on another alleged form of wasteful spending.

Last week, Vance announced a probe into nine universities over alleged J-1 visa fraud as part of the Trump administration's broader crackdown on foreign worker programs. Vance's central complaint is that the named universities—which include Harvard, Stanford, and the Massachusetts Institute of Technology—are "employing J-1 visas for federally funded grants at a rate of about 61 percent" compared to the "national average of just 38 percent."

"Something weird is going on at these universities," Vance added. "They're using these visas way too much. They're using them to undercut the wages of American grad students and American researchers, and it simply has to stop." Naturally, he figured that this warranted a fraud investigation.

Labor Department Inspector General Anthony D'Esposito, who is leading the investigation, had some harsh words for universities. "Improperly used J-1 visa classifications to avoid employment obligations, exploit taxpayer-funded programs, and undermine American workers will not be tolerated." He said, "I don't care how prestigious a university thinks it is. Break the law and screw the American people, and I will personally cuff you in the university square." He also raised concerns that universities were exposing American research to foreign adversaries, specifically China.

The press conference sounded more like an indictment of the J-1 program than of fraud. Unlike the H-1B visa—which allows employers to sponsor high-skilled foreign workers—the J-1 is more like an exchange program than a dedicated work visa; it doesn't require employers to pay the prevailing wage or visa holders to pay Social Security or Medicaid taxes within the first two years. Universities using the program to hire cheaper foreign labor is simply a feature of the program.

The real picture is much muddier than Vance cited figures suggest. The inspector general's announcement states that "approximately 61 percent of postdoctoral workers and researchers supported by federal grants at the nine universities are foreign nationals, compared to 38 percent at other universities." Foreign nationals could include H-1B holders and other visa categories, not just J-1s as Vance claimed. Additionally, the 38 percent figure comes from unspecified "other universities," rather than the national average.

D'Esposito had a fiery tone, but neither he nor Vance pointed to a single instance of a university breaking the rules. Their evidence is merely a statistic showing these schools, which are elite research institutions, hire a lot of foreign researchers. Vance's primary objection isn't that these universities have broken the law; it's that they are hiring foreigners instead of Americans, undermining his protectionist agenda.

Opposition to visa programs is, unfortunately, found on both the left and the right. In his first term, President Donald Trump enacted a slew of restrictions that complicated the H-1B visa application process and increased denial rates to 24 percent in FY 2018 (up from 6 percent in FY 2015). In 2020, the administration was forced to rescind key policies behind those rising denials after a federal judge ruled they hadn't followed the required rulemaking process. In September last year, Trump imposed a $100,000 fee on H-1B petitions. A federal judge struck it down in June, saying it exceeds the president's authority and violates the separation of powers.

Other presidents have used federal power as leverage against higher education. But Trump's war on universities—including the freezing of federal funds for universities like Columbia and Harvard for alleged instances of antisemitism—is mostly unprecedented. These actions are indicative of a more enduring problem: Federal dollars come with federal influence, and as long as universities depend on federal funding, they will remain at Washington's mercy. If universities want lasting independence, the answer isn't to reduce their use of the J-1 visa. It's to get off the federal teat altogether.

The post No, Giving Immigrants Research Jobs Is Not Fraud appeared first on Reason Magazine.

Claiming Video Was "Deepfake" Not Enough to Require Excluding It, Even Absent Evidence of Who Recorded It

2026-10-13T17:46:10Z

From State v. Amyda, decided Friday by the Iowa Supreme Court, in a unanimous opinion by Justice Edward Mansfield:

In this sexual abuse case, we are asked to decide whether the district court erred in admitting a video. The video graphically shows the defendant abusing the victim. However, there was no chain-of-custody evidence connecting the video to the defendant. The victim was asleep at the time and could not personally attest to the abuse shown in the video. And the defendant claimed "deepfake."

On our review, we conclude that the district court did not abuse its discretion in admitting the video. The video came to the victim's attention about a month after the defendant had been in the victim's bedroom. The video appears to be taken by the perpetrator of the abuse at close range using a cellphone. It shows the victim sleeping, but she testified in detail that she recognized her bedroom, her bed and furnishings, the clothing she had been wearing, her legs and genitalia, and the defendant's tattooed hand—all as they had been that evening.

Collectively, these circumstances were enough to admit the video. And the defendant's mere speculation that the video was a deepfake was not enough to bar its admission….

The court concluded that the video had been adequately authenticated:

To authenticate the video, the State had to "produce evidence sufficient to support a finding that the item is what the proponent claims it is." Iowa R. Evid. 5.901(a). According to Iowa Rule of Evidence 5.901, one example of sufficient evidence is "[d]istinctive characteristics and the like." That is, evidence such as a video may be authenticated by its "appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances."

We applied this circumstantial-evidence principle in State v. Holderness (Iowa 1980). Holderness, which predated the adoption of the Iowa Rules of Evidence, was a burglary case involving the admissibility of a photograph. There the victim awoke to find that his garage doors were open and some of his property was missing. One of the missing items was a briefcase that contained, among other things, an Instamatic camera. Two hours later a boy in the neighborhood brought by a roll of Instamatic film that he had found. The film was developed. It turned out to have eight photographs the victim had taken recently in the course of his work and two additional photographs. One of those two photographs showed the defendant on his knees in the victim's backyard, near the garage, holding the briefcase partially open.

We held in Holderness that the photograph portraying the defendant with the briefcase outside the garage was properly admitted even though no one could directly confirm its accuracy or testify as to how it was taken. We began our discussion by observing,

Conventionally these foundation elements [for admission of a photograph] are shown by the direct testimony of a person who, although perhaps not connected with the photography, observed the scene and testifies that the picture fairly shows it, or who describes the photographic process employed and testifies it produces accurate pictures. These of course are the easier cases.

The harder cases are those in which direct testimony is not available and the proponent must rely on circumstances to lay a foundation for admission.

This, of course, was one of the "harder cases." … [W]e held [in Holderness] that the photograph could be authenticated based on a series of circumstances. The roll of film had been recovered nearby, the morning after the burglary. The victim had taken the previous photographs on the roll but not the ninth and tenth ones. The victim could identify his boat and his trash-can rack in the photograph in question. He testified that—apart from the presence of the defendant—the scene corresponded to the outside of his garage at the time of the burglary. And the victim further testified that the camera in the past had taken reliable photographs that had never come back modified, altered, or changed.

A few years later, … we … [upheld] the admission of photographs in another case. There the defendant was charged with having committed sexual abuse on three children—two girls and one boy. At trial, a number of photographs depicting the sexual activity were admitted into evidence. Several of the photographs were admitted through the testimony of the two girls. They testified that the defendant, or one of them at the defendant's direction, had taken those photographs. They identified the defendant in the photographs. However, five of the photographs were admitted through the testimony of a detective, who had been neither a photographer nor a firsthand observer. We summarized as follows:

Although the detective was not, like the girl victims, a direct witness to the depicted activities, he had observed the defendant's bedroom where other photographs were taken and testified that the decor of the room pictured in some of the photographs was that of the defendant's bedroom. Moreover, the five photographs in question were graphically similar to the many photographs properly admitted during the victims' testimony.

We concluded that "[t]he detective's testimony about the decor of the room, together with the photographs authenticated by the victims, satisfied the foundational requirements for admissibility of the five photographs admitted during the detective's testimony." …

Turning to the facts of this case, we agree with the district court and the court of appeals that the State presented sufficient evidence to authenticate the video.

The video appears to be taken with a cellphone held in the right hand of the person whose left hand is visible committing sexual abuse. Clara had communicated with Amyda by messaging him that evening; presumably, he would have brought his cellphone to their encounter. Also, Clara fell asleep in her bedroom with Amyda after they both had been drinking; the video shows her face and closed eyes as she is sleeping soundly. Further, Clara identified Amyda's tattooed hand, her bedroom, her bed and pillows, her clothing, and her legs and genitalia in the video. Indeed, the only thing in the video that Clara couldn't personally verify was the abuse itself. Moreover, the video surfaced a little over a month after May 5, and when Clara tried to communicate with Amyda about it, he blocked her.

Amyda argues that "[a]llowing an individual to authenticate a video that portrays an event by simply identifying 'distinctive characteristics' of items in the video, without more, effectively erases any protection that Rule 5.901 provides against the admission of fabricated evidence." But the circumstantial evidence here went beyond just the distinctive characteristics of items in a video. Furthermore, the distinctive characteristics here ranged from the private (Clara's bedroom) to the shockingly private (her genitalia). What third-party fabricator would have access to all that?

As the court of appeals noted, appellate cases from other jurisdictions have upheld the authentication of videos [in such situations]….

We are not oblivious to the risks of video evidence. Like the New York Court of Appeals, we recognize that "most fabricated videos 'leverage' real details from real photos and videos of real places and people, then alter the pieces the person wishes to alter to create a realistic, but manipulated, video." In re M.S. (N.Y. 2026). In In re M.S., New York's highest court ruled, over two separate dissents, that videos of sexual abuse obtained by a self-described hacker and provided to law enforcement well after the events in question—had not been sufficiently authenticated and should not have been admitted in a family court case. But here, by contrast, there are no identifiable circumstances to suggest that the video might be a deepfake.

For all these reasons, we agree that the video was properly authenticated ….

And the court likewise rejected the argument that the video should have been excluded under the so-called "best-evidence rule":

[T]he best-evidence rule … provides, "An original writing, recording, or photograph is required to prove its content, unless these rules or a statute provides otherwise." The rules also contain the following qualification: "A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate."

The State relies on this qualification to rebut Amyda's best-evidence argument. The State maintains that the video here was admissible as if it were the original because Amyda failed to raise a genuine question of authenticity. We agree with the State that Amyda didn't raise a genuine question, only conjecture.

Much of the closing argument made by Amyda's counsel urged the jury to conclude that the video was a deepfake. Yet his advocacy rested on popular culture rather than any of the evidence in the case. The closing argument began, "Is it fake? Is it real? Ladies and gentlemen, we live in the age of artificial intelligence." It continued, "In this state of artificial intelligence, people can manipulate a video to look like whatever they want to look—they want it to look like." Amyda's counsel proceeded to refer to various news stories about celebrities and other people who had been the subject of deepfake videos, including deepfake pornography.

But apart from trying to cash in on the so-called "liar's dividend," Amyda's counsel had little to work with. {The term "liar's dividend" refers to the possibility that public awareness of deepfakes will make it easier to raise doubts about legitimate evidence. See Bobby Chesney & Danielle Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, 107 Cal. L. Rev. 1753, 1785–86 (2019) ("[A] skeptical public will be primed to doubt the authenticity of real audio and video evidence. This skepticism can be invoked just as well against authentic as against adulterated content.").} The prosecutor countered as follows in her rebuttal argument:

So when [defense counsel] is wa[ ]ving around articles and talking about deepfake porn, that is not evidence, ladies and gentlemen. That is not evidence. What is evidence is what you heard from that stand.

Fake video, imagine someone to make a fake video in this matter would have to know, as [Clara] described, the intrinsic details of her body.

Unfortunately, we had to talk a lot about private matters, right? They had her stretch marks on her legs that she identified. They had her vagina and the unshaven position as she recollected. They had stubble on her legs. They had her hair positioned as such.

They had her exact clothing that she would have been wearing the night she was with the defendant, and even more so, when he parted her labia, you can see that she has coloration down there. They would have to know all those intrinsic details to make up this video. Who would know that?

Accordingly, the district court did not abuse its discretion in overruling Amyda's best-evidence objection. See State v. Christian Church (Del. Super. Ct. 2025) ("The mere suggestion that a video may have been altered does not create such a genuine issue."); Perry v. United States (D.C. 2026) (indicating that the defendant needed to provide "some basis" to think that the Instagram video was an inaccurate reproduction)….

Joshua Henry (Iowa Assistant AG) represents the state.

The post Claiming Video Was "Deepfake" Not Enough to Require Excluding It, Even Absent Evidence of Who Recorded It appeared first on Reason Magazine.

An Illinois College Tried To Cancel Its Flock Contract. Flock Refused.

2026-10-14T19:34:47Z

Flock Safety, an Atlanta-based company worth more than $8 billion, manufactures automated license plate readers (ALPRs), cameras that capture images of license plates and store them in a database that police can search.

Recently, the company has been under intense scrutiny over concerns about privacy and the cameras' capacity for misuse, leading some cities to cancel their Flock contracts. But it turns out that getting rid of Flock is easier said than done.

"When Elgin Community College hired Flock Safety to install six surveillance cameras in April 2025, President Peggy Heinrich thought they would 'enhance the safety and security of students,'" Lisa Kurian Philip reported last week at the Chicago Sun-Times.

The Chicago-area school signed up for a one-year contract with the company. It was not alone: Five of Illinois' 12 public universities, plus four of its community colleges, use Flock cameras.

But Heinrich began to have second thoughts as she learned more about how the cameras can be used—for example, Flock allowed U.S. Immigration and Customs Enforcement (ICE) to access over 80,000 of its cameras. In September 2025, ICE arrested a student near Elgin's campus.

More than half of Elgin's students are Latino, Heinrich told the Sun-Times, and enrollment began to suffer.

"In August of 2025, Flock publicly announced it would no longer conduct pilot projects with federal agencies," according to the company.

Still, Heinrich said, the school chose to end its contract with Flock "out of an abundance of caution for our students."

"Elgin Community College staff notified Flock in October 2025 that they wanted to cancel their contract and have the cameras taken down," Philip wrote. "Within a day, Heinrich said, Flock rejected the request and refused to uninstall the equipment on the basis that the company had not breached their agreement."

The school reached out again in December, offering to pay out the rest of the contract, but according to Heinrich, Flock did not respond.

Since the school no longer wanted the cameras to operate, and Flock refused to remove or disable them, officials zip tied garbage bags over the cameras on campus. But in a peculiar twist, "workers in an unmarked vehicle, which Heinrich assumed belonged to Flock, repeatedly removed the coverings."

This continued until the school's contract expired in April, when Flock finally removed the cameras.

Granted, the situation is somewhat complicated by the fact that while Elgin is a public institution, Flock is a private company.

"Per Flock contract conditions, the company retains ownership of the products it sells to cities," Caroline Haskins reports at Wired. "This means that when people damage or destroy cameras, cities are on the hook for the cost." Covering cameras with garbage bags will apparently work until Flock comes and cuts them down, but removing or disabling the cameras without the company's permission will incur fees to replace them, even if the city has already said it doesn't want them anymore.

But since the product that Flock sells is a searchable database of license plate images compiled from its interconnected nationwide system of cameras, the reality is more complicated than that.

Indeed, while Flock says repeatedly that customers own all data that their cameras capture, that's little comfort when the information is also available to any other customer with access to Flock's database.

Between June 2024 and May 2025, police in Illinois searched the Flock database over 4,000 times for immigration-related reasons, even though a state law prohibits ALPRs' use for that exact purpose. This implies the searches were done at ICE's request, meaning federal immigration authorities could access not just the license plate data in those Illinois communities, but also the thousands of communities nationwide that use Flock cameras.

It's also particularly troubling that Flock would make it so difficult for customers to end their contracts. In that, Elgin Community College is not alone: Plenty of jurisdictions have kept using Flock even after supposedly canceling the service, though it's usually the police who fight the cancellations.

In June 2025, the Austin, Texas, City Council declined to renew its Flock contract. Though the city police department supported the program, officials cited concerns about the cameras' capacity to target vulnerable communities.

But in February of this year, public radio station KUT reported that at least two neighboring towns were sharing access to the Flock database with Austin police.

In July 2025, the Board of Lucas County Commissioners in Toledo, Ohio, voted 2–1 to approve 27 Flock license plate cameras across the county, costing $250,000 over four years. But a week later, one commissioner changed his mind, citing fears of how the data would be used, and the board voted again to rescind the previous approval.

In a letter to the Lucas County prosecutor the following day, Sheriff Michael J. Navarre said the commissioners "have a legal obligation to honor this contract" and alleged that the decision to rescind it was borne out of personal animus toward him.

"I cannot sit idly by and allow them to make decisions out of spite that negatively impact the safety of my deputies and the community they protect," he wrote. To be clear, what apparently put everyone at risk was the decision not to move forward with a series of license plate cameras.

County prosecutor Julia R. Bates wrote back to the sheriff in September 2025, stating that since he had already signed the contract from the original resolution, the rescission was "void."

Elgin Community College's experience is not quite the same—in that case it wasn't the police department, but Flock itself, that refused to take down the cameras. But it's still indicative of the widening rift between those who worry about our growing surveillance state and those who apparently see it as worth the tradeoffs.

The post An Illinois College Tried To Cancel Its Flock Contract. Flock Refused. appeared first on Reason Magazine.

MLB's Salary Cap Fight Isn't About Competitive Balance, It's About Limiting Labor Costs

2026-10-13T15:55:21Z

Hello and welcome to another edition of Free Agent! It's a great week to do something nice for the furry friends in your life.

Let's get into some nitty-gritty about baseball's salary cap fight. We'll dive in with two sections on that, then move on to some new thoughts about an old video game.

Locker Room Links

"The FTC [Federal Trade Commission] Is Beginning to Probe the Sports Gambling Industry." (But not prediction markets.)
As a publicly traded sports team, the Braves are about to start paying more in taxes. Sens. Katie Britt (R–Ala.) and Raphael Warnock (D–Ga.) are trying to do something about it.
A new list of how much each team in the NFL, NBA, MLB, NHL, and MLS is worth.
People are complaining about day games in MLB's division and league championship series. I'm old enough to remember when my elders would wax poetic about World Series day games. But it's interesting to see MLB use day games on weekdays to minimize overlap while the NBA and NHL are fine with multiple playoff games at the same time.
The FBI is hiring UFC "to provide its agents with defense tactical training."
A Chinese player for Mississippi Valley State was taken into custody by Immigration and Customs Enforcement (ICE). His student visa had expired and he was on his way to visit his visa sponsor when he was detained. His lawyer said ICE forced him to sign a form for voluntary departure.
Elsewhere in Reason: My colleague Tosin Akintola covered the NFL siding against prediction markets in its legal battle (in my opinion, just to side with its sportsbook partners who are competing against prediction markets).
Thank God for the internet. Even 49ers running back Kyle Juszczyk got in on it.

I made a game where you draft your All 22 Pokemon team from randomly rolled Regions and Pokemon Types and the goal is to finish the season 17-0

So far my best record is 10-7 lolhttps://t.co/9ht5V4hiuT pic.twitter.com/5XwzOgPcSu

— Cole (@ColeThereum) October 9, 2026

MLB's Salary Cap Fight Isn't About Balance, It's About Costs

In 2025, baseball fans wanting to avoid a lockout, a salary cap, or both, were rooting for the small market, small payroll Milwaukee Brewers to beat the goliath Los Angeles Dodgers in the National League Championship Series (NLCS). The Brewers got swept. Now it's 2026, and guess what? Baseball fans wanting to avoid a lockout, a salary cap, or both, are rooting for the small market, small payroll Brewers to beat the goliath Dodgers in the NLCS. (At least the Brewers aren't getting swept this time!)

But what if none of that matters at all to the salary cap fight?

A small market World Series victory for the Brewers (19th in MLB payroll), the Tampa Bay Rays (28th), or, yuck, the Cleveland Guardians (30th) helps boost the theoretical argument that MLB doesn't need a salary cap for small market teams to succeed. But labor negotiations are not decided by debate club rules—you don't win with a better policy argument. It's all about the power dynamics and leverage of what is essentially a business negotiation between employees and employers. The policy argument might matter to public opinion, but it makes hardly any difference to leverage.

Competitive balance may not matter to the owners at all (in fact, some studies have found that salary caps don't create more balance, but revenue sharing does). The owners are almost certainly focused on keeping down their labor costs. A salary cap would likely give an immediate boost to team values—when Formula 1 teams recently agreed to a broad cap on their expenses, valuations shot up.

The lockout fight will come down to who can endure the pain the longest, and how much the "losing" side is willing to stomach what the "winning" side is offering. The billionaire owners have plenty of wealth and income from their other assets, but also don't want a lockout to crater the value of one of their biggest assets. The players have had years to save and plan for a lockout, and some can still try to lean on endorsements, merchandise, and other nonpayroll income to help them along. The owners will try to say they're showing good faith by combining their salary cap with a salary floor that would force some teams to spend more on players—but that won't appeal much to the union's player leadership, which is largely made up of high-level players who want a big payday coming out of the lockout (I see you, future free agents Tarik Skubal and Paul Skenes).

The only way public opinion might matter is if government officials decide to get involved. President Donald Trump has already made noise about taking action, and backs the owners' push for a salary cap, but it's unclear how much he can lean on negotiations. The National Labor Relations Board may end up involved—all four members were appointed by Trump (one is a Democrat who used to work for the players union). Members of Congress could threaten to take away MLB's antitrust exemption, but probably wouldn't have the votes to do it.

It goes without saying all this is incredibly frustrating for fans (as well as players who want to earn a living and teams that want to plan for the future). The lockout is going to hit baseball like a car crash that everyone saw coming from miles away. The basic bargaining positions have not changed in years, but the two sides have made basically no progress.

At least Minor League Baseball won't get locked out, and should get a major viewership boost if MLB ends up losing games.

With All the Salary Cap Scandals, Are They Even Worth It?

What's funny to me is that the MLB salary cap debate is happening in the wake of two of the biggest spending cap scandals in sports history: the Los Angeles Clippers salary cap circumvention scandal and, in soccer, the Manchester City financial scandal. You'd think the difficulty of enforcing these rules would cause some people to think twice about a salary cap, and how cheaters can ruin the integrity of the game for fans.

If MLB owners do manage to convince the players to agree to a cap, the cap's rules will make a big difference in how successful it is.

The NBA had a scandal over fake endorsement deals, the Premier League had a scandal over fake sponsorships, and hockey fans got mad every year about players coming off the long-term injured reserve list just in time for the playoffs, changing their cap hit, until the league finally closed the loophole. In multiple sports, fans from high-income-tax states complain that their salary cap limits are the same as teams in low- or no-tax states, making the latter more appealing to free agents.

Meanwhile, in the NFL—actually, it's somehow been largely scandal-free on the salary cap front for over a decade, except for a couple minor scandals.

I'm not exactly sure how the NFL manages this—maybe it's the hard cap with few exceptions, maybe it's the size of their rosters, maybe it's because many of the tactics teams use to game the cap are legal (for example, converting a "signing bonus" into base salary paid out over five years). Or maybe there is a ton of salary cap circumvention with sham side deals and the NFL just fails to catch it.

Regardless, I'm morally not a fan of teams colluding to avoid paying players their competitive market wage. We're talking about millionaires, so you might not have much sympathy. But if you had the talent and put in the hard work to earn a million fans, you wouldn't want owners to collectively diminish your wage either.

4 Years Later, Gran Turismo 7 Still Slaps

Just when I thought I was out, Gran Turismo 7 has pulled me back in. First released in 2022 (see my brief review from the time here), the game is now my go-to activity when I have free time.

A few times a week, my 2-year-old son will ask to see race cars on TV, and sometimes I will fire up Gran Turismo 7 or the latest Formula 1 game for him to watch me play (he sort of pays attention, but what he really wants is to break small pieces off my Formula 1 Lego sets, forcing me to pause each lap and reassemble them). A few weeks ago, I noticed Gran Turismo 7 has weekly challenges of five races. While working through them, I noticed that—despite having beaten most of the game's most difficult challenges on its hardest difficulty—I'd won less than 40 percent of its races.

That just couldn't stand, and now I'm trying to work through them all. AI has added a new component for me—I've used it to help with car selection, pit strategy, and tweaking of settings.

All this is to say that I'm impressed a 4-year-old video game can still make me obsessed. Kudos to the Gran Turismo 7 team for releasing several updates throughout the year with new tracks, cars, and more.

Replay of the Week

I watched this live and on replay so many times, and still can't figure out what they thought was going on. Was it a designed run play, and with what purpose? Did the players forget they didn't have any timeouts? Were the Commanders coaches running the clock low because they thought they'd have to kick it back to the Giants? I thought maybe they were trying to line it up for the kicker, but that would have involved a quick kneel followed by a spike.

The whole overtime was bonkers, and the Commanders are cowards anyway.

Jayden Daniels thought the clock would stop at 5 seconds out of respect for him pic.twitter.com/CQ16tDxL5o

— NFL Memes (@NFLMemes) October 11, 2026

That's all for this week. Enjoy watching the real event of the week, as the Grand Slam of Curling Co-op Invitational gets underway.

The post MLB's Salary Cap Fight Isn't About Competitive Balance, It's About Limiting Labor Costs appeared first on Reason Magazine.

Aaron Sorkin's New Anti-Facebook Movie Is a Stunning Act of Self-Satisfied Cowardice

2026-10-13T15:40:55Z

The Social Reckoning, Aaron Sorkin's latest jab at Big Tech, is conceived as a political and social prosecution of Facebook.

The social network and its owner, Mark Zuckerberg, in the movie's view, are responsible for the spread of misinformation, the decline of journalism, the polarization of the electorate, and the radicalization of specific individuals who go on to commit heinous acts of anti-democratic violence. In its final moments, the film strongly implies that Facebook and its engagement-boosting algorithms are directly responsible for the Capitol riot on January 6, 2021. Donald Trump, the election-losing president whose incendiary speech and repeated falsehoods about the results of the 2020 election preceded the riot, is never named in the movie. In a movie that positions itself as bold and brave, it's an omission of stunning, and revealing, cowardice.

To bring Trump into the picture would have complicated Sorkin's just-so story, in which Facebook's refusal to fact-check political ads and decision to boost engagement through a change in its recommendation algorithm are the central, and, at least within the movie's narrow frame, even sole cause of all that ails American democracy. Sorkin's story has no room for nuance or ambiguity, no interest in the larger political-social dynamics at work in the late 2010s and early 2020s, no time for disconfirming data that violates his narrative. He has found a pure villain in Facebook's founder, and that's the only story he wants to tell.

Like so many of Sorkin's films, The Social Reckoning is structured around what amounts to a trial, in this case a mock congressional hearing set up for Zuckerberg, Facebook's CEO, in advance of an appearance on Capitol Hill. The action inside that room is informed by a larger story that revolves around Wall Street Journal reporter Jeff Horwitz's (played by Jeremy Allen White) quest to understand and uncover documentation that led to his award-winning investigative series, The Facebook Files. Horwitz works with Frances Haugen (Mikey Madison), a Facebook engineer who has concerns about the company's practices and begins leaking information in hopes of causing internal change. She's an anxious, socially awkward recluse; he's a tech-ignorant reporter who ended up on the Big Tech beat. The pairing allows Sorkin to build scene after scene of exposition and explanation, in which Haugen details various Facebook technical decisions believed to have dire social consequences.

Most notable among these is an algorithmic switch to something called "MSI," or "meaningful social interactions." Essentially, the network prioritized depth of engagement over simple likes, leading to a boost in usage, as well as an increase in exposure to radical groups and content. The movie poses as a sophisticated journalistic explainer, but its core argument is quite simple: Facebook changed its algorithm in a way that benefited the company but harmed society by pushing content from hate groups and other disreputable types. That, in turn, led to January 6. Case closed.

But what if the case isn't so simple? In these pages, Elizabeth Nolan Brown has outlined the many ways in which social media algorithms, especially on Facebook, have been unjustly maligned: Instead of causing polarization by locking people into narrow political bubbles, they can offer greater exposure to opposing views and even promote democratic virtues. The supposed negative effects of tech on children are, at minimum, disputed and in most cases probably overstated; some studies suggest that tech can enhance youth mental health. It's notable that Sorkin's story uses the violent calamity of January 6—a truly dark day for America—as his climactic argument. He can't use the election of 2020, because that election was won by Joe Biden. So he falls back to the ugliness of the riot, while ignoring Donald Trump.

The movie is framed in personal terms via the story of one woman's radicalization. The woman—rich, white, entitled, casually racist during a drunken encounter with cops that she films and posts on social media—turns out to be a friend of Haugen's, which is what drives her to go public about her employer. Sorkin uses the woman as a symbol of all that Facebook has done wrong; she's a consequence of Zuckerberg's disregard for democracy and truth.

But in real life, Haugen's never-named radicalized friend was a man, not a woman, who became obsessed with conspiratorial notions about politics, not a racist social-media troll. Sorkin's film is fiction, a dramatic retelling of events rather than a just-the-facts journalistic account, so it doesn't quite need to be held to the same standard. But it's notable that he has to massage the details in order to make his point. Perhaps he's doing so in service of a deeper truth. But that deeper truth isn't strictly true.

Humans are messy and complicated, and so is democracy. But Sorkin can't handle those complications. Instead, he delivers a smug, simplistic narrative that traffics in borderline misinformation while pretending to crusade for the truth. Maybe what we really need is a reckoning with Aaron Sorkin.

The post Aaron Sorkin's New Anti-Facebook Movie Is a Stunning Act of Self-Satisfied Cowardice appeared first on Reason Magazine.

Settling the School Wars

2026-10-13T13:31:05Z

Durable changes: This midterm season, activist groups have set their sights on amending state constitutions as a way of skirting never-ending culture war battles.

In Nebraska, voters are being asked to consider "enshrin[ing] in its constitution an existing law that prohibits transgender students from playing on girls' and women's sports teams," reports The Washington Post. "It also would require school teams to be designated as male, female or co-ed." The campaign behind it, Fairness for Girls, turned in 211,000 signatures in June, and its $3.1 million in cash contributions as of July 31 came entirely from a single nonprofit, Restore the Good Life Inc.

Voters in Washington, Colorado, and Arizona will see similar measures on their ballots related to transgender athletes and what schools should allow—though these would change state law rather than constitutions. Arizona's was put on the ballot by the Republican Legislature, while Colorado's and Washington's came from citizen petitions. Transgender students who say they are girls are already barred from girls' school teams under Arizona state law; the state's Proposition 318 would now ban student athletes from using restrooms, locker rooms, and showers that don't match an athlete's sex at birth, plus extend the rules to private schools and club sports.

Meanwhile in Alabama, voters will be asked whether the state's constitution should be altered to require public schools to allow prayer—led by students—at the start of the day. The same amendment would also put the daily Pledge of Allegiance, which state law already requires, into the constitution. Students couldn't be forced to take part in the prayer and would be able to opt out of the pledge.

Interestingly, Alabama has been here before. In Wallace v. Jaffree (1985), the Supreme Court struck down an Alabama statute authorizing a moment of silence "for meditation or voluntary prayer." It's not clear why they're trying basically the same thing all over again. ("What is the oversight power of the school in something like this?" Steven P. Brown, a professor of political science at Auburn University, asked the Alabama Reflector. "If you have a kid who stands up and wants to give a prayer to Satan, there is no question the school is going to step in." It's a fair question!)

"This year has brought a total of 19 ballot initiatives related to K-12 and higher education, the most since the midterms in 2018, according to a database maintained by the National Conference of State Legislatures," reports The Washington Post. It seems like activists are growing tired of constantly relitigating culture-war issues, and instead hope to create a more durable consensus via amendments to state constitutions and voter-approved statutes that are harder for legislators to alter.

Dissent: House Speaker Mike Johnson (R–La.) has sounded off about Defense Secretary Pete Hegseth's idea of livestreaming the execution of Nidal Malik Hasan, the former Army major who killed 13 people in Fort Hood, Texas, in 2009.

Johnson says the video of the execution by firing squad could become "a recruiting tool for future terrorists," according to Johnson. "We've got to think through the policy implications of all that," Johnson told CBS News on Monday.

"I wouldn't be watching it if it was aired," Johnson said. He added that someone should tell the White House "what some of my colleagues think about that, and not everybody's in favor of the idea." Reps. Austin Scott of Georgia, Tom Barrett of Michigan, and Rob Bresnahan of Pennsylvania have also voiced their opposition to the firing squad/livestream combo execution.

On Friday, Vice President J.D. Vance referred to the livestream, saying, "I don't know that that's actually going to happen" and said that, regardless, he wouldn't be watching it.

"Public executions are what oppressive dictatorships like Iran and Afghanistan do," said Sen. Thom Tillis (R–N.C.) this past Thursday. "It should not be happening in America."

Scenes from New York: "Mayor Zohran Mamdani said on Monday that the Police Department had strengthened its accountability systems after an officer was allowed to retire before facing a disciplinary trial over the death of a teenager," reports The New York Times. "Mr. Mamdani also ordered the police to conduct a review of their use-of-force policies, which were central to an oversight board's decision to recommend excessive force charges against the officer, Salvatore Alongi, in the death of the 19-year-old Win Rozario in 2024."

QUICK HITS

"Federal agents searched the Washington, D.C., home of Rep. Ilhan Omar (D., Minn.) Monday as part of a criminal investigation," reports The Wall Street Journal. There's not much additional detail available at this time, though "Secretary of Homeland Security Markwayne Mullin told a conservative podcaster in September that there was a continuing federal investigation into Omar, who he said 'married her brother to try to bring him into the United States'" which is a claim Omar has denied.
"A federal judge issued a temporary order Sunday blocking the Trump administration from airing taxpayer-funded campaign-style television commercials. But the administration blew past a Sunday evening deadline and ran two of the ads into the early hours of Monday, advertising data from AdImpact shows," reports The Washington Post.
"That's a moderate (or perhaps even conservative) view that I think derives naturally from an ethic of 'I believe in parks and libraries and buses and public pools because I intend to use them personally,'" writes Matt Yglesias at Slow Boring. "This is also relevant to perennial political-economy conflicts between users of public services and their providers, where, again, the notion that you need to be tougher on public sector unions is sometimes right-coded. But I do think it also raises the question of what the correct and authentically progressive attitude is toward these things. After all, a pool that is appealing to an upscale liberal who can afford membership in a private pool club is also a pool that is doing a good job serving hard-working low-income families who can't afford a private pool."
"Eleven sailors were missing at sea on Tuesday from a ship sunk by a drone attack off the coast of Bulgaria, possibly the second deadly sinking of a ‌cargo vessel in the area in a week, prompting Bulgaria to summon Russia's ambassador," reports Reuters. "Two cargo ships were hit by drones overnight and one was sunk, Bulgarian officials said. Bulgaria stopped short of explicitly accusing Russia of carrying out the attacks but Prime Minister Rumen Radev said their outcome 'benefits the Russian Federation.'"

The post Settling the School Wars appeared first on Reason Magazine.

New Essay: "The Establishment Clause At The Second Founding"

2026-10-13T13:01:31Z

My new essay in Civitas introduces novel research about the understanding of the Establishment Clause in 1868. I dug through recently digitized archives of the Freedmen Bureau. In short, a federal government agency, headed by military chaplains, worked with religious groups to establish schools in the South, and the curriculum in those classes included bible readings and prayers.

Here is an excerpt:

The regulations for Freedmen schools in Texas provided that classes would begin at 9 A.M. and "[t]he morning Exercises will commence with either the singing of an appropriate hymn, or prayer, or the reading of the Scriptures." For Louisiana Freedmen schools, each day, "[t]he opening exercise in every school will be the reading a passage of Scripture or a prayer in place thereof." After prayers, the students would sing "an appropriate hymn or melody." The Freedmen school in Bainbridge, Georgia opened the day by reading one chapter from the Bible. The Freedmen school in Mobile, Alabama opened each day with a "divine service, which exercises consist of reading short selections from the Bible, after which the school repeat[s] the 23rd Psalm." (It begins, "The Lord is my shepherd. . . .") "Then all kneel, when a short prayer is offered by some designated teacher, at the close of which all join in the repetition of the Lord's prayer, when the exercises are concluded by singing . . . "

In February 1868, a teacher at the Clinton's Freedmen's School in Tennessee reported to the Freedmen's Bureau that "the prayers of the pupils is [sic] encouraging." In October 1868, Dellie Gordon, a teacher at a Sabbath School in Prince George's County, Maryland, wrote to Rev. John Kimball, the Superintendent of District of Columbia Schools. Gordon relayed that she "opened school on Sunday afternoon and recited the Ten Commandments which, the children had never heard before." Gordon added that "with explaining the 2nd chap St. Matthew the afternoon passed very pleasantly." (This chapter discusses Jesus's birth and early childhood.) . . .

The purpose of teaching scripture was not merely to promote literacy. The Bureau recognized a close connection between teaching religion and promoting morality among the families of recently freed slaves. In October 1866, the Superintendent of Schools for Alabama wrote that "[e]ffort has been made to supply the moral and religious wants of the freedmen as far as possible" through the donation of 2,000 Bibles from the American Bible Society. The report observed that "portions of the Holy Scriptures find their way to households which, probably, would be reached in no other way." Another report from Alabama explained that "[e]ffort has been made to supply the moral and religious wants of the freedmen as far as possible." General O.O. Howard, the Commissioner of the Freedmen's Bureau, and the namesake of Howard University, was told that teachers "explain[ed] the lessons of morals and christianity, so strikingly presented in every page of the Bible."

The schools also engaged in outright proselytization. Teachers at American Missionary Association schools for Freedmen in Alabama were required to fill out a monthly report with questions about conversion: how many Bibles were distributed? How many families were "engaged in religious services, either by reading the Scriptures, singing, or prayer"; how many "hopeful conversions, if any, during the month"? One report from the Girard Freedmen School reported nine hopeful converts. . . .

The Freedmen schools, which were managed and funded by the federal government, proactively incorporated the Bible into the curriculum. Students began their day with prayer, read from the bible, and teachers were encouraged to proselytize. These actions were viewed as a critical way to develop morality among the freedmen. This history from the Second Founding should inform how the Establishment Clause would have been understood when the Fourteenth Amendment was adopted.

I have published here only a small bit of my research. The full load will come in a forthcoming symposium article. I encourage others to follow this path, and see what else comes up.

The post New Essay: "The Establishment Clause At The Second Founding" appeared first on Reason Magazine.

May an Employer Fire a White Woman for Wearing Hair in Cornrows?

2026-10-14T06:52:52Z

The Baltimore Rock Opera Society fired its recently hired executive director, allegedly because she was wearing her hair in cornrows and thus engaging in supposed cultural appropriation. The concern wasn't that cornrows were seen as unprofessional as such, but rather that a white woman was wearing a hairstyle that is seen as culturally black. (Katie Herzog at Blocked and Reported has a very good new podcast episode on this.)

Such a firing, I think, is illegal under federal antidiscrimination law, though it's possible (but not certain) that BROS may have a First Amendment defense, given the particular job that the woman held.

[1.] The gender identity discrimination precedent: The key precedent here is Harris Funeral Homes v. Stephens, the trans companion case to Bostock v. Clayton County. In those cases the Court held that gender identity and sexual orientation discrimination is sex discrimination, and therefore banned by the Title VII prohibition on sex discrimination. Here's the key part of the logic behind that argument:

[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee's sex, and the affected employee's sex is a but-for cause of his discharge.

Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee's sex plays an unmistakable and impermissible role in the discharge decision.

Thus, if an employer fires a biological male for presenting as a woman—wearing clothing, makeup, and hairstyles associated with women—that is presumptively illegal because it is discrimination based on sex: The employer would allow biological females to wear clothing, makeup, and hairstyles associated with women, but not biological males, so "the individual employee's sex plays an unmistakable and impermissible role in the discharge decision."

[2.] The same logic carries over directly to race: If an employer fires a white woman for wearing a particular hairstyle, but would allow a black woman to wear the same hairstyle, "the individual employee's race plays and unmistakable and impermissible role in the discharge decision." (Likewise, if an employer fires employees for engaging in interracial relationships—e.g., by firing a black employee for dating a white woman but not firing white employees for dating white women—that is race discrimination, just as firing employees for engaging in same-sex relationships is sex discrimination.)

Now of course some people may well be offended by white women wearing hairstyles that are viewed as traditionally black, just as they may be offended by people whom they view as female presenting as male and vice versa, or by white women dating black men. But concern about customers and coworkers being offended isn't a legally adequate justification for discriminatory rules, even when such offense may lead to tangible loss to the employer.

Note that this is a different question from whether employers can implement a facially "race-neutral policy" that requires hairstyles to "reflect a business/professional image," and that is read as forbidding certain hairstyles (such as dreadlocks) "physiologically and culturally associated with people of African descent." (See EEOC v. Catastrophe Mgmt. Solutions (11th Cir. 2016) (upholding such a policy, precisely because the court viewed it as race-neutral.) Such a policy would apply to all employees, black or white, who wear such hairstyles. The BROS decision appears to have stemmed not from a general view that cornrows look unprofessional, but from the view that cornrows should not be worn specifically by white women (or at least women who aren't black).

[3.] Race discrimination is illegal even for small employers: Employment discrimination based on race (and ethnicity, but not sex or religion) violates not only Title VII, but also the ban on race discrimination in contracting in the federal 42 USC § 1981 statute. Section 1981 applies to employment, including by very small employers, unlike Title VII, which only covers employers with 15 or more employees. (I'm not sure how many employees the Society has; apparently it largely operates through volunteers.)

[4.] Maryland's CROWN Act treats discrimination based on "traits associated with race, including hair texture, afro hairstyles, and protective hairstyles" "includ[ing] braids, twists, and locks" as race discrimination. It's not clear whether the CROWN Act would apply to firing people for supposedly culturally appropriating traits associated with a different race. But it too has a 15-employee threshold, so we can set it aside here, and focus solely on the straight-up § 1981 race discrimination claim.

[5.] Historically, courts have allowed sex-based dress and grooming codes, such as rules requiring men to wear short hair, requiring women to wear makeup, and the like, on the theory that those policies impose "essentially equal burdens on men and women," even if the rules differ for men and women. (This is part of a pattern of allowing "separate but equal" for men and women in certain narrow situations even after that principle had been rejected as to race; the pattern is also visible in the law's tolerating single-sex bathrooms, single-sex sports teams, and single-sex colleges, where it would not do so as to race.) To quote the reasoning in Jespersen v. Harrah's Operating Co., Inc. (9th Cir. 2006) (en banc):

In Frank v. United Airlines, Inc. (9th Cir.2000), we dealt with a weight policy that applied different standards to men and women in a facially unequal way. The women were forced to meet the requirements of a medium body frame standard while men were required to meet only the more generous requirements of a large body frame standard. In that case, we recognized that "[a]n appearance standard that imposes different but essentially equal burdens on men and women is not disparate treatment." The United weight policy, however, did not impose equal burdens. On its face, the policy embodied a requirement that categorically "'applie[d] less favorably to one gender[,]'" and the burdens imposed upon that gender were obvious from the policy itself.

This case stands in marked contrast, for here we deal with requirements that, on their face, are not more onerous for one gender than the other. Rather, Harrah's "Personal Best" policy contains sex-differentiated requirements regarding each employee's hair, hands, and face. While those individual requirements differ according to gender, none on its face places a greater burden on one gender than the other. Grooming standards that appropriately differentiate between the genders are not facially discriminatory.

We have long recognized that companies may differentiate between men and women in appearance and grooming policies, and so have other circuits. The material issue under our settled law is not whether the policies are different, but whether the policy imposed on the plaintiff creates an "unequal burden" for the plaintiff's gender.

Not every differentiation between the sexes in a grooming and appearance policy creates a "significantly greater burden of compliance[.]" For example, in [an earlier case], this court upheld Safeway's enforcement of its sex-differentiated appearance standard, including its requirement that male employees wear ties, because the company's actions in enforcing the regulations were not "overly burdensome to its employees [.]" Similarly, as the Eighth Circuit has recognized, "[w]here, as here, such [grooming and appearance] policies are reasonable and are imposed in an evenhanded manner on all employees, slight differences in the appearance requirements for males and females have only a negligible effect on employment opportunities." Under established equal burdens analysis, when an employer's grooming and appearance policy does not unreasonably burden one gender more than the other, that policy will not violate Title VII.

I'm not sure that this reasoning survives Bostock and Stephens, which seem to create a much more categorical definition of sex discrimination. To quote the Supreme Court in those cases,

Nor is it a defense for an employer to say it discriminates against both men and women because of sex. This statute works to protect individuals of both sexes from discrimination, and does so equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it….

Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups…. [A]n employer who intentionally fires an individual homosexual or transgender employee in part because of that individual's sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.

The Court in Bostock did say that it wasn't deciding the legality of sex-based "dress codes," but its logic suggests that they are indeed illegal. And post-Bostock cases dealing with sex-based dress codes in public schools have concluded that they do indeed constitute sex discrimination. See Peltier v. Charter Day School, Inc. (4th Cir. 2022) (en banc) (expressly rejecting the pre-Bostock "'comparable burdens' test for sex-specific dress codes"); Doe through Doe v. Rocky Mountain Classical Acad. (10th Cir. 2022) (likewise).

[6.] "Different but essentially equal burdens": But in any event, for BROS to defend itself by arguing that the sex-based appearance code cases apply to race discrimination, it would at the very least have to show that its "appearance standard … imposes different but essentially equal burdens on men and women is not disparate treatment"—i.e., that BROS would forbid black employees from wearing hairstyles associated with whites (or other non-black groups), such as straightened hair for black women.

That strikes me as quite unlikely to be true. And if I'm right, and BROS indeed imposes a "no cultural appropriation" rule only on white employees (or perhaps on non-black employees), then the cases allowing certain sex-based dress codes just wouldn't apply.

[7.] No exception for high-level nonprofit executives: I appreciate the argument that, since organizations often live or die by the goodwill of their customers, donors, and volunteers, they should be able to accommodate those groups' preferences and even prejudices in selecting at least the organization's leaders. Indeed, some antidiscrimination laws—though not § 1981—include some narrow exemptions that can be used to accommodate such preferences, as well as the preferences of the employers themselves. Title VII, for instance, exempts discrimination by elected officials in choosing their non-civil-service "personal staff," "an appointee on the policy making level," or "an immediate adviser with respect to the exercise of the constitutional or legal powers of the office."

Some courts have also held that partners who co-own the employer are not employees for purposes of some federal employment laws. That would generally allow partners to discriminate based on sex, religion age, disability, and similar attributes in expelling partners, forcing them to retire, and the like. (Recall that § 1981 covers all race discrimination in contracting, not just employment discrimination, so race discrimination against partners would still be illegal.)

But there is no such general exemption for high-level managers of a business or a nonprofit: Even CEOs can sue for discrimination, for instance, and so can salaried officers of nonprofits. And outside these narrow exemptions, antidiscrimination law forbids race discrimination even when it stems from the rational desire to accommodate others' preferences.

[8.] Constitutional exceptions: Finally, a last twist that offers BROS a possible defense, though it's not clear that it would work. While § 1981 categorically forbids race discrimination in contracting, there are of course some constitutional exceptions to that:

A church, for instance, has a First Amendment right to choose its clergy, without constraint by antidiscrimination laws.
A theater company (including BROS) has a First Amendment right to choose the actors it hires, even if that involves race discrimination.
Groups' right of expressive association would allow a nonprofit (such as the Boy Scouts) committed to promoting a "straight" lifestyle not to hire gay activists as people who speak for the group (that's the Boy Scouts v. Dale case); likewise, a group committed to opposing interracial relationships would presumably be entitled not to select volunteer spokespeople who are known to be in such relationships.
Creators' right not to create expression they disapprove of would likely allow them to refuse to create material promoting, say, interracial weddings or interfaith weddings as well as same-sex weddings (that's 303 Creative v. Elenis).
People's right of intimate association likely allows them to choose their roommates based on race, free of antidiscrimination law.
People's right to marry and right to sexual autonomy would likewise presumably allow them to choose spouses and sexual partners based on race, even if antidiscrimination law purported to forbid that.

But there is no constitutional right for an organization to choose its employees or partners based on race, and I don't think any court would recognize such a right as to executive directors, either. Nor do I think that BROS can fit within the Boy Scouts v. Dale exception, at least unless it can show that its having an occasionally corn-row-wearing executive director "would significantly affect its expression." ("[A]n expressive association" cannot "erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message.") It's also not clear that Dale, which arose as to volunteers covered by public accommodation law, would apply to employees. (Compare Starkey v. Roman Catholic Archdiocese (S.D. Ind. 2020), which declines to apply Dale to employment, with Youth71Five Ministries v. Williams (9th Cir. 2025), which does apply Dale to employment.)

At the same time, the scope of this exception, as to expressive nonprofits such as the Boy Scouts and BROS, is necessarily somewhat vaguely defined, and the executive director does speak for the organization to the public (and to volunteers and employees). The Boy Scouts argument would therefore probably be BROS's strongest defense.

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Someone Trying to Vanish Articles About Forged U.K. Court Order Aimed at Vanishing Article About Businessman Mason Soiza

2026-10-13T12:01:31Z

I wrote in 2018 about a forged U.K. court order, quoting a Times (London) article (Billy Kenber):

Last week two fake documents were sent to Google in an attempt to censor a Times article revealing concerns about an online pharmacy run by an alleged internet spammer. The documents, including an order which purported to be from the UK Supreme Court, were sent to the tech giant in an attempt to get the article removed from its search result.

The "de-indexing" request was submitted in the name of Mason Soiza, 24, the owner of UK Meds, although he denied making the request. It comes amid concerns about how businesses, individuals and law firms are using takedown requests to remove damaging information from searches. At least 75 fake court documents have been sent to Google, according to a US academic….

Mr Soiza, who has emailed The Times to ask for the newspaper to "de-index" the article about him, said he had not created the forged documents or submitted them to Google. He said they were "100 per cent not sent by me" and added that they "look awful".

He said he had hired a company called DeIndex to "clear my name" and offered £6,000 if it succeeded in "removing false information about me online" but he did not know anything about its methods. Someone claiming to represent DeIndex on the company's Skype account said that it had not made any submissions to Google or created the documents.

Now six copyright-based takedown requests (see here, here, here, here, here, and here) have been sent to Google, aimed at getting Google to deindex my post (and other articles about Soiza and some other, unrelated, articles); the claim is that the posts infringe an X post that is completely unrelated to my article. Two other requests (see here and, from last year, here) have sought to deindex some other items about Soiza, but didn't include my post.

It's impossible for me to tell who is responsible for deindexing requests, but I thought it was noteworthy that there was an attempt to vanish those items from search results. As best I can tell, the attempt was unsuccessful.

I e-mailed what appear to be Soiza's new company to ask whether he had a statement on the matter, and got the response that, "We've looked into the matter and don't have a statement to provide at this time."

The post Someone Trying to Vanish Articles About Forged U.K. Court Order Aimed at Vanishing Article About Businessman Mason Soiza appeared first on Reason Magazine.

A New Supreme Court Case Tests the Limits of Judicial Deference to Federal Agencies

2026-10-13T11:00:51Z

The U.S. Supreme Court is scheduled to hear oral arguments today in an important case that asks how much judicial deference is owed to the U.S. Sentencing Commission's commentary on the federal sentencing guidelines when a judge is applying those guidelines during the sentencing of a federal criminal defendant. That may sound like a somewhat dry legal dispute, but the ramifications are big not only in the realm of criminal law, but also for the broader legal battle over statutory interpretation, the role of the courts, and the authority of those federal agencies that some critics have called "the administrative state."

The case is Beaird v. United States. Kendrick Jarrell Beaird was arrested for pointing a gun at someone and, because he had a prior felony record, was convicted as a felon in possession of a firearm. Under the federal sentencing guidelines, Beaird faced an even higher sentence if the firearm "involved…is capable of accepting a large capacity magazine." His gun's magazine was capable of holding 17 rounds. Did that count as large capacity and thus trigger a higher sentence? The federal sentencing guidelines did not directly say, but the U.S. Sentencing Commission's commentary on the guidelines did: According to the commentary, a magazine capable of accepting "more than 15 rounds of ammunition" counts as large capacity.

Are the federal courts bound to follow the Sentencing Commission's commentary in a case like this and dutifully impose a steeper sentence? Or may the courts impose a lower sentence based on their own alternate view of the best reading of the text of the sentencing guidelines?

In Stinson v. United States (1993), the Supreme Court held that the commentary to the federal sentencing guidelines is entitled to major deference from the courts. "We decide that commentary in the Guidelines Manual that interprets or explains a guideline is authoritative," the Court said, "unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline."

Among the questions at issue in today's oral arguments in Beaird is "whether Stinson v. United States still accurately state[s] the level of deference due to the Commentary of the Federal Sentencing Guidelines." In other words, should there be cases in which a judge's alternate reading may trump the interpretation favored by the commission's commentary?

Those questions alone make this a notable case. But this particular dispute also arrives in the midst of a broader, ongoing battle over judicial deference to the authority of federal regulatory agencies. For instance, in Kisor v. Wilkie (2019), the Supreme Court narrowly upheld a precedent which said that a federal agency's interpretation of its own "ambiguous" rule is entitled to broad judicial deference unless the agency's interpretation is "plainly erroneous or inconsistent with the regulations being interpreted."

Justice Elena Kagan's 5–4 majority opinion in Kisor v. Wilkie justified this holding on the grounds that the Court's deferential doctrine "enables the agency to fill out the regulatory scheme Congress has placed under its supervision."

Writing in dissent, Justice Neil Gorsuch faulted this approach for requiring judges "to accept an executive agency's interpretation of its own regulations even when that interpretation doesn't represent the best and fairest reading." That sort of deference, Gorsuch argued, "creates a 'systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else.'"

This Kagan-Gorsuch clash of legal visions is likely to arise again in the Beaird case. Whether or not Kagan's pro-deference view will still command the majority, however, remains to be seen.

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Today in Supreme Court History: October 13, 1890

2026-10-13T11:00:11Z

10/13/1890: Justice Samuel Miller dies.

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Brickbat: Paying the Piper

2026-10-13T08:00:32Z

California Gov. Gavin Newsom signed Assembly Bill 2222, creating tax incentives for news organizations. Under the law, eligible news organizations can receive a $20,000 tax credit for each of their first five journalists, $15,000 for each additional journalist and new hire, and $7,500 for eligible part-time journalists. Supporters say the program will help struggling newsrooms survive. Newsom said he approved the bill despite concerns that it could benefit wealthy owners, hedge funds, and media companies that do not need financial help. The program also has no spending cap and could create unlimited costs for taxpayers.

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Open Thread

2026-10-13T07:00:00Z

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Congratulations to the Hoover Institution's Robert E. Hall, on His Economics Nobel Prize

2026-10-12T23:42:30Z

Robert E. Hall, on the right.

From Hoover's post today (and see also our colleague John Cochrane's post about Hall's work):

Robert E. Hall, the Robert and Carole McNeil Endowed Professor in Economics and Senior Fellow at the Hoover Institution, Emeritus, and emeritus professor of economics in the School of Humanities and Sciences, is the recipient of the 2026 Nobel Memorial Prize in Economic Sciences.

Hall was recognized with the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel for his contributions to the "microeconomic foundations of macroeconomic stabilization," alongside economist Michael Woodford, with whom he will share the approximately $1.2 million prize.

"Robert E. Hall and Michael Woodford are awarded this year's prize in economic sciences for demonstrating how economic models could be reconstructed to revitalise stabilisation policy," according to an announcement from the Nobel Committee. "Rather than basing the models on statistical links between macroeconomic variables, such as inflation, production and consumption, they chose to build them on a microeconomic foundation. This encompasses an understanding for how the total mass of individual households and businesses affect the economy through their actions."

"This is a wonderful surprise," Hall said on Monday morning. "I've spent my career trying to understand how the economy works, following interesting questions wherever they led. When I thought I had a new idea, the next step was to find out whether it was actually new, whether it was right, and whether it mattered. I've been fortunate to have extraordinary colleagues and coauthors to help me sort that out, and working with them has been the greatest pleasure of my career."

Robert E. Hall, 83, is a member of the National Academy of Sciences and a fellow of the American Academy of Arts and Sciences, the Econometric Society and the Society of Labor Economists. Hall is an applied economist with interests in technology, competition, employment issues, and economic policy. He is a frequent contributor to discussions of national economic policy, including monetary policy, fiscal policy, and competition policy. Hall's research focuses on levels of activity and stock market valuations in market economies and on the economics of high technology, particularly the Internet.

Bob Hall is one of the most distinguished economists of his generation, whose work has profoundly shaped our understanding of economic growth, employment, and the forces that drive the American economy," said Hoover Institution Director Condoleezza Rice. "He has been instrumental in the way policy leaders think about the free market economy. This great honor is a well deserved recognition of a remarkable career, and we at Hoover are proud to call him a colleague.

"Bob Hall's creative and impactful work illuminates the connections between how households and firms behave and the outcomes of the economy as a whole, said Stanford President Jonathan Levin. "His insights have changed how governments and central banks respond to economic volatility. I'm thrilled that he has been honored with this year's Nobel Prize in Economics."

"Hall has made pioneering contributions to our understanding of household consumption, employment fluctuations, and market power," said Debra Satz, the Vernon R. and Lysbeth Warren Anderson Dean of the School of Humanities and Sciences. "It is wonderful to see his lifetime of work in applied economics recognized by the Nobel committee."

Along with Hoover colleague Alvin Rabushka, Hall is an active proponent of the flat tax. Their article in the Wall Street Journal in December 1981 was the starting point of an upsurge of interest in the flat tax. This led to their book, The Flat Tax. The pair was recognized in Money magazine's Money Hall of Fame for their contributions to financial innovation over the past twenty years.

Hall also serves as director of the research program on economic fluctuations and growth of the National Bureau of Economic Research, an interuniversity research organization. He is chairman of the bureau's Committee on Business Cycle Dating, which maintains the semiofficial chronology of the US business cycle.

Hall has advised a number of government agencies on national economic policy, including the Justice Department, the Treasury Department, and the Federal Reserve Board. He served on President-elect Ronald Reagan's Task Force on Inflation Policy and was a member of the National Presidential Advisory Committee on Productivity. He has testified on numerous occasions before congressional committees concerning national economic policy. He presented the Ely Lecture to the American Economic Association in 2001.

Before coming to Stanford, Hall was a professor of economics at the Massachusetts Institute of Technology and an assistant professor at the University of California at Berkeley.

Born in Palo Alto, California, he attended school in Palo Alto and Los Angeles, received his BA from the University of California at Berkeley and his PhD from the Massachusetts Institute of Technology. Hall is married to economist Susan Woodward and lives in Menlo Park, California.

"Stanford's Economics Department and the Hoover Institution gave me a dream job: the freedom and time to do the research I wanted to do," Hall said. "The taxpayers of California gave me an excellent education in the public schools and at Berkeley, and the federal government paid for my graduate education at MIT. I hope they will regard this as a satisfactory return on their investment. I thank my family, especially my wonderful wife and coauthor, Susan, and congratulate Michael Woodford, whose work has taught me a great deal."

The post Congratulations to the Hoover Institution's Robert E. Hall, on His Economics Nobel Prize appeared first on Reason Magazine.

FBI Foils Plot To Attack Mall of America With FBI-Provided AK-47

2026-10-12T21:15:49Z

Federal law enforcement officials in Minneapolis announced at a press conference last week that FBI agents arrested a Minnesota teenager plotting to commit a mass shooting at the Mall of America.

Sheikhdoon Abdullahi Mohamud, an 18-year-old American-born citizen of Somali descent, was arrested in a public park on October 6 by FBI agents immediately after he allegedly paid an undercover agent posing as a member of the Islamic terrorist group ISIS $600 for an AK-47 rifle and 200 rounds of ammunition. The arrest was the culmination of a two-year investigation into Mohamud, who allegedly planned to commit a mass shooting at the mega-mall on October 24.

According to the criminal complaint filed against Mohamud, he exchanged hundreds of messages with a confidential FBI informant expressing his desire to travel to Somalia to join ISIS, but lacking enough money to travel, he eventually settled for an alleged plot to attack the Mall of America because it was owned by Jews.

"I want to do this, I am very serious I don't care about anything in the world, I am 100% committed to the cause of dying for the sake of Allah only," Mohamud allegedly wrote in one text message, according to the complaint.

Christopher Dotson, a special agent running the FBI's Minneapolis field office said at a press conference that Mohamud's messages "document the idolization of ideologically motivated violence, a callous disregard for the sanctity of human life, a blind hatred of people of other faiths, and a cold commitment to carrying out his vision of violence in our community."

As I explained in a 2022 Reason magazine feature, "It's (Almost) Always the Feds," the FBI has a long history of using its sprawling network of paid informants to locate and bait would-be radicals in undercover sting operations.

The FBI's Countering Violent Extremism (CVE), created in 2011 to stop domestic recruitment by foreign terrorist organizations, has focused heavily on Somali immigrant communities in Minnesota and elsewhere because of Somalia's links to ISIS and al-Shabab, two Islamic terrorist groups.

An ISIS-affiliated account posted a video in 2015 calling for an attack on the Mall of America. In 2016, a Somali man in the U.S. on a refugee visa stabbed 10 shoppers and employees at a St. Cloud mall. Last year, a Minneapolis man was charged with attempting to join ISIS.

However, the sort of young men who usually get onto the FBI's extremist radar have grand and violent ambitions but limited means to carry them out. They tend to be unemployed or marginally employed, sometimes still living with their parents, and socially awkward.

In one text exchange, the confidential informant asked Mohamud how school was going.

"It's terrible man but I gotta keep doing it and if I fail its straight to just killin kuffar [a derogatory term for non-Muslims]," Mohamud responded, according to screenshots included in the criminal complaint . "And im already failing so if I don't pass in a yr ill probably save up for a gun."

The informant responded with the "grinning squinty face" emoji.

U.S. District Court

Mohamud continued to chat with confidential informants, praising terrorist attacks and sharing terrorist propaganda videos, according to the complaint. He didn't have a phone, so he had to use his sibling's computers and tablets to chat with informants. Last month, he recorded a video of himself pledging allegiance to ISIS on his little brother's iPad.

Despite persistent criticisms from civil liberties groups that the FBI is in many cases manufacturing terror plots to ensnare young men with limited to no ability to carry them out, the federal government has been enormously successful in securing convictions because of the high bar for defendants to prove entrapment.

The FBI's use of paid informants and these sting tactics have resulted in hundreds of convictions since 9/11, but it's also created long-term credibility problems for the bureau, especially when administrations have used those criminal cases to advance their political narratives.

For example, in a 2024 speech condemning political violence, former President Joe Biden cited the plot to kidnap Democratic Michigan Gov. Gretchen Whitmer. However, text messages and other records uncovered by defense attorneys during the case showed that the farcical plot was in large part concocted and encouraged by paid FBI informants and their bureau handlers.

"We have a saying in my office," one FBI special agent told a confidential informant in the Whitmer case. "Don't let the facts get in the way of a good story."

The CVE program and related counterterrorism initiatives have also subjected tens of thousands of Somali refugees and other ethnic and religious minorities to heightened surveillance and infiltration by government informants, sowing distrust and fear, all based on a relatively small handful of incidents. Reason's Eric Boehm wrote in 2018 about how Minnesota's peaceful and entrepreneurial Somali refugee communities had become a domestic front in the war on terror, as well as microcosm of the national debate over immigration and national security.

None of this is to say the investigation into Mohamud was unwarranted, or that he wouldn't have been able to eventually get a gun absent the FBI's assistance. Nor is it a statement on his guilt or innocence, although he is as a matter of law innocent until proven guilty. It is a reminder to read carefully and wait for all the details to come out whenever the FBI announces it has thwarted another terrorist plot.

The post FBI Foils Plot To Attack Mall of America With FBI-Provided AK-47 appeared first on Reason Magazine.

J.D. Vance Is Playing Dumb About Socialism

2026-10-12T21:15:35Z

This week, editors Peter Suderman, Katherine Mangu-Ward, and Nick Gillespie are joined by reporter Reem Ibrahim to discuss Vice President J.D. Vance's bizarre definition of socialism. They examine whether Vance genuinely believes what he's saying or is attempting to redefine socialism to avoid acknowledging the Trump administration's own big-government policies.

Next, the panel discusses America's growing $2 trillion deficit, the rising cost of Social Security and Medicare, and the generational divide between older Americans receiving government benefits and younger workers paying for them. The editors also examine youth protests in France, where students are demanding improvements to public schools despite the country's already extensive government spending. They then discuss allegations that U.S. Ambassador to Greece Kimberly Guilfoyle offered political access in exchange for help paying off personal credit card debt and what the controversy reveals about government corruption. Finally, a listener asks about Defense Secretary Pete Hegseth's plan to publicly broadcast an execution and whether turning capital punishment into a spectacle could encourage extremism.

0:00—Vance rebrands socialism.

08:48—Largest budget deficit ever

25:50—Youth protests in France

38:15—Listener question on public executions

46:25—Guilfoyle's corruption scandal

56:20—Weekly cultural recommendations

Upcoming Reason Events

The World Premiere of Escaping Venezuela, October 13

Mentioned in the podcast:

"J.D. Vance Accidentally Comes Out as a Socialist," by Billy Binion

"Trump Has Been Trampling Free Speech for More Than 40 Years—and It Keeps Getting Worse," by Jacob Sullum

"Protesters in France and Spain Are Angry at Government Failure—and Demanding More Government," by Reem Ibrahim

"The Great British Exodus: Taxes, Housing Costs, and Terrible Healthcare Are Driving Young Brits Away," by Reem Ibrahim

"The Federal Government Just Posted the Largest Annual Budget Deficit Since COVID," by Eric Boehm

"Livestreaming an Execution," by Liz Wolfe

"Kimberly Guilfoyle's Grift Is at Least as Offensive as Hunter Biden's," by Robby Soave

The post J.D. Vance Is Playing Dumb About Socialism appeared first on Reason Magazine.

Thinking of Sending a Nude Shrek Pic to an Ohio Official? You Could Be Found Guilty of Harassment.

2026-10-12T20:40:31Z

A text message containing an image of nude Shrek holding his ogre…appendage…loomed over an Ohio courtroom on Friday, during the prosecution's closing argument in a two-day trial that captured the attention of Ohioans, free speech advocates, and the national media.

"The question is whether you should be entitled to a little bit of privacy and not sent that message," said prosecutor Matthew Lallo.

The message at the center of this trial was sent by Ohio Substack writer D.J. Byrnes (a.k.a. "The Rooster"). Back in May, the blogger sent the racy image of Shrek to state Sen. Jerry Cirino (R–Kirtland). According to Signal Ohio, the blogger was arrested on June 1 after Cirino reported the messages to the Kirtland Police Department. The outlet reported that Byrnes spent 23 hours in jail before posting bail on a misdemeanor telecommunications harassment charge.

According to The New York Times, Byrnes sent the "gloating text messages" after Cirino announced he would no longer run as state Senate president.

An accompanying text to Cirino said, "Good to see you finally made your final humiliation public, Young Mussolini!" Byrnes' message also added, "THE PATRIOTS CAUCUS sends its regards!!!!!!!!!!!"

During Byrnes' trial, which began on Thursday, his defense team argued that the texts were intended as political statements, and they did not constitute harassment. The defense emphasized that Byrnes had frequently criticized Cirino in the past, and the texts were sent in the context of Cirino withdrawing from his bid for state Senate president.

"The point is clear," said Byrnes' attorney during closing statements. "Shrek was exposing himself and so was Senator Cirino, finally exposing himself as he couldn't win the presidency even though months earlier he had predicted that it would be wrapped up by March."

On Friday, the jury sided with the prosecution, finding Byrnes guilty of telecommunications harassment. Byrnes was sentenced to pay court costs and a $200 fine, reported The Ohio Capital Journal.

"This wasn't a free speech issue; this was a harassment statute that I believed he was in violation of," Cirino said after the verdict, according to the outlet.

On Monday, Axios reported that the judge barred Byrnes from raising a First Amendment defense in the trial, "leaving the defense to argue that Byrnes' messages did not satisfy the statutory definition of harassment."

Aaron Terr, director of public advocacy for the Foundation for Individual Rights and Expression, tells Reason he was not surprised by the verdict given the "broad and vague language of Ohio's telecommunications harassment statute." The statute, he notes, "criminalizes sending even a single electronic communication 'with purpose to harass, intimidate, or abuse' the recipient," which "sweeps in a vast amount of constitutionally protected speech."

"It's easy to imagine the same law being used to prosecute social media users who reply to government officials' posts with harsh or vulgar criticism," he says. "If Byrnes appeals, he should and likely will challenge the law's constitutionality."

And the Shrek saga does not seem to be over. According to Axios, Byrnes has "confirmed plans to appeal the ruling." What began as a "Shrext" may end up becoming a serious free speech matter for Ohio's appellate courts.

The post Thinking of Sending a Nude Shrek Pic to an Ohio Official? You Could Be Found Guilty of Harassment. appeared first on Reason Magazine.

Release the Kelly Clarkson Tapes

2026-10-12T20:11:59Z

Pretty Woman is the best romantic comedy of all time. In it, the actress Julia Roberts plays Vivian, a Los Angeles prostitute who stumbles into a weeklong escort gig for a well-to-do businessman. This requires a new wardrobe, ideally something where her legs are covered less by thigh-high boots and more by, well, actual clothes. Upon entering a shop on Rodeo Drive in Beverly Hills, it is quickly apparent she is not welcome.

She later returns—this time looking less hooker with a heart of gold, more polo match—to deliver one of the more legendary lines in movie history. "Big mistake," she tells the saleswoman who spurned her, flexing her shopping bags full of spoils. "Big. HUGE!"

Life imitates art; art imitates life. Accordingly, we now have a new Vivian, updated for the 21st century: an American Idol winner shopping not for Chanel and Valentino but for a yellow animatronic bird (naturally). This not being 1990, she also has social media.

"Just drove all the way to Brooklyn to check out this store I thought looked really rad and had a few things in mind to buy and literally was looked at as if I couldn't afford it and was told he could find something comparable for me," the singer Kelly Clarkson wrote on X. "Wow, dude. You're an idiot and just lost a huge sale. But y'all should go check out Art of Play in Brooklyn if you enjoy being treated like Julia Roberts [sic] character in Pretty Woman."

Just drove all the way to Brooklyn to check out this store I thought looked really rad and had a few things in mind to buy and literally was looked at as if I couldn't afford it and was told he could find something comparable for me. Wow, dude. You're an idiot and just lost a…

— Kelly Clarkson (@kellyclarkson) October 10, 2026

As of this writing, that post has been seen about 44 million times. It has inspired a news cycle, a public response from Art of Play, a counter-response from Clarkson, a counter-counter-response from Art of Play, and a lot of negative online reviews from people who have probably never been. It is a stark example of how Vivians of times past have been brought into the present. A comeuppance moment—"Big mistake!"—in response to an unpleasant experience with an allegedly rude employee can now become a national story that puts a small business in the crosshairs or the limelight, depending on whom you ask.

Some additional details, for your edification: The store noted that Clarkson wanted "Molly," that crooning fowl, which "is permanently attached to the wall and isn't for sale." Drat. Clarkson: "So the whole conversation we had when I asked you if it was for sale whilst pointing to the price tag hanging on the wall with the title Singing Bird didn't happen as you elevator eyed me saying in a condescending tone 'yes, it's for sale but it costs 15,000 dollars so if you'd like me to find something comparable for you I can.' That all never happened and now it's not for sale."

Now we're really cooking. The store: "We explained that while Molly is permanently attached to the wall and serves as a de facto mascot for our shop, a nearly identical automaton is owned by the creator of the machines, a brilliant artist named Bliss Kolb who lives in Seattle. He told us he would be willing to part with Molly's twin for $15,000." Art of Play also said it "explained all of this to Kelly Clarkson" and "offered to show her a different singing bird automaton…that she could have taken home with her that day" for the low, low price of $2,000. A steal. But, alas, "She did not stick around long enough to see it."

So we have overlapping but ultimately divergent accounts of this era-defining, avian warfare, which was almost certainly captured by a camera on the ceiling. Curious.

Let us acknowledge a few things. For one: How iconic is it that Clarkson prefaced her beef with the fact that she "drove all the way to Brooklyn," likely from Manhattan (where she keeps an apartment), as if she had just crossed the Darién Gap? We're talking approximately 35 minutes from Central Park to Cobble Hill. There is a storied history of extreme melodrama in great American cities when traversing neighborhood boundaries—try convincing an Angeleno to leave West Hollywood for lunch in Koreatown. Clarkson is truly an American idol.

For two: Why are we as a nation litigating a pop star's journey to buy a warbling robot? I now know as much about the origin story of Molly—the bird that broke America—as I do my sister's, who shares the same name. (It's a good name.) I will give Clarkson the benefit of the doubt that this employee may have been less than bubbly. It is Brooklyn, after all, where icy customer service from women with very short bangs and vocal fry is sometimes seen as an asset. But did we really need to mobilize millions of people against a random toy store because of an unfortunate five-minute exchange? Could Clarkson not have left a Google review? (Speaking of those, the fakes have been steadily disappearing, although a new evaluation from "Baba Baka" instructs users not to patronize the store because the owner "called me slurs." I have my doubts.)

What made Vivian's moment on Rodeo Drive so captivating? It was personal. She marches into the store—eyes trained on the elitist clerk with the braided updo, the short bangs of the late '80s and early '90s—and tells it like it is. She does not marshal all of Los Angeles into the store to do it with her.

Clarkson has the right, of course, to say whatever she wants, however she wants. But that does not necessarily make it wise. Her effort legitimately may backfire—despite the avalanche of online hate, Art of Play has gained thousands of social media followers and will likely become a brief destination, even out of morbid fascination. In general, though, unbecoming moments and misunderstandings between individuals do not need to become seismic—and potentially life-ruining—national affairs, as we've seen happen from time to time over the last several years. We can turn back.

Not this time, though. It's too late. The nation has been brought into the discussion, and the nation therefore needs closure. Art of Play is thus cosmically obligated to release security footage of the exchange. Was Clarkson more Vivian Ward or Veruca Salt? ROLL THE TAPES!

The post Release the Kelly Clarkson Tapes appeared first on Reason Magazine.

DHS Searched Ilhan Omar's Home as Part of Immigration Fraud Investigation

2026-10-12T19:40:15Z

On Monday, CBS News reported that federal agents searched the Washington, D.C., home of U.S. Rep. Ilhan Omar (D–Minn.), as part of an ongoing investigation that "centers on Omar's immigration paperwork."

In a statement to the Associated Press, the Justice Department said agents from Homeland Security Investigations (HSI)—an office within the Department of Homeland Security (DHS) that conducts federal criminal investigations into immigration fraud and identity and benefits fraud—"executed a judicially authorized search warrant" as "part of an ongoing federal criminal investigation."

The search warrant reportedly "lists a series of potential immigration crimes under investigation, including false statements and fraud in immigration paperwork, as well as a general conspiracy charge," according to The New York Times. The Times reported that federal officials are also investigating "whether Ms. Omar derived citizenship from a father who may have been ineligible to obtain naturalized status." In a statement, Omar called the investigation an "outrageous abuse of power and an unprecedented escalation in the weaponization of federal law enforcement to target political enemies," stating she did "nothing wrong."

Omar has been in the Justice Department's crosshairs since January, when President Donald Trump announced that the department and Congress were "looking at 'Congresswoman' Illhan Omar, who left Somalia with NOTHING, and is now reportedly worth more than 44 Million Dollars."

Trump was referencing an investigation by the House Ethics Committee, based on a 2025 financial disclosure form showing she and her husband held assets worth between $6 million and $30 million, a notable increase from her previous filings. Omar later filed an amended disclosure form that showed the assets were worth $18,004 to $95,000 after accounting for liabilities. However, in September, the Wall Street Journal reported that the Office of Congressional Conduct—which reviews allegations against House members and their staff—voted 5–1 to recommend that the House Ethics Committee dismiss the allegations. Per the Journal, investigators found no "substantial reason to believe that Rep. Omar reported false or incomplete information in her financial disclosures." Omar's office told the Journal she didn't catch the errors, which stemmed from erroneous valuations of her husband's businesses, because she "isn't involved in her husband's businesses and trusted the accountant involved."

The investigation into Omar appears to be part and parcel of the Trump administration's weaponization of government—which the president vowed to end—adding to a list of cases that includes former White House aide Cassidy Hutchinson, former FBI Director James Comey, and former National Security Adviser John Bolton.

Omar's opposition to the Trump administration's immigration enforcement efforts, particularly in her home state of Minnesota, and her Somali heritage have made her a frequent target of the president and his allies.

Last December, a federal indictment revealed a nearly $9 billion fraud scandal in Minnesota, much of it tied to the state's Somali immigrants. In March, Vice President J.D. Vance—who leads the Trump administration's anti-fraud task force—told right-wing commentator Benny Johnson that Omar "definitely committed immigration fraud against the United States of America." Vance accused Omar of "being at the center of a lot of the worst fraudsters in the Somali community."

Vance doubled down in May, telling White House reporters the immigration fraud allegations were "something that the Department of Justice is looking at right now." He appeared to pull back from his March claim that he was certain Omar had committed immigration fraud, instead stating that while he didn't want to "prejudge an investigation," it "certainly seems like something fishy is there."

In September, DHS Secretary Markwayne Mullin told Johnson that the investigation into Omar was still "ongoing," and that the department knew she had "married her brother to try to bring him into the United States." Omar's office has denied the accusations, which were first levied against her in 2016.

Mullin claims the investigation into Omar is "not political." He could be telling the truth; federal investigators have scrutinized Omar before. In 2024, the Biden administration's Justice Department opened an investigation into Omar's "finances, campaign spending and interactions with a foreign citizen," according to The New York Times. Per the Times, the investigation eventually "stalled for lack of evidence."

But Mullin's words are also hard to take at face value. Despite denying accusations of weaponizing the justice system, the Trump administration has time and again used dubious legal reasoning to investigate the president's political enemies. This includes New York Attorney General Letitia James, who, after successfully suing Trump for financial fraud, was indicted for mortgage fraud by Trump's Justice Department, which used the same petty justification on her.

The president has also continued a campaign to indict Federal Reserve Governor Lisa Cook, announcing last week that the White House would hold in-person hearings to look into claims she committed mortgage fraud. Ousting Cook would ostensibly allow the president to install a Fed governor aligned with his priorities. It's a tactic that failed Trump once before, when his Justice Department opened a criminal investigation into former Federal Reserve Chair Jerome Powell for his handling of renovations at the central bank's headquarters. Jeanine Pirro, the U.S. attorney for the District of Columbia, dropped the probe in April, and the department ultimately found nothing criminal in Powell's conduct.

An investigation will reveal whether Omar broke the law. Still, if it's anything like the Trump administration's previous efforts, the investigation is likely driven by political animus, not criminal behavior.

The post DHS Searched Ilhan Omar's Home as Part of Immigration Fraud Investigation appeared first on Reason Magazine.

Are Warrantless Phone Searches at the Border Constitutional? The Supreme Court May Soon Decide.

2026-10-12T19:25:06Z

George Anibowei, a U.S. citizen, is a Texas-based immigration attorney with many clients battling the Department of Homeland Security. Border agents have searched his phone at least five times without a warrant as he returned to the United States.

In the first search, agents copied the phone's entire contents, including his confidential communications with clients. The government still has that data, and Anibowei still doesn't know why it was kept or who has seen it. He now leaves his work phone at home when he travels.

On September 29, the Supreme Court asked the federal government to respond to Anibowei's petition, which asks whether the Fourth Amendment lets border agents search the contents of a phone without a warrant. (I'm one of his lawyers.) The government waived its response, expecting the Court would deny the petition without a second look.

But in 2021, the solicitor general told the Court that this very question had produced an "entrenched circuit conflict" of "considerable practical importance." The conflict has only deepened since. Seven federal appeals courts now hold that a warrant is never required to search a phone at the border, while the 4th and 9th Circuits require one in at least some cases. That means one of your constitutional rights currently depends on which airport you fly into.

While circuit courts may disagree, the Supreme Court has already shown the best answer for this question. In Riley v. California (2014), the Court unanimously held that police generally need a warrant to search the phone of someone they arrest. There is an exception for searches incident to arrest, which allows the police to arrest someone without a warrant; that exists to protect officers and preserve evidence. Data can't hurt an officer, and a phone can be secured while police get a warrant. An extension of an old exception to digital data, the court said, "has to rest on its own bottom." Treating a phone like any other container in an arrestee's pockets was like saying "a ride on horseback is materially indistinguishable from a flight to the moon."

The border-search exception fails the same test. Those searches exist to collect duties, keep out people who may not enter, and stop contraband. But duties attach to physical goods, not data. And as the legal scholar Orin Kerr has put it, agents "will not find a person smuggled inside a computer hard drive." As for digital contraband, anyone who wants illicit files can carry a clean phone and download them after clearing customs. Suspicionless phone searches burden millions of innocent travelers while barely inconveniencing smugglers.

The appeals courts that disagree mostly cite one another. But the Supreme Court rejected a lopsided lower-court consensus in Riley, and again in Carpenter v. United States (2018). Counting courts is not a constitutional argument.

Defenders of these searches lean on history. In United States v. Ramsey (1977), the Court noted that the first Congress authorized warrantless customs searches in 1789, less than two months before it proposed the Fourth Amendment. True enough. But that statute let officers search ships for hidden dutiable goods. To search a house, store, or other building for the same goods, officers needed a warrant. And nothing in the statute let officers read a traveler's papers.

That distinction was no accident. Customs abuses had helped spark the Revolution. Writs of assistance gave British customs officers blanket authority to search wherever they pleased, which James Otis said placed "the liberty of every man in the hands of every petty officer." And the founding generation guarded letters especially closely. Benjamin Franklin, as the first postmaster general, made postal workers swear they would not open mail without an express written warrant.

Even Ramsey, the government's favorite border search precedent, respected that distinction. It upheld opening international mail to look for contraband, but the regulations before the court flatly prohibited reading correspondence without a warrant, a point the justices stressed repeatedly. The Court has never held that border agents may read a traveler's papers without a warrant. A phone holds years of correspondence. It deserves at least the same protection the Founders gave a sealed envelope.

Last month, however, the 2nd Circuit joined those courts that have disregarded this tradition. In United States v. Alisigwe, Judge Steven Menashi wrote that agents need no suspicion whatsoever to search a traveler's property at the border, phones included. A border search becomes non-routine, he reasoned, only when it intrudes on the person, as a strip search does. A phone is property, so searching it is routine.

Judge Eunice Lee concurred, agreeing that no warrant was required. But she warned that the majority's rule permits suspicionless searches for any reason, "including political or discriminatory ones."

The Alisigwe majority's premise miscasts the Fourth Amendment. The amendment's text secures "persons, houses, papers, and effects" in a single, unranked list. The abuses that produced the amendment were searches of property, including private papers. Agents may properly physically examine a phone to ensure it's not really a container for smuggling contraband. But reading or viewing its digital contents without a warrant trespasses on a person's papers and effects. The framers protected property because they recognized that human beings are not ghosts: We live in the physical world by exercising our property rights, and so searching our property can reveal much about our lives.

Alisigwe is the latest word from a Court of Appeals, but it contains complications for the constitutional issue. The trial court found that agents had reasonable suspicion, so the no-suspicion holding arguably wasn't needed to decide the case. That suspicion involved a forged passport, which goes to identity and admissibility, the core of border authority. Finally, Alisigwe was a permanent resident, not a citizen, so the government's interest in deciding who may enter was heightened.

Anibowei is simple on each of these counts, which is why one can be hopeful the Supreme Court will take it and address the Fourth Amendment question now. Anibowei is a naturalized citizen, no one suspects him of anything, and he challenges the government's search policies directly rather than seeking suppression of evidence in a criminal case. As the 5th Circuit itself acknowledged, his case "turns squarely and solely" on the warrant question.

The stakes keep growing. In FY 2025, Customs and Border Protection (CBP) searched 55,318 electronic devices, nearly 11 times as many as in 2012—and nearly a quarter of those searches targeted U.S. citizens. According to the directives Anibowei challenges, agents may keep what they find and share it with federal, state, local, and foreign agencies. Investigators have learned to wait for a target to travel and ask CBP to search his phone on the way back in, rather than go to the trouble of demonstrating probable cause to a judge. No wonder universities, bar associations, and press freedom groups now advise travelers to leave their devices at home.

The Founders rebelled against customs officers who could search wherever they pleased and read whatever they found. A rule letting border agents scroll through a citizen's correspondence, photos, and client files without a warrant, or any suspicion at all, revives that power. The Supreme Court should take Anibowei's case. Our papers don't lose Fourth Amendment protections at the border just because they're digital.

The post Are Warrantless Phone Searches at the Border Constitutional? The Supreme Court May Soon Decide. appeared first on Reason Magazine.

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