The post Today in Supreme Court History: October 10, 2012 appeared first on Reason Magazine.

This appeal concerns the so-called "group defamation rule." Under that rule, a defamatory statement about a large group is not actionable unless the statement or its context indicates that it is targeted at specific members of the group.

Here, multiple companies and organizations involved in the Maine lobster industry sued the Monterey Bay Aquarium Foundation ("the Aquarium") for defamation under Maine law. The plaintiffs challenged the Aquarium's statements recommending that consumers avoid eating American lobster because lobster fishing poses a risk to the endangered North Atlantic right whale, even though those statements did not single them out in particular….

The district court denied [a motion to dismiss], concluding that the Aquarium's statements applied equally to each member of the Maine lobster industry. We disagree with the district court's application of the group defamation rule and thus reverse….

To maintain an action for defamation under Maine law, a plaintiff must establish that the alleged defamatory statement was "of and concerning" them. When a statement defames a large group of which the plaintiff is a member, courts have generally concluded that the plaintiff cannot satisfy the "of and concerning" element by virtue of the common-law principle known as the group defamation rule. Under this rule, "[d]efamation of a large group gives rise to no civil action on the part of an individual member of the group unless he can show special application of the defamatory matter to himself."

The group defamation rule predates our Constitution. And since the 1800s, courts have justified the rule, in part, based on the concern that affording every member of a large group a cause of action would threaten to stifle "free discussion" beneath an avalanche of "embittered and boundless litigation." …

The modern understanding of the group defamation rule is set out in the Second Restatement of Torts. Because the Law Court has adopted the Second Restatement's approach to other aspects of defamation law, we predict (and the plaintiffs agree) that the Law Court [Maine's supreme court] would adopt its approach to the group defamation rule as well.  Specifically, § 564A of the Second Restatement states:

One who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of it if, but only if,

• the group or class is so small that the matter can reasonably be understood to refer to the member, or
• the circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member.

The group defamation rule, as articulated in the Second Restatement, thus consists of a general principle—"no action lies for the publication of defamatory words concerning a large group or class of persons"—with two exceptions. Id. cmt. a. The first is the "small-group exception," which typically applies to groups of "25 or fewer" people. {As the Second Restatement explains it, when a "sufficiently small" group is defamed, "the words may reasonably be understood to have personal reference and application to any member of" the group.} Because the Statements here described the activities of some 5,600 lobstermen in Maine alone, the district court found that the small-group exception did not apply, and the plaintiffs have not argued otherwise on appeal….

The other exception is the "particular-reference exception." The linchpin of this exception is the requirement of a particular reference to the plaintiff—"particular" in the sense of "distinctive among other examples or cases of the same general category." For many years, courts have concluded that a defamatory statement that applies equally to every member of a large group is not particular to the plaintiff….  The fact that a statement may apply to every member of a large group is not enough to trigger the particular-reference exception. As one court put it, "evidence that others 'understood'" a statement directed at a large group to refer to a plaintiff "based solely upon [the] plaintiff's membership in the referenced group will not satisfy the 'of and concerning' requirement" under the group defamation rule….

Finally, we are mindful that—as the Aquarium and amici point out—a broad reading of the "of and concerning" requirement may raise constitutional concerns to the extent that it deters speech on public matters….

The plaintiffs insist, however, that the group defamation rule should not bar their claims. They rest on one main point in making this argument: that the Statements' factual nature, including the claim that the type of fishing gear used by the plaintiffs endangers the North Atlantic right whale, means that the Statements necessarily apply to every member of the fishery. Thus, they contend, the Statements are materially different from the hyperbole usually lobbed at entire industries that are subject to critique, and for that reason, the district court was correct to permit their claims to proceed.

To be sure, many cases barring claims against large groups based on the group defamation rule involve hyperbolic statements. But not all such cases do.

Nor are we convinced that the Statements in fact necessarily apply to each plaintiff. Certainly, some of the plaintiffs are associations of lobstermen or are lobstermen themselves; in other words, the individuals and entities directly using the fishing gear targeted by the Statements. But as the Aquarium notes, others—including lead plaintiff Bean Maine Lobster—allege they are only involved in downstream activities such as "market[ing] and sell[ing]" of lobster.

Regardless, the plaintiffs have not cited, and we have been unable to find, any case applying the particular-reference exception that allowed a claim against a large group to proceed on the theory that the challenged statements arguably applied to each member of the large group. Instead, that theory of liability is permitted by the Second Restatement as to small groups.  But it is not permitted as to large groups, which must rely on the particular-reference exception….

The plaintiffs rely on Fawcett Publications, Inc. v. Morris (Okla. 1962)—a case that predates the Second Restatement—and New York and Utah cases that follow its approach. In Fawcett, the Supreme Court of Oklahoma adopted a multi-factor test for group defamation claims, weighing factors such as the group's size, "the intensity of the suspicion cast upon the plaintiff," and the prominence of the plaintiff within the group. But that is not the Second Restatement test, and so we decline to hold that the Law Court would join the small minority of states that follow the multi-factor approach. … Although the Aquarium does not dispute that it "intended the statement[s] to refer to the" plaintiffs insofar as they fish in the American lobster fishery, and the complaint alleges facts suggesting that third parties understood the Statements to refer to the plaintiffs, here … "more is needed" [under the Restatement approach] …

Finally, we are not convinced that the Law Court would endorse the other rationales for applying the particular-reference exception cited by the district court. The court emphasized that "the Statements were not merely informational but included a call to action."  But we are not aware of any precedent suggesting that the advocacy-based nature of a statement may take it beyond the group defamation rule. And we hesitate to conclude that the Law Court would impose such a limitation when, as amici highlight, calls to action—including calls to boycott products and industries—are protected under the First Amendment….

Amy Mason Saharia (Williams & Connoly LLP) was the lead lawyer representing the Aquarium. Thanks to Paul Alan Levy for the pointer.

The post Statement About Maine Lobster Industry as a Whole Can't Be Actionable Group Defamation appeared first on Reason Magazine.

The statute under scrutiny made it a crime to disseminate a photograph of a person in a restroom under certain circumstances. The photo that Michelle Evans tweeted undoubtedly punctuated her political speech that accompanied the photo. But Michelle Evans could have conveyed her political views without publishing the photo. The Texas statute did not impinge at all on Evans's ability to broadcast to the world that she saw a biological male who is transgender, and who was also a political candidate, use a women's public restroom at the Texas Capitol complex, and to express her strong political views that this should not be permitted.

The question is whether it is likely (since we are at the preliminary injunction stage) that a state has a compelling interest in protecting a person's expectation of privacy in a restroom that is sufficient to outweigh First Amendment free speech rights under the facts of this case. I submit that the answer is "yes."

Evans attended a debate in the Texas House of Representatives at the Texas Capitol about gender reassignment treatment for children. When she visited the women's restroom, she encountered a biological male who is a transgender female, and who was at the time running for election to the Texas House of Representatives. Texas law did not prohibit a biological male who identifies as a female from using a women's restroom….

Evans then returned to her seat in the Capitol gallery, where one of her seatmates showed her that someone else from their group had posted on Facebook a photo of the candidate washing their hands in the women's restroom. Evans posted the photo on Twitter with a caption:

Evans's tweet generated a controversy, and the Travis County District Attorney, José Garza, investigated whether Evans had violated Texas Penal Code § 21.15(b). This statute criminalized—as a state jail felony—transmitting "a visual image of another in a bathroom or changing room" or promoting such a transmission if the action is done without consent and "with intent to invade the privacy of the other person."

Evans has not been prosecuted, but she sought a temporary restraining order and preliminary injunction in federal court prohibiting Garza from investigating or prosecuting her based on her dissemination of the photograph…. Evans maintains that when the subject of the photograph is "not in a private area of the bathroom and knows they are subject to public view," specifically, when they are "fully clothed, at a sink, washing their hands," others in the restroom have a First Amendment right to photograph the subject, and Evans has a First Amendment right to distribute that photograph. The question is whether the State has an interest in protecting the privacy of those using public restrooms that is sufficient to survive strict scrutiny when the person is photographed fully clothed washing their hands.

No one disputes that a person has a privacy interest not to be photographed in their own home without their permission, certainly not when the intent is to use the photograph to invade the person's privacy. But what happens when a person leaves their home and enters public spaces in a government building? When nature calls, it is unrealistic to think that the person can make it back home to use their own bathroom (which may be in another city or state) or find some other private restroom.

A public restroom has been considered as a practical matter "off limits" to the press once someone crosses its threshold. Traditionally, neither a private citizen nor the press follows a person into a restroom to pursue questioning or to obtain photographs. That is considered, as a matter of tradition, "beyond the pale."

Evans argues, though, that in the case before us, the person who was photographed had left the privacy of a stall to use the sink and therefore should be fair game. This would allow people engaged in a number of activities outside restroom stalls to be photographed without their consent. Outside the confines of a stall, people attend to all sorts of personal needs. Mothers change babies' diapers or nurse them. People adjust clothing or undergarments or change outfits entirely. They dab water on spills on their clothing, perhaps taking off a blouse or shirt or trousers, or hiking up a skirt. Some public bathrooms have sitting areas with couches or other lounge furniture in case a person feels the need to lie down.

Do these activities outside a stall subject people to being photographed without their consent, including surreptitiously, as long as certain body parts are not visible? Is there no constitutional protection when the photograph is taken or disseminated with the intent to invade the privacy of the person?

Does the constitution draw the line at the door to a stall in a women's or men's restroom for purposes of photographing someone? Does the First Amendment require that, once a person exits a stall, mobile phones and cameras may come out? As to urinals, does the First Amendment say cameras can click once the pants or trousers are zipped? Can the press or anyone seeking to photograph celebrities or public figures or other persons of interest enter or even crowd the restrooms of public buildings waiting for the chance to capture the moment the targeted person enters or exits a stall or turns away from a urinal? What of the ordinary person who is also in the restroom and of no interest to the press or to a private citizen on a politically motivated mission? Must the non-targeted individual navigate the press or other photo seekers?

The Texas Legislature reached the considered judgment that everyone, be it the Governor, a member of the Texas House or Senate, a state or federal judge, a political activist, a tourist, or a child, should have protection from being photographed without their consent when in a restroom, when the intent is to invade their privacy. This is a substantial, legitimate state interest.

Evans is not likely to succeed on her claim that strict scrutiny requires states to draw the line at the point when a person has left a stall or finished using a urinal or might otherwise have ceased to be in a position in which their genitalia would be visible. A public restroom in a government building is analogous to a bathroom in one's home. It is a place that sometimes must be frequented to attend to bodily functions that cannot be ignored and to attend to other personal matters normally addressed in a restroom. To say that a person has an expectation of freedom from being photographed only when that person's genitalia might be exposed would confine the right to privacy and seclusion too narrowly.

Some excerpts from Judge James Ho's dissenting opinion:

In [publishing the photo] …, the concurrence only dramatizes the First Amendment violation in this case…. [T]he concurrence invites Evans to "convey[ ] her political views without publishing the photo." But not only is that contrary to bedrock First Amendment law—which protects images as well as words. It's also contrary to the concurrence itself. After all, the concurrence (like Michelle Evans!) chose to publish the photo—presumably because the concurrence agrees with Evans that adding images to words does indeed help to "punctuate[ ]" their message….

The photo [also] confirms that there's no actual violation of privacy here.

After all, the photo depicts the individual in question in precisely the same way that that person chooses to present himself in public. So if that's a violation of privacy, then we have truly lost all understanding of the word.

And we have indeed lost all understanding of privacy. For let us not miss the profound irony here: A man enters a women's bathroom—and it's the man's privacy that is violated?

To borrow from the concurrence: Mothers must "nurse [their babies]," and women must "adjust [their] undergarments," "tak[e] off a blouse," or "hik[e] up a skirt," in the presence of any man who claims he is a woman—and if a woman objects, she's the one who is violating his rights?

The entire point of Evans's message, of course, is that it's a violation of women's privacy for a man to be present in a women's bathroom. So we're turning the law upside down to suggest that men have a privacy right to enter a women's restroom—and women have no First Amendment right to object….

Justice Thomas has observed that "[m]en … are not women …, even if they believe that they are." And to claim otherwise is to "show indifference regarding the truth." If the First Amendment protects nothing else, it protects the right of every American to express the truth. So I'm grateful to have this opportunity to dissent. I only regret that we could not extend that same privilege to Michelle Evans.

And from a dissent by Judge Andrew Oldham, joined by Judges Edith Jones, Don Willett, James Ho, Stuart Kyle Duncan, and Kurt Engelhardt:

Travis County District Attorney Garza wanted to prosecute Michelle Evans over a tweet. Cf. Rhys Groen, Pakistan Human Rights Lawyers Imaan Mazari and Hadi Chattha Sentenced to 17 Years Over Social Media Posts, Jurist NewsNEWS (Jan. 25, 2026), https://perma.cc/Z4VY-33EC; Hanson v. Faruqi [2026] FCAFC 96 (27 July 2026) (Austl.). Never mind that the tweet constituted political speech. And never mind that criminally charging social-media users for core political speech is tragicomically unconstitutional in this country. DA Garza waged a years-long battle over his right to do so anyway.

Then on the eve of possible en banc rehearing, Garza waved the white flag. With all the tact of a Kafkaesque bureaucrat, Garza blithely informed the court that "previously gathered evidence was not retained," that the limitations period has now run, and that "the office will make arrangements for releas[ing]" Evans's confiscated phone. That assurance of mootness apparently sufficed to defeat the en banc poll.

But it did not vacate the panel opinion in this case. Nor did it give future would-be speakers in Austin any assurance that they can participate freely in public policy debates without worrying about ham-fisted local prosecutors who'll abuse state law to suppress conservative speech. Kafka's Inspector said, "I can't even confirm that you are charged with an offense, or rather I don't know whether you are. You are under arrest certainly, more than that I do not know." Franz Kafka, The Trial. That was not supposed to be an instruction manual.

Judge Cory Wilson also voted for en banc rehearing, but didn't join either of the concurrences.

UPDATE 10/10/2026, 11:59 am: I originally erroneously called the Oldham et al. opinion a "concurrence," though of course it was a dissent; my apologies for the error.

The post Kafka's <i>The Trial</i> "Was Not Supposed to Be an Instruction Manual" appeared first on Reason Magazine.

[1.] Alberto Jorge Barraza cut off parts of Nikko G.'s hair with a knife as Nikko tried to fight him off. Barraza stabbed Nikko in the leg, severing an artery and killing him. A jury convicted Barraza of [1] first degree felony murder, with the underlying felony being robbery and [2] assault with a deadly weapon. Barraza appeals, contending insufficient evidence supported his first degree felony murder conviction because the evidence did not establish a robbery or attempted robbery.

This appeal presents a question of first impression—whether growing human hair, still attached to the victim's body, constitutes "personal property" for purposes of robbery. We conclude that growing human hair that is still attached to a person's head is part of the human body and not personal property. Accordingly, removing it by force does not meet the legal definition of robbery.

Nikko became acquainted with Barraza and two of Barraza's friends—John W., and John's mother, Lee Ann W. (together the Ws). Nikko was a member of an Indian tribe who was very proud of his Native American heritage. He had long hair that went down to his waist. Nikko took great pride in his hair and had spoken to John about his plan to sell it to a "cancer company that made wigs."

In early 2022, Barraza and his friends turned against Nikko after concluding he had stolen from them. Barraza and John discussed cutting off Nikko's hair to teach him a "lesson." Knowing of Nikko's intention to sell his hair, John referred to it as an "asset"—the "bank account" on top of his head. Another acquaintance similarly regarded Nikko's hair as his "prized possession" recalling, "[h]e was always in his hair or always fixing his hair." John went so far as to warn Nikko directly, "don't be surprised if that—that hair gets cut off" "one of these days."

On March 26, 2022, Nikko was spending time with two mutual friends of Barraza and John. Nikko was asleep in his friend's car when they drove to Barraza's apartment. The friends left Nikko sleeping in the car as they went inside to visit Barraza and the Ws. Upon learning that Nikko was outside in the car, Barraza went outside with a knife to confront him.

Barraza opened the car door, grabbed Nikko's hair, which was in a bun, and began cutting it off with the knife. He wanted to cut the entire bun off but Nikko woke up and fought back—kicking Barraza, flailing his arms and screaming for Barraza to stop, crying "'Not my hair.'" Barraza responded by punching Nikko and then stabbed him in the leg with the knife. The knife penetrated approximately four inches into the back of Nikko's leg, severing the popliteal artery and causing his death.

During a police interview, Barraza gave inconsistent accounts of the incident. He admitted to fighting with Nikko and grabbing his hair because he knew "how much [Nikko] like[d] his hair" but denied injuring him. He knew two major arteries were behind the leg, maintained he did not see any blood, and claimed that, had he stabbed Nikko, the amount of blood loss would have made it obvious. He later acknowledged having a knife and attempting to cut off all Nikko's hair but denied that he had stabbed Nikko. At the conclusion of the interview, he wrote an "apology" letter to Nikko's family, characterizing the stabbing as an "accident" and claiming he had only intended to "hurt" and "humiliate" him….

[2.] Human hair, once severed from the head, qualifies as a good or chattel which can be sold, bought, or given away …. The question is whether human hair that is still growing and attached to a person's head constitutes "personal property" for purposes of robbery. Our independent research has revealed no state or federal case addressing this issue. Thus, we turn to the legal definition of robbery.

Section 211 provides: "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." Under the common law, robbery is larceny with the aggravating circumstances that "the property is taken from the person or presence of another" and "is accomplished by the use of force or by putting the victim in fear of injury."

Robbery requires "personal property," which necessarily implies "property" such as a purse, necklace or a ring, meaning it cannot be part of the person. Attached hair is not a good or chattel; rather, it is anatomically part of a person's body until it is severed. If a defendant forcibly cuts off a person's hair or takes part of the person's scalp in the process, this conduct fits within offenses protecting bodily integrity, such as battery (§ 242) or mayhem (§ 203). If a pair of scissors, a knife, or a razor is held to the person's head to cut the hair this could qualify as assault with a deadly weapon. (§ 245.) Thus, severing attached hair fits within offenses protecting bodily integrity rather than proprietary interests and supports the proposition that attached hair should be legally viewed as part of the person. Additionally, section 211 speaks of taking property "from [the] person." This language presumes the property is distinct from the person. Attached hair, however, is part of the person's body. Thus, while there is no California authority stating body parts such as hair cannot be personal property, section 211 establishes that robbery is a possession-based crime against the person which requires personal property…

Additionally, legally protected interests in human tissues arise primarily from specialized statutory schemes or other limited doctrines rather than traditional common law ownership….

[3.] [T]he People contend it makes little sense to draw a distinction between hair that is willingly removed from the body by the victim prior to the theft and hair that is forcibly removed from the victim's body by the perpetrator at the time of the theft. They use the example of a person holding a bag of hair that had been previously removed from their body when a perpetrator forcibly takes that bag from them would constitute a robbery. In contrast, under Barraza's interpretation, if a perpetrator physically restrains a person and forcibly cuts off their hair to take or destroy it, the perpetrator could only be convicted of assault or battery. They argue such an approach creates an unjust result by treating the former situation more harshly than the latter situation even though the latter situation presents the more egregious criminal act….

To the extent this produces an arbitrary result, the Legislature could remediate the issue by adding a statute declaring that hair (or, more broadly, bodily material) severed from a person in the course of the same act by which it is taken is deemed personal property in the possession of that person in the same manner as if it had been severed at some previous time. Such legislation would collapse the timing distinction … without straining the existing "personal property" element over whether attached hair is a "thing" separate from the body….

Indeed, if the People have identified a line-drawing incongruity, it is largely a function of the scope of section 189 and the nature of the felony murder rule. The Legislature has chosen to limit application of first degree felony murder to certain enumerated felonies, including robbery but not including assault with a deadly weapon. We merely decide that the crime committed by the defendant here was the latter and not the former.

In conclusion, the taking of growing hair still attached to the victim's head cannot supply the personal property element of robbery. Because the evidence does not establish a robbery or attempted robbery, it cannot support felony murder based on that felony. Accordingly, Barraza's first degree felony murder conviction must be reversed.

I take it the issue was central to the case because there wasn't enough evidence that Barraza intended to kill Nikko, or was even guilty of "depraved heart murder," which is to say grossly reckless homicide. That's why the prosecution proceeded on a felony murder theory, which doesn't require a showing of purpose or gross recklessness as to killing, but just a death that is proximately caused by conduct during a felony such as robbery.

Marcia R. Clark (apparently the same Marcia Clark who was the lead prosecutor in the O.J. trial) represents defendant.

The post Is Hair on Your Head "Personal Property" for Purposes of Robbery Law? appeared first on Reason Magazine.

The post Today in Supreme Court History: October 9, 1954 appeared first on Reason Magazine.

Among the Democratic Socialists of America who have been nominated for seats in Congress in this year's midterm elections are:

U.S. Senate Nominations

• Angie Nixon (Florida): The state representative won a major upset for the Democratic Senate nomination in Florida, marking a notable statewide milestone for a democratic socialist candidate.

U.S. House Nominations

• Claire Valdez (New York, NY-7): Won the nomination in the district of retiring Rep. Nidia Velázquez.
• Darializa Avila Chevalier (New York, NY-13): Defeated sitting incumbent and Congressional Hispanic Caucus Chair Adriano Espaillat.
• Brad Lander (New York, NY-10): Won the nomination over incumbent Rep. Dan Goldman (though note he left the DSA following its response to the Oct. 7, 2023 attacks).
• Melat Kiros (Colorado, CO-1): Unseated long-serving incumbent Rep. Diana DeGette in Denver.
• Chris Rabb (Pennsylvania): Secured the Democratic nomination for a Philadelphia-area House seat.
• Donavan McKinney (Michigan): Won the nomination in a Detroit-area House district.
• Alexandria Ocasio-Cortez (New York, NY-14): Won renomination in her congressional district (endorsed by her local DSA chapter).

Because of the Democratic Socialists of America's rise to power, I wanted to know more about what they stood for. I googled their Platform, which is titled "Workers Deserve More," and I will quote from it below in bold face and respond in ordinary type. Much of what I will quote comes from a section of the Platform that describes "What We Fight For." Here are just a few key elements of the DSA's platform.

[1.] Demilitarize police departments … and redirect funding to public services as steps towards fully abolishing the police and prison system which protects the rich and jails the poor. Treat drug addiction and mental illness as health issues, not crimes.

There were 14,085 murders in the U.S. last year according to the FBI, 1,119,768 other violent crimes, 168,927 robberies, and 5,245,768 other property crimes. And that was without abolishing the police and prisons. Imagine how many murders, violent crimes, robberies, and property crimes there would be if we abolished the police and the prison system.

Legalizing all drug use, and treating it as a health issue, will cause the use of dangerous drugs to spread rampantly. Lives and families will be destroyed as a result.

The DSA's obsession with abolishing the police and prisons is a bizarre over-reaction to the abuses of power committed by some police officers. The problem is admittedly a serious one, and I, like most Americans, have been shocked by incidents of police brutality in making arrests, especially of Black men. But the solution to this problem is to eliminate police unions, which protect bad cops from getting fired when they themselves behave unlawfully. Another useful step would be legislation, both federal and state, that would abrogate judicially created immunities from civil suits over police and prosecutorial misconduct.

We do need to reform the police and prisons. We should not abolish them as the Democratic Socialists of America are calling for.

[2.] End ICE detentions and deportations …. Legalize migration, grant amnesty for all immigrants regardless of status, provide a path to citizenship for all permanent residents, and end visa caps and quotas.

As with police brutality, the solution here is reform, not abolition. ICE has often arrested and deported immigrants in a shockingly brutal way, outraging a sizable number of Americans including me. This has to stop. I would support firing the ICE agents who are committing wrongdoing and then hiring new ICE agents who understand that illegal immigrants are people and that they need to be treated with dignity and respect when they are deported. We should also stop deporting people to third countries, other than the country they are citizens of, unless that country refuses to take them back. I support reforming ICE by legislation if necessary.

But I cannot support the Democratic Socialist of America's call for actually abolishing ICE. Open borders would flood our country with poor immigrants from Latin America, who would take jobs away from low-income Americans, which would especially hurt Black Americans and Latinos who are legally in the U.S. This would change American culture permanently, threaten the status of English as our national language, and turn the United States into a third-world country. There is a limit to how many immigrants the U.S. can absorb without our national culture changing.

We also should not reward immigrants who came here illegally by giving them citizenship. This is a bad idea, as Americans saw when the Biden Administration opened our borders. First, illegal immigrants jump the queue by crossing the Mexican border to the detriment of people (from Mexico itself and also from India, the Philippines, and other countries) who have waited for decades for permission to come to the United States legally. Second, there is a limit to how many immigrants the U.S. can absorb at once so that our famous U.S. national melting pot will turn them into U.S. citizens. We are perilously close to that maximum number now, even though there are many foreign high-tech workers, engineers, and medical doctors whom I think we should admit.

The solution to criminal misbehavior by ICE agents is to fire and prosecute the agents who behave criminally, which too many have done. Maybe we should even rename ICE as part of an effort to change its culture. But actually abolishing ICE and opening our borders is a gross overreaction to such misbehavior—an overreaction that the American people would quickly come to hate, even more than Americans came to hate the failure to enforce immigration law during the Biden Administration.

[3.] Defund the Department of War. End all foreign wars and close overseas military bases…. End immunity for U.S. war criminals and support the International Criminal Court's mandate to prosecute war crimes.

Russia has over 2,000 nuclear missiles with multiple warheads aimed at the United States, China has 620 such missiles with a third of them deployed on operational forces, and North Korea has 60 such missiles. If we defund the Department of War, we might all get killed by foreign nuclear attacks or, more likely, be coerced into giving up our precious rights and freedoms. Our NATO allies might be overrun by the Russian dictatorship, and Japan, the Philippines, and Australia might be overrun by the Chinese dictatorship. This would end the global move toward democracy, which the United States started in 1776, and which is our greatest gift to the world.

Most Americans want to live free. They do not want to be Russian or Chinese slaves. Nor do they want to be nuked, or threatened to be nuked, by those countries.

As to prosecuting Americans who have defended this country, or Israelis, before a predominantly Third World International Criminal Court (ICC), that would be the epitome of injustice. I have friends and family members who support the ICC because they want to see murderous despots and drug dealers punished. I would like to see them punished too in American courts, with life tenured judges and the right to trial by jury. Congress could criminalize any global drug-dealing or human rights abuses committed by foreigners, which substantially in the aggregate affect U.S. commerce with foreign nations. Gonzales v. Raich, 545 U.S. 1 (2005).

The key is to have a just trial before U.S. judges and juries, and not show trials before people drawn from the community of international human rights lawyers, which tends, among other things, to be disproportionately instance anti-Semitic and protective of Islamic terrorists.

[4.] Recognize the rights of the Palestinian people, including the right of return, the right to resist military occupation, and the right to self determination in a free Palestine with Jerusalem as its capital. End all military and economic aid to Israel. Prosecute U.S. and Israeli leaders responsible for the genocide in Gaza.

Israel is the only democracy in the Middle East, and it is the only country to recognize the full equality of women and of LGBTQ+ citizens. It is also the only country in the Middle East with broad freedom of expression and freedom of religion. Americans have much more in common with the Israeli democracy than we do with the Palestinians.

President Bill Clinton at the end of his second term proposed a two-state solution for Palestine, which is obviously what is needed, and Israel agreed but the Palestinian Liberation Organization's then-President Yasser Arafat declined to endorse it. In the 59 years since Israel won the 1967 six-day war, it has not annexed the West Bank or the Gaza Strip. The Palestinians should accept this land as their homeland, and some Israeli settlements in the West Bank should be removed. Jerusalem should be a shared capital city for Israel and Palestine.

It is the Palestinians, not the Israelis, who have been blocking a two-state solution. U.S. policy should be to insist on such a solution (though we should also all hope that Benjamin Netanyahu, who is a demagogue intent on staying in power, loses the October Israeli elections).

The Palestinians have chosen as their leaders a criminal, terrorist group—Hamas—which murders innocent Israeli people. Why should the U.S. side with a terrorist group against the Middle East's only constitutional democracy?

[5.] Replace the two-party system with a multi-party democracy. Expand the House of Representatives, implement proportional representation and ranked choice voting in elections, and abolish the Senate.

There are a lot of quite radical reforms packed into this platform plank, and I will address them one at a time starting with the most fundamental ones.

The Democratic Socialists of America propose to abolish the Senate, which is a cornerstone of our 237-year-old Constitution. The Senate has more power than the House of Representatives because it has the power to confirm, or not, executive branch and judicial nominees and the power to ratify, or not, treaties. The Senate's filibuster rule requires a vote of 60 out of 100 senators to pass almost all legislation.

Most neutral observers of politics in Washington, D.C. over my lifetime have concluded that the Senate is much more functional than the House of Representative in part because it has many fewer Members, in part because Senators serve a long six-year term, and in part because only one-third of its membership turns over every two years, unlike the House of Representatives. The Democratic Socialists of America would throw all that out the window, along with the benefits of having a bicameral legislature thus wrecking institutions that are now working very well.

I consider the Senate, as it is currently constituted, along with bicameralism, to be the most important parts of the U.S. constitutional system because together they slow down lawmaking and change, which reduces the risk factor in investment, vastly increases American wealth and income, and augments liberty. The long-term certainty created by the Senate, bicameralism, and the presidential veto explains, in my opinion, why U.S. GDP per capita is $94,430, while the GDP per capita of the European Union is only $51,030, and the GDP per capita of China is only $14,870, according to International Monetary Fund estimates.

The Senate and the whole system of checks and balances and federalism makes the U.S much wealthier than even the United Kingdom, Germany, and France. All that extra wealth could be used to fund a better health care system, but the DSA would cause us not to earn that wealth in the first place by hugely increasing the risk factor in investment.

The biggest objection that most advocates of Senate-reform point to is the unfairness of California having 2 votes in the Senate when it has 39.3 million people while Wyoming has 2 votes in the Senate even though it has 588,750 people. This is a problem, but it is not as big a problem as most Americans think it is.

First, the ten states with the lowest populations are, in order, Wyoming, Vermont, Alaska, North Dakota, South Dakota, Delaware, Rhode Island, Montana, Maine, and New Hampshire. Of these low-population states, four are left-wing (and thus in the same political camp as California) and have two Democratic senators: Vermont, Delaware, Rhode Island, and New Hampshire. A fifth state, Maine is liberal and has one Independent who votes as a Democrat as Senator and the very liberal Republican Susan Collins who has often voted against President Trump's agenda and who publicly stated that she would not vote for Donald Trump in both the presidential elections of 2016 and 2024.

More importantly, in the last 40 years, control of the House, which is apportioned by population, and the Senate, which isn't, have largely gone hand in hand, so the 2-Senator rule doesn't seem to systematically favor either party. In particular, during 1987-2026 the same party controlled both chambers almost all the time, though in 8 years (2001-03, 2011-15, and 2023-25) the Democrats controlled the Senate while Republicans controlled the House, and in 2 years (2019-21) the Republicans controlled the Senate and the Democrats controlled the House.  Given these facts, it's pretty hard to see how Democratics are hurt by the rule that each state can have only two senators.

My friend and co-teacher Akhil Amar doubts whether Vermont's Democratic Senators, if one counts Bernie Sanders as a Democrat, as I do, represent the concerns of California Democrats. He proposes drawing 100 senatorial districts across state boundary lines, which are equal in population. But this would produce huge gerrymandering problems, as happens with U.S. House seats, and it would wreck American federalism. It would also require scrapping the Constitution, which forbids amendments that would deprive each state of its equal representation in the Senate.

What about getting rid of the filibuster? Would not that at least be a good Democratic Socialists of America idea? Not so fast. The first time there was a Republican President, Senate, and House, all of the Democrats' changes would be swept away, just as Democrats would sweep away the Republicans' changes when there was a Democratic President, Senate, and House. That would just create more instability, rather than more democracy.  The DSA should be more careful about what it wishes for.

I am opposed to abolition of the Senate, with its current rules of procedure, for all these reasons.

What about replacing our two-party system with proportional representation in the House of Representatives? Proportional representation and a multi-party system is a terrible idea, as is ranked choice voting, which is just a form of proportional representation. Proportional representation has, for instance, led in Israel to extremist groups dominating the government. The Democratic Socialists of America are an extremist group so it comes as no surprise that they would favor proportional representation. In Brazil, proportional representation has so weakened the legislature that the President dominates that country's democracy. The same thing would happen in the United States.

* * *

Now consider the Platform on "Workers Deserve More," which is where the DSA post starts. It describes a Leninist-Maoist world in which student loan debt and mortgages have been cancelled; all private housing has been nationalized; private grocery markets and family farms have been nationalized; energy companies have been nationalized; airlines, buses, trains and automobile factories and maybe even cars have been nationalized (though the platform is vague about private car ownership). Lest the reader think I exaggerate, consider what the Democratic Socialists of America are promising:

[6.] "You have no debt. You don't need health insurance. You don't pay a mortgage or have a landlord, because comfortable housing is a human right. Your retirement is publicly funded. Food, education, energy, medicine, and transportation aren't for-profit businesses; they are common goods and utilities."

What must happen to create a world without debts or mortgages? Presumably, all student loan debts and mortgage debts would be cancelled, thus penalizing those who have paid off their student loan debt and their mortgages to benefit those who are deadbeats and who have borrowed extravagantly while not paying society back. What is so just about that kind of world? Education, health care, housing, food, energy, medicine, and transportation all cost money to provide. If everyone has a "right" to these things then presumably the government will have to provide them.

The only way the government could do this is by nationalizing all education, health care, housing, food production and distribution, energy production and distribution, and automobile companies. That would mean an immense increase in taxes to pay for all these things.

The government could not afford to pay just compensation for all these nationalized items, so presumably they would be stolen unconstitutionally from the people who have earned them in a revolutionary grab of power and of wealth. The Democratic Socialists of America are proposing something like the Communist Revolutions of 1917 in Marxist-Leninist Russia and of 1949 in Maoist China.

The "Democratic" Socialists of America are not really calling for democratic, constitutional change. They are calling for unconstitutional, revolutionary change on a massive scale. History teaches that when revolutionary changes take place like those that would be necessary to implement the DSA's platform, freedom of expression and freedom of religion get abandoned; privacy and freedom in general disappear. And Enemies of the People get rapidly imprisoned in what soon becomes a totalitarian state with massive bloodshed and violence taking place.

But let's imagine unrealistically that the "Democratic" Socialists of America could peacefully bring about their unconstitutional redistribution of wealth from those who have worked hard to those who do not work hard. What would it be like to live in a world where there are no private universities or schools, and they are all "common … utilities"? Everything would become conformist. There would be no debate or discussion of ideas. Schools would teach only what the government wants them to teach. Research, experimentation, and technological progress would stop.

Look at the countries today that have gone down this road like Russia, North Korea, and Cuba and ask yourselves what cutting edge technologies and innovations those societies have produced compared to the United States? Even China, the most successful socialist dictatorship, has a plunging birthrate, widespread alienation of all its young people, and crippling debt. (Indeed, to the extent it can boast considerable economic success, it comes from its retreating from socialism and developing a massive, fundamentally capitalist, private sector.) Can anyone reading this op-ed realistically imagine themselves wanting to move from the United States to China, Russia, North Korea, or Cuba?

What would it be like to live in a country where the government ran all the hospitals, and all the doctors worked for the government? Look at the national health services in the United Kingdom Canada, Sweden, or Norway where you must notoriously wait for many months to get health care. Look at the scandal-ridden Veterans Hospitals in the United States, run by the federal government, where the quality of medical care is far below what it is in private and public university hospitals in the very same country. Today, in the United States, anyone who needs cutting edge emergency medical care can walk into a university privately run hospital's emergency room, demand healthcare, and they will get that healthcare without regard to whether they have health insurance or can afford to pay for it. All that would be lost under the Democratic Socialists of America's vision of health care as a public good.

What would it be like to owe no rent and own no home or apartment? No one would have any incentive to maintain, repaint, or repair such a home or apartment, so it would quickly start to rot and fall apart. I went to Eastern Europe and the Soviet Union in 1990 and 1991, and I saw how dilapidated the housing stock had become without private ownership of apartments and houses. Go to Cuba or North Korea today and you can see the same dismal thing.

How about a government right to food and to public grocery stores? I went to the fanciest grocery store in Moscow, right off Red Square, in 1991, and all the shelves were bare. The only thing for sale was one jar with an obviously rotten pickle. Admittedly, Soviet grocery stores had canned goods for sale, but they were abysmal by U.S. standards. Meanwhile, there was a four-hour-long line outside the one privately owned McDonalds in Moscow to buy a Big Mac. 98% of the farmland in Russia then was government owned. The 2% that was still privately owned produced one fourth of all the food in Russia. (See Hedrick Smith, The Russians (1976).) When the government owns land and grocery stores people starve. Just ask the North Koreans who have been reduced to eating grass during some famines.

What do members of the Democratic Socialists of America have to say about Second Amendment gun ownership rights? They hate them and want to abolish them. Anyone who wants to own a gun, even just for hunting, is a threat in the eyes of many members of the Democratic Socialists of America.

* * *

That, readers, is the heart of the platform of the Democratic Socialists of America. The DSA advocates policies that have been tried over the last 100 years in countless communist and socialist countries and that have always failed. This has been true in the Soviet Union, its former Eastern European allies, China, Cuba, and North Korea.

Indeed, two countries—Germany and Korea—with the same ethnic makeup, histories, and cultures were divided in the 20th Century into a communist half and a free market half, and in both cases the communist halves failed abysmally while the free-market halves thrived. Likewise, Taiwan thrived where the People's Republic of China remained extremely poor until it moved towards partial capitalism—and even now, per capita income in Taiwan is three times that in mainland China. Even when some of the DSA's proposed policies have been tried by capitalist but welfare-state countries, such as the European Union, the United Kingdom, Canada, Sweden, and Norway, they have failed as well.

The Democratic Socialists of America are simply ignorant when it comes to the policy results of the last century. Voters shouldn't trust ignorant politicians who fail to denounce such awful and dangerous ideas.

The post The Democratic Socialists of America Platform appeared first on Reason Magazine.

One morning in late September, Carli Heller opened up an artificial intelligence chatbot and began venting. She took aim at the Lee County Sheriff's Office in Florida, saying she was "going to shoot up the sheriff's right the f— now," she wrote to the phone app, according to a probable cause statement. Heller continued venting a day later, writing that it was "100% LAST CHANCE" and that she "GOT A NEW F—— GUN TODAY."

Anthropic's safety features triggered and sent the chats to its human review team to analyze. The team believed there was a big enough risk to escalate the risk to the FBI, which then notified the sheriff's office. Authorities arrested Heller on Sept. 30, charging her with making a written or electronic threat of a mass shooting or act of terrorism, a felony under Florida law to which she pleaded not guilty.

Heller admitted writing the messages but denied any intent to carry them out, the report says. She pleaded not guilty.

I doubt that this is a punishable threat, at least under the Florida law, Fla. Stats. § 836.10, 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. T.R.W. v. State (Fla. App. 2023) makes clear that "To prove the commission of a violation of section 836.10, the trier of fact must find that the defendant transmitted a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat." Simply typing a prompt into a chatbot, expecting it to be viewed only by the software, wouldn't qualify.

The more recent Supreme Court decision in Counterman v. Colorado (2023) says that a state may criminalize a statement if the defendant is reckless about the possibility of its being viewed as a threat, and not just if the defendant had the purpose of issuing a threat or knew that the statement would be viewed as a threat. Recklessness is defined as "consciously disregard[ing] a substantial [and unjustifiable] risk" that a human would see the statement and perceive it as threatening. Florida courts thus may allow punishment for reckless threats, without violating the First Amendment—though they could also stick with T.R.W. and require purpose or knowledge. See, e.g., C.R. v. Burke (Fla. App. 2026) (following T.R.W.'s purpose/knowledge requirement, three years after Counterman was decided by the U.S. Supreme Court).

But in any event, it seems unlikely that the woman was consciously thinking "This might get read by a human, who might feel threatened, but I don't care; I'll just type it in."  Rather, it seems much likelier that she was just assuming, as most of us do when using a chatbot, that we're talking solely to the machine and that our input will never reach a human.  And if that's so, then her statement just isn't a threat punishable under section 836.10.

And of course a prosecution would have to prove the woman's mental state beyond a reasonable doubt. So even if a jury thinks the woman might have been aware of the risk that this would be read by a human, that's not enough: It would have to be convinced that there's no reasonable possibility that she just assumed the text would go only to the chatbot. Such a finding of guilt beyond a reasonable doubt by the jury strikes me as quite unlikely, unless the accused had made some statement saying that she was hoping the statement would reach a human or at least knew that was going to happen (or maybe that she knew it was fairly likely).

The post Can a Chatbot Prompt Be a Punishable Threat? appeared first on Reason Magazine.