In this segment of Free Media, Reason Senior Editor Robby Soave and Daily Caller Editor in Chief Amber Duke discuss the recent news of former President Barack Obama supporting Michigan Democrat Abdul El-Sayed, who is running for Senate, on the campaign trail.
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The post Obama Campaigns for Abdul El-Sayed as Republicans Sound the Alarm appeared first on Reason Magazine.
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When President Donald Trump banned CNN, MS NOW, and Politico from the White House on September 18, he was clear about his motivation. Their coverage, he claimed, was "FAKE NEWS" full of "FICTION and LIES." It was "purposely negative," "one-sided," and "never good," he added. But after CNN et al. challenged their banishment in federal court three days later, the government's lawyers offered a different explanation: The president, they said, was trying to protect national security.
U.S. District Judge Timothy J. Kelly, a Trump appointee who issued a temporary restraining order (TRO) against the White House ban on September 24, was understandably skeptical of that rationale. And as the plaintiffs note in a brief they filed on Monday, Trump himself has had trouble sticking to the official story.
In a September 28 interview with Time, Trump reverted to his original justification for punishing CNN, MS NOW, and Politico. "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."
Trump evidently forgot what his underlings had said in court five days earlier. CNN et al. had "threatened national security," they averred, by publishing stories that included "sensitive or classified information." Despite that invocation of "nebulous and pretextual concerns about protecting national security," the plaintiffs note, "the President himself has continued telling anyone who will listen precisely what this ban is really about."
Trump's insistence on saying the quiet part out loud reinforces CNN et al.'s argument that his ban unconstitutionally discriminated against them based on viewpoint and retaliated against them for protected speech. Kelly, whose TRO was based on due process concerns, has not yet addressed those First Amendment claims. But he has made it clear that he is not inclined to credit the Trump administration's post-hoc justification for excluding the three news outlets.
The defendants "offer little to back up their asserted national security interest to justify revocation of Plaintiffs' hard passes," Kelly noted when he ordered the White House to restore those passes. "The Court is skeptical—at least on this record—that Defendants' interest in safeguarding national security is the actual motivation for, or is even advanced by, the revocation of Plaintiffs' hard passes."
Kelly elaborated on that point: "Nothing in the record that predates this suit suggests that the revocation of Plaintiffs' hard passes was motivated by national security concerns. Certainly, that is not what President Trump said when he announced that he was 'banning' Plaintiffs from the White House—instead, he focused on the alleged lack of truthfulness and negativity of Plaintiffs' reporting."
Attorney General Todd Blanche tried to resolve that contradiction during an appearance on ABC's This Week the day before Trump's Time interview. CNN, MS NOW, and Politico "refuse to report anything accurately," Blanche said, and "that is what is a national security problem."
How so? "When you have…complete misinformation coming out of the White House," Blanche explained, "that affects our relationship with our foreign partners" and "our relationship with our foreign enemies." The issue, he said, is "all about the information that the American people have a right to hear coming out of what should be respected media outlets." As evidence that "CNN doesn't report accurately," Blanche said "the information coming out of CNN and some of these other networks" is "almost 100 percent negative towards the president."
Notably, Blanche did not say anything about "sensitive or classified information," and his "national security" claim quickly morphed into Trump's standard complaint that his press coverage is overwhelmingly negative. "At some point," Blanche insisted, "the complete misinformation and the inaccuracy and the one-sided news out of certain organizations does become a national security issue."
Again, Blanche's reasoning was hazy. "What every American should expect is that when they are told something on any network or when they read something [in] the paper, that it even has a whiff of impartiality, that it even has a whiff of accuracy about what's actually happening," he said. "It is absolutely the president's duty to make sure that the American people are hearing accurate news. It doesn't have to be good for the president. It doesn't have to be everything's positive about what's happening in the administration. It has to be very accurate."
Blanche, in short, thinks it is "absolutely" the president's job to "make sure" that press coverage of him is "very accurate," which is why he had to ban CNN, MS NOW, and Politico from the White House. Also, it had something to do with "national security" because "misinformation" affects U.S. foreign policy interests in some unspecified way.
As the head of the Justice Department and a legal advocate with many years of experience, Blanche should be able to offer a more coherent explanation of the government's position. His failure at that task suggests the challenges of scrambling to defend the president's vindictive whims by portraying his petty vendettas as a public service.
The post Trump Keeps Contradicting the 'National Security' Rationale for Banishing Disfavored Journalists appeared first on Reason Magazine.
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In this segment of Free Media, Reason Senior Editor Robby Soave and Daily Caller Editor in Chief Amber Duke discuss new developments in the "Cornell Seven" lawsuit, especially in light of released audio between Jane Doe and one of the fraternity members.
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The post 'I Never Lie': Audio Recordings Raise New Questions About Cornell 7 Allegations appeared first on Reason Magazine.
]]>On March 24, 2023, the Chief Judge of the United States Court of Appeals for the Federal Circuit identified Complaint No. FC-23-90015 against United States Circuit Judge Pauline Newman under the Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 351–364, and the Rules for Judicial-Conduct and Judicial-Disability Proceedings of the Judicial Conference of the United States. On August 19, 2026, the Chief Justice of the United States transferred Complaint No. FC-23-90015 and any pending or new complaints relating to the same subject matter to the Eleventh Circuit Judicial Council, where it was assigned Complaint No. 11-26-90237.
Let's review the timeline.
On June 15, 2026, the Supreme Court denied cert in Newman v. Moore. And the period for reconsideration finished 25 days later on July 10. [Update: I incorrectly noted the Federal Circuit's decision was from July 2026 rather than July 2025. I removed that reference.] Then on On August 19, the Chief Justice transferred the case to the Eleventh Circuit. It isn't clear if Judge Moore asked the Chief Justice to reassign the case or if the Chief Justice simply pulled rank and took the case away from Moore. I lean towards the latter option. If so, kudos to the Chief for taking control. Better late than never, I suppose? But why now? Perhaps the Chief Justice was waiting for all pending litigation to conclude before taking the case away from Judge Newman?
After nearly three years of Chief Judge Moore waiting for Judge Newman to die, the case might actually find a favorable forum in Atlanta. May Judge Newman return to the bench as soon as possible.
Indeed, there is a parallel between Chief Judge Moore and Judge Southwick. Both judges care very much about who sits on their court and they seek to use their own judicial power to control who sits on the court. The judicial ethics mavens apparently see nothing wrong with either of their conduct, but I do. And for what it's worth, Judge Newman could have hand-picked her successor a long time ago, but has made the moral choice to serve until she can serve no longer.
The post After More Than Three Years, Judge Newman's Case Is Transferred To The Eleventh Circuit appeared first on Reason Magazine.
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Happy Tuesday, and welcome to another edition of Rent Free. In this week's issue, we have stories on:
But first, our lead story on the zoning angle behind a feel-good story about the world's oldest bartender.
The Washington Post yesterday profiled Irvin Koch, who, at the ripe old age of 103, is considered to be the world's oldest bartender.
The centenarian's establishment, Irv's Basement Bar, is quite literally in the basement beneath his home in Anne Arundel County, on the outskirts of Baltimore. The bar came with the house when Koch purchased the property in 1963. The cash bar proved lucrative enough that he's kept operating it ever since.
If running a bar out of your basement sounds like a fun idea, you are unfortunately out of luck. Koch's dive is Maryland's last true "basement bar": an establishment that has more or less been killed off by modern zoning codes.
As a lawyer for the county's liquor board told Baltimore's The Sun in a 2014 profile of Koch, "You can't do it these days. No one could come in now and do the same thing."
Koch's own establishment only survives because it was up and running long before the county's modern zoning and building codes were adopted. It's thus been grandfathered into the long list of county and state regulations adopted over the decades.
It's almost comical to count all the ways that Koch's existing business would be illegal today. Going through the list is also educational. It sheds light on the pieces of red tape silently at work blocking interesting "third places" like Irv's Basement Bar.
Per the Post's history, Koch's farmhouse was built as a private summerhouse in 1912, some four decades before the county adopted its first comprehensive zoning ordinance in 1952.
That initial lack of zoning allowed the residential home to be converted into a commercial inn with the basement bar sometime before Koch's purchase of the property. Today, that couldn't happen.
The county's zoning code places Koch's property in an R-2 low-medium density zone. Per the code, this zone is designed to create areas of exclusively suburban single-family housing. As such, a long list of commercial uses is flatly prohibited, including "taverns."
That would be enough to block Koch's bar in its current form. He could potentially try to convert the property into a country club, which is allowed in R-2 zones as a conditional use requiring special permits. Alcohol uses as an accessory use are also allowed as a conditional use.
Even if that were possible, the fact that Koch lives in the house above the bar would pose additional regulatory problems.
Anne Arundel's zoning code prohibits all home-based businesses that are not expressly permitted, and a bar is not one of those permitted businesses. Moreover, home-based businesses are not allowed to sell products that are not produced on site.
So even if Koch could somehow get his bar classified as a country club or other permitted R-2 use, he might have to move out of his longtime home so that it's no longer a primary residence subject to home-business restrictions.
While I'm not sure what the parking situation is at Irv's, the county's zoning code requires restaurants and taverns to have the greater of one parking space per three seats or one parking space per 200 square feet.
That could require Koch to pave over his lawn, even if his bar doesn't need that many spaces to accommodate his collection of regular customers.
Beyond the zoning code, Anne Arundel County also has a building and fire code with specific requirements for how taverns must be built and operated. Odds are that Koch's 114-year-old house doesn't completely conform to those code requirements either.
The customers' bras hanging from the wall might not be the county health department's favorite thing in the world.
All of that is to say, there's a reason that Koch's bar is the last of its kind.
What's notable is that, even though zoning and building codes stop Koch's bar in eight different ways, everyone seems to love it.
In the media profiles, regular customers give glowing testimonials about it being their favorite bar. The dive's walls are covered in graffiti from tourists who traveled to Maryland just to have a drink there.
No one has a problem with Irv's bar. Even the regulators seem to have given it a lot of grace. Its grandfathered status notwithstanding, one could assume that officials could find some reason to more tightly regulate Koch's establishment.
As it stands, no one has a problem with the basement bar, and no one is in a rush to force it to comply with all the rules a normal bar would have to.
If that's true, one wonders what's so desirable or necessary about applying all the zoning regulations that would kill off Koch's bar to every other business in the county.
Surely a broader amount of regulatory forbearance would allow for a lot of new, interesting, and novel businesses like Irv's to spring up.
San Francisco voters passed a special tax on vacant homes back in 2022, but its actual implementation has been stalled in the courts ever since.
Now it looks like the tax, which was supposed to start raising revenue in 2024, will never go into effect. Earlier this month, a division of the state's appeals court upheld a lower court ruling that had blocked the tax.
The plaintiffs in the case were property owners who argued a tax on their empty or irregularly occupied properties violated a long list of their legal and constitutional rights.
In an opinion issued earlier in September, Justice Kathleen Banke, joined by two other justices, agreed that the vacancy tax was superseded by a state law that guarantees landlords the ability to withdraw their property from the rental market.
San Francisco had tried to argue that it was not interfering with that right. Rather, it was merely taxing people for exercising it.
Banke found that unconvincing, writing, "As the City apparently sees it, while a property owner, indeed, has the right to exit the residential rental business, they have no correlative right to remain out of that business and can be pressured back into it on pain of significant taxation. This circularity in reasoning is a patently unreasonable reading" of state law.
Thus far, San Francisco has declined to say whether it'll appeal the ruling to the state Supreme Court. For the time being, the tax is dead.
For a more detailed discussion of the case, see my full piece from last week. Here is also a piece on the larger issue of vacant housing in expensive cities.
In less feel-good news, Spain is experiencing increasingly riotous protests after the country's parliament rejected legislation that would have imposed emergency rent controls and eviction protections.
In the city of Valencia over the weekend, protesters were dispersed with rubber bullets and tear gas after they'd breached a security perimeter at a real estate conference, reports the Associated Press. In Madrid and Barcelona, demonstrators have turned public squares into protest encampments.
The trigger for these protests was the eviction of an 87-year-old pensioner by the real estate company that had bought her once rent-controlled apartment and then substantially raised the rent.
That eviction came amidst rising anger in Spain over increasing rents and anemic economic growth.
The Spanish Parliament's narrow rejection last week of emergency rent controls and eviction moratoriums proposed by the country's left-wing minority government accelerated the street action.
Those provisions have since been approved by lawmakers, and Spain's prime minister has called for early elections.
The U.S. Supreme Court has agreed to hear a religious land use and liberty case involving Catholic priests in Kentucky who were denied permits to build a grotto featuring a Marian shrine.
Zoning officials in Park Hills had initially granted the Missionaries of Saint John the Baptist a conditional use permit to build their planned grotto. That permit was then challenged by neighbors who worried about the traffic impacts of the shrine.
A lower court sided with the neighbors and rejected the shrine, as did the Kentucky Supreme Court, which reasoned that zoning restrictions on a shrine's size are not a substantial burden on religion.
The priests appealed that decision, arguing that the zoning restrictions are a substantial restriction on their religious mission in violation of federal law that protects religious land uses.
This will be the second religious land use case the Supreme Court has agreed to hear recently. Back in June, it also agreed to hear a case stemming from an Ohio city's restrictions on Jewish prayer services in a private home.
Incredible reporting from @sfchronicle's Kate Talerico.
Supply constraints -> high median income -> for profit investors ripping off state & city with rent-raising, tax-avoiding "conversions" of market-rate into "affordable" housing.
1/3 pic.twitter.com/EE90qyJf6h
— Chris Elmendorf (@CSElmendorf) October 5, 2026
The post The 'World's Oldest' Bartender's Very Illegal Basement Bar appeared first on Reason Magazine.
]]>Judge Ho observed:
Any judge who abuses his office to promote his own interests—including the desire for future appointment—has violated the judicial oath and doesn't belong in his current post, let alone whatever new post he seeks. There are, to be sure, both honorable and dishonorable people on the bench—just as there are in every other segment of life. Just as there are no doubt those on the bench who have strong ambitions for future office, there are others who are happy to be public servants, but who would be just as happy earning their living by some other means. For the outside observer, however, it can be difficult to discern which is which. And therein lies the quandary for the dutiful judge. How should a good judge respond when it's suggested that his exercise of judicial authority might be tainted by his private, personal desire for elevation to another post? . . .
Professor Blackman's point is simple, but important. No one has the power to look into another man's heart and ascertain his actual motivations or ambitions. So the accusation of auditioning is indeed irrefutable. Certain actions may seem like auditioning to some, but to others, it's simply doing the job as the judge best sees fit. There's no solution. So the good judge simply accepts that criticism is a fact of life—and that unrebuttable charges come with the job. The First Amendment guarantees the right of every citizen to criticize public officials—whether the criticism is fair or unfair.
Judge Ho and I are often accused of auditioning. And there's no way to disprove the accusation. Who can look into our hearts to know our true motivations? But as I often remind people, if we are auditioning, we are doing so very poorly. The way to get ahead in the world is to keep your head down, make powerful friends, and avoid doing anything that could prove controversial. Look no further than Todd Butler's nomination to the Fifth Circuit. Fight to overrule Roe v. Wade and you are stuck on the sidelines. Defend municipalities who violate the First Amendment rights of street preachers and you get a circuit court nomination.
The truth is that those who lob the auditioning accusation are those who are most likely to audition in their own careers. I noted in my post:
The fact that everyone auditions demonstrates why this charge is so common. As a general matter, people project onto others the flaws they see in themselves. If you accuse me of auditioning, you can be pretty sure this is something that you have done in the past. Think carefully.
I recently saw some suggestion that I was on some undisclosed payroll. I wish! The truth is that I speak my mind, which is not conducive to any paying client. Folks may recall that I had to resign from a job that offered a regular paycheck on a point of principle. I am grateful some outlets offer me modest honoraria to speak and lecture, but I always retain full control over my message--and I often withdraw works when the editing becomes too intrusive. Indeed, I wrote several posts publicly agonizing about whether to put some of my content behind a paywall as a means to generate some revenue, but I ultimately decided not to so my discretion would remain unfettered. By contrast, as a general matter, managing partners at firms play some role in setting the compensation of their colleagues. Like I said, people project onto others the flaws they see in themselves.
I wish things were different with the judicial selection process. I wish that Presidents would nominate those who were unafraid to challenge political orthodoxies. Steve Calabresi's post today on the 40th anniversary of Justice Scalia's swearing-in provides a flashback to a different time.
On June 14, 1986, Judge Scalia was invited to speak at a conference organized by Attorney General Meese. The timing was "risky" as President Reagan would interview Scalia for the Supreme Court vacancy on June 16.
Scalia could have played things safe, but that was not who Scalia was. Calabresi writes:
Given this, most lawyers would say something mild, uncontroversial, and ingratiating toward the attorney general. But Judge Antonin Scalia was not a normal, cautious lawyer. Indeed, as a law professor, he liked to teach against the views of his class and tell them things that they did not ordinarily want to hear. Or to make a more historical reference, Justice Scalia was the type of person who would speak to King Henry VIII as if he were St. Thomas More. He was temperamentally unable to flatter or to say something that he did not believe to be true.
And Scalia would not flatter the sitting Attorney General. He took the occasion to explain why Meese was wrong to focus on "original intent" and instead should focus on "original public meaning." That speech set the stage for the modern originalist revolution. Scalia took a risk at the most inopportune time, and prevailed. And Attorney General Meese approved:
Ken Cribb, who was then Ed Meese's counselor and chief of staff, cleverly took a name tent card from his table, folded it inside out, wrote "Stipulated" on it, and showed it to Attorney General Meese. Attorney General Meese nodded approvingly, and Cribb put the tent card saying "Stipulated" on the podium in front of Judge Scalia before the judge had even finished speaking.
On June 17, President Reagan nominated Scalia for the seat, and the rest is history.
Calabresi concludes:
Whether one agrees with their views or not, I believe this story shows how open-minded and humble Attorney General Ed Meese was, and how gutsy and principled Judge Antonin Scalia was. That's something worth reflecting on four decades later.
Alas, that was forty years ago. Now we are stuck to Lurch through the audition trap.
The post Lurching Through The Audition Trap appeared first on Reason Magazine.
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A local school board in Minnesota has taken censorship to absurd heights.
During the public comment period at Foley Public School Board meetings, concerned citizens are forbidden from saying not only the names of school staff and officials but even their titles. These revelations come from Blake and Katy DeMarais, concerned parents of a disabled and nonverbal special education student in the district. Over the summer, the parents complained that the district was failing to provide educational services to their son, only to be censored in a public meeting.
During the board's June 22 meeting, Katy DeMarais opened her comment by stating she would like to speak about her family's "experience with the special education director and district leadership." According to a video posted by the DeMaraises, a board member's voice then interrupts, telling Katy DeMarais that "I'll have to stop you…because we're not allowed to speak about people in the public meeting." When Katy DeMarais proceeded to finish her public comment, she would verbally say "blank" when referencing the special education director.
Later in the same meeting, Blake DeMarais gave his own public comment, which was also recorded. In the video, Blake DeMarais begins reading an email sent to them by the district's superintendent, but when he says nothing more than "superintendent," he gets shut down too. "Blake," the voice intones, "you're done. You can't talk about the superintendent. We already addressed this."
Nearly two months later, it happened again at an August 17 meeting. Visibly upset, Blake DeMarais reads an email from the district's lawyer. Quoting the email, he mentions "Superintendent Posthumus" and is immediately silenced. "Blake, I need you to stop at this point," a voice interrupts. "When you start talking about staff members, that's when we have to stop."
"Do you know what viewpoint discrimination is?" Blake DeMarais asks. "That's what you're doing to me right now."
He's right, of course, but the absurdity only gets worse: The board is also violating its own policy and state law. According to the policy adopted by the board in August 2024, personnel data that is public information includes both the name of the employee and their job title. It also includes a slew of other information, such as "actual gross salary" and "the existence and status of any complaints or charges against the employee, regardless of whether the complaint or charge resulted in a disciplinary action." The district's own policy tracks Minnesota law, which also states that a government employee's name and job title are public data.
Regardless of what district policy or Minnesota law says, the Foley school board trampled on the DeMaraises' First Amendment rights. When a school board opens a meeting to public comment, it can't censor its constituents for criticizing school staff, much less simply naming them or mentioning their titles. A government body can constitutionally restrict some speech during a public comment period, such as limiting comment to a maximum allotted time or ensuring it's on topic, but all those restrictions must be reasonable and viewpoint neutral. In its treatment of the DeMaraises, the Foley Public School Board has hit the trifecta, violating its own policy, state law, and the First Amendment.
There's a good reason that school staff names and titles are public. The community has the right to know how their tax dollars are being spent and whether the public servants they pay are doing their jobs effectively, ethically, and constitutionally. How can parents in Foley public schools know if the adults in charge of their kids' education are doing their jobs if nobody can criticize them by name or even mention their titles?
The DeMaraises won't be silenced. During the last school board meeting in September, Katy DeMarais stepped up to the microphone once again to advocate for her son and reminded the board members of their duty to the families they serve.
"Parents have a right to speak about their experiences—the good, the bad, and everything in between," she said. "Advocacy is not harassment."
The post These Minnesota Parents Were Censored at a Public Meeting for Saying School Employees' Job Titles appeared first on Reason Magazine.
]]>For 10 years, The Reason Roundtable has been proving that the best political conversations aren't the ones where everyone agrees—they're the ones where smart people challenge each other, chase unexpected tangents, and somehow end up making more sense of the news than anyone else. Join Nick Gillespie, Katherine Mangu-Ward, Peter Suderman, and Matt Welch as they celebrate a decade of the podcast with a special live taping. It's your chance to watch the chemistry, the disagreements, the running jokes, and the occasional exasperated sigh happen in real time.
The post Live <i>Reason Roundtable</i> 10th Anniversary Show! appeared first on Reason Magazine.
]]>ORDER granting 91 Motion for Extension of Time to File Reply. Plaintiff's application for an extension and the querulous opposition (ECF No. 92) continue the path of bikeshedding or the application of Parkinson's Law of Triviality. Plaintiff's Reply shall now be filed on or before 9/21/2026. No further extensions will be granted.
For more on the subject, see here.
The post The "Application for an Extension and the Querulous Opposition Continue the Path of Bikeshedding or … Parkinson's Law of Triviality" appeared first on Reason Magazine.
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OpenAI CEO Sam Altman has drawn scrutiny from across the political spectrum for his take on the future of AI.
On a recent podcast, Altman attempted to distance himself from more pro-regulation AI companies, such as Anthropic, arguing that society must think about the tradeoffs associated with slowing down AI advancement. "I think one of the biggest differences between us and some of the stricter, let's say, AI safety people, is we believe that the world should accept some bad things happening for the benefits of this technology," he said.
This comment in particular drew criticism from the likes of Florida Republican Gov. Ron DeSantis, who said, "And a handful of tech oligarchs get to make that decision for the rest of us? No dice." New York University professor and AI skeptic Gary Marcus joined in, saying that Altman was "saying the quiet part out loud: suck it up, so you can make us rich and powerful," and former diplomat Patrick Gaspard called it "freaking insane." Some commentators resorted to describing Altman's comments as "sociopathic bullshit."
The argument Altman is making is one of tradeoffs. He rightfully points out that no technology is 100 percent safe, that "some bad things are going to happen," and that we ought to still have a "lighter-touch" regulatory approach. There's no way to guarantee a risk-free environment, that there will not be major hacks, scams, or negative consequences of AI, Altman says. Notably, the OpenAI CEO said that giving "a single lab in San Francisco" unchecked power is "a completely unacceptable trade-off from a perspective of liberty and human agency and people self-determining the future."
The basic principle of Altman's argument is relatively ordinary: Society tolerates risk from virtually every transformative technology because zero-risk societies don't innovate. Cars, for example, killed over 36,000 people last year in the U.S., and yet there is a consensus that the benefits of cars far outweigh the risks—which are declining thanks to innovations like autonomous vehicles, which are far safer than human drivers and may eliminate car deaths (if the government allows them to operate).
The internet itself has enabled fraud, bullying, child exploitation, and countless other horrible crimes. Medicines have side effects, and even electricity itself electrocutes hundreds of people every year.
The relevant question is not to ask whether something bad can happen, but whether the expected benefits outweigh the expected harms, and whether companies can mitigate those harms without destroying the benefits.
So far, AI has already proven to have an enormous number of benefits. In medicine, AI has helped discover a new antibiotic, accelerate the drug discovery process, identify potential Alzheimer's disease causes, make strides in breast cancer treatments, and a whole host of other lifesaving advancements.
AI has improved forecasts for hurricanes, floods, and earthquakes, giving communities more time to prepare for disasters. Of course, none of this means that harms should be ignored. The point is that every technology involves tradeoffs, and the task is to reduce risks without regulating away the benefits.
President Donald Trump has, at least so far, largely rejected the notion that government regulation is necessary in the case of AI. The administration's approach is reportedly going to focus on liability, meaning that companies can self-regulate but are directly liable for any harms they pose.
As this discourse around AI continues, Altman's broader point is certainly worth remembering. Progress requires tradeoffs. In trying to eliminate every possible risk, we should be careful not to eliminate the benefits too.
The post Sam Altman Says 'Some Bad Things' Will Happen With AI. That Doesn't Mean We Should Stop It. appeared first on Reason Magazine.
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The federal government built a system that records the lawful trading activity of tens of millions of Americans, invades their financial privacy, and makes investors pay for the surveillance. The Securities and Exchange Commission (SEC) calls it the Consolidated Audit Trail, or CAT. Now the agency is considering "fundamental changes" to the setup. It should eliminate the system instead.
CAT, launched in 2020, records almost every order, modification, cancellation, and execution by tens of millions of investors. The SEC requires these records so regulators can search trading activity and reconstruct it long after a trade occurred. The records are collected before there is probable cause, reasonable suspicion, or even an allegation of wrongdoing. Lawful activity is gathered first and searched later. Even the SEC has acknowledged that CAT raises civil liberties, privacy, confidentiality, and cybersecurity concerns.
Congress did not authorize the SEC to create this system or appropriate money to run it. The agency instead required brokers and exchanges to build and pay for it, with costs that can reach investors. That is a tax in all but name, imposed without the vote or the appropriation the Constitution requires. And even Congress cannot authorize a search the Fourth Amendment forbids.
A trading record also cannot explain why someone made a trade. Though it predated CAT, the SEC's case against Mark Cuban shows why that matters. The SEC sued Cuban in 2008 over trades he made in 2004. He fought the case for five years and later said he spent approximately $12 million in legal fees before a federal jury found him not liable.
Under CAT, regulators no longer need to begin with a well-known individual or a conspicuous transaction. The system creates a searchable record of trading activity across the market, allowing the government to reconstruct the actions of ordinary investors long after the fact. Cuban's case shows how a chronology of communications and trades can become the foundation for a serious allegation. CAT makes it possible to assemble those chronologies far more broadly and systematically. The record shows what happened, but it does not show what the investor knew.
The SEC has reduced some privacy risks. In 2025, it eliminated requirements to report customer names, addresses, and years of birth for most U.S. natural persons. Early this year, it approved additional changes requiring previously reported identifying information to be deleted or made inaccessible to regulators. But anonymized identifiers still link trading activity to customers, enabling regulators to obtain someone's identity through brokers. Removing names does not erase that history.
Removing names also does not remove the cost. Brokerage firms still must maintain systems to report to CAT, reconcile records, and correct errors. Firms can absorb those expenses or pass them along through higher prices or fewer services.
For smaller firms, absorbing the expense can be harder. A reporting system and the staff to run it do not cost proportionately less just because a firm has fewer clients. A large brokerage can spread those costs across a broad business. A boutique helping young companies raise capital has less room to do so.
That expense can affect which offerings reach investors. A small offering may no longer be worth pursuing once another compliance cost is added. When a firm walks away, an entrepreneur loses a path to public capital, and investors lose a chance to participate. The SEC can narrow access to the market without prohibiting a single offering. An agency charged with facilitating capital formation should account for those lost opportunities as carefully as it counts the enforcement benefits it claims.
The U.S. Supreme Court rejected the SEC's positions on its administrative-proceedings regime in SEC v. Cochran (2023) and SEC v. Jarkesy (2024). And in 2025, the 11th U.S. Circuit Court of Appeals threw out the SEC's CAT funding order, which directed how its costs would be allocated among industry participants. The SEC responded with a temporary plan that still charges brokers, exchanges, and the private Financial Industry Regulatory Authority for CAT.
Concerns about how the SEC uses its power are not theoretical to me. I saw that firsthand in Powell v. SEC. For more than 50 years, the agency required defendants who accepted settlements with sanctions to agree never to deny its allegations publicly. Thousands of Americans were bound by that restriction. I was one of them. We challenged the policy, and this year the commission withdrew it while our petition for the Supreme Court review was pending.
That policy had stood since 1972. Americans should not have to spend years fighting an agency to get it to question the limits of its own power. Investors challenging CAT should not have to go through the same ordeal.
Changing who runs CAT, who pays for it, or which names it stores does not cure the underlying problem. The SEC cannot fix a lack of authority by rearranging the program, and Congress cannot make an unconstitutional search lawful by funding it. Shut it down.
The post The SEC Is Watching American Investors' Trades. That's a Privacy Nightmare. appeared first on Reason Magazine.
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Hello and welcome to another edition of Free Agent! It's a good week to keep your mouth shut.
Sorry, Dad, but we're leading off with soccer today. That's what happens when national governments get involved in sports! Then it's time to be mad at Nick Saban and we'll close with thoughts on the MLB playoff format.
If you're seeing political TV ads during
for elections far away from where you live, that's because at this stage in the cycle it is likely less expensive to buy a TV ad during a regional/national NFL game than to buy it locally. Or there's more inventory nationally.
That's…
— Ed O'Keefe (@edokeefe) October 4, 2026
Always be careful who you go into business with.
That's a lesson the Premier League may now be learning the hard way. If you thought it was a lot when the Los Angeles Clippers seemed to send tens of millions of dollars to Kawhi Leonard to circumvent the NBA salary cap, just wait until you hear what Manchester City's owners did to avoid financial rules in soccer.
Over the course of a decade, the team allegedly hid more than $1 billion in fake sponsorship deals. Those deals cover 2009 through 2018, and it's unknown if, and to what extent, the same thing has been going on since then (the club has not been fully cooperative with the Premier League's investigation).
If Manchester City arranged more than $1 billion in fake sponsorship deals between 2009 and 2018, it's probably fair to assume that much of the revenue generated from 2020 to 2025 was also fake. They could have at least added a dip during COVID to make it look more realistic. pic.twitter.com/vwUbcot2NJ
— Joe Pompliano (@JoePompliano) October 1, 2026
In short, while American sports fans demand their billionaire team owners spend more of their personal funds on their teams, Manchester City went ahead and did it. That's easier to do when your team is, for all intents and purposes, owned by the United Arab Emirates. The club is owned by City Football Group, which is 81 percent owned by the private equity firm Abu Dhabi United Group, which is owned by Sheikh Mansour—the UAE's vice president and a member of the royal family (and you thought President Donald Trump's entanglements with private companies were bad!). Since 2009, the team's jersey sponsor has been Etihad Airways, and since 2011 they've played in the Etihad Stadium in the Etihad Campus of Manchester—Etihad Airways, of course, is a state-owned enterprise of the UAE.
Soccer doesn't have a salary cap, but it has "financial fair play" rules where owners are not allowed to use outside wealth to cover the club's losses (basically, teams are supposed to break even over a certain period of time). Player acquisition is also much more free market than in American sports leagues—there's no draft to send the best young talent to bad teams, so wealthy teams can just buy the rights to the best players in the world and then give them lucrative contracts.
The scheme worked. Man City won the Premier League three times in that 2009–2018 timespan (five more since), plus several domestic cup trophies and the European Champions League in 2023. Their women's team has enjoyed recent success too. It's worth mulling how much of their success, fueled by the shady sponsorship deals, created even more unjustly gained sponsorship revenue.
Now, the powers that be in soccer are trying to decide City's punishment, while the club readies its appeal. The team might be stripped of past trophies, fined into oblivion, given a massive points deduction in the Premier League table, or automatically relegated to the second division.
If any of that happens, the UAE is threatening to pull back on massive investments from the United Kingdom.
We do not own a football club but if you punish this football club that we do not own we will punish you https://t.co/e4AII1T8WR
— Chris (@CWeatherspoon_) October 2, 2026
All that creates a second point of pressure on the Premier League via their own government. "I would be really concerned to lose them," Prime Minister Andy Burnham (the former Manchester mayor) said about the possibility of Man City's owners taking their ball and going home by selling the team if their punishment is too harsh. So competitors and fans are calling for the harshest possible punishments, but on the other side are two governments. (Don't worry, club chair Khaldoon al-Mubarak has diplomatic immunity.)
What a mess. That's why it's important to be careful who you go into business with. You might end up working with liars, cheats, and shady characters—or worse, a government.
Nick Saban has a silly argument to make about capping student-athlete pay but not coach pay. They are "totally different markets," he said. "How much value does a coach create for a university?"
Saban, no doubt, created plenty of value for the University of Alabama. But he couldn't have done that without Derrick Henry, Julio Jones, and many more star athletes who created incredible value for Saban and the university while getting very little in compensation.
He's right of course. Player pay and coaching pay ARE totally different markets.
That's why in every pro sports league, the best players are paid significantly more than the best coaches. They're way more valuable. https://t.co/I3btb9F422
— Rodger Sherman (@rodger) September 30, 2026
Yet, in case you missed it last week, the Senate passed a bill (the Protect College Sports Act) to limit spending on student-athlete compensation while rejecting an amendment to limit spending on coaches. Its backers say there's runaway spending on student-athletes, but say little about all the spending on coaching salaries and buyouts.
Congress shouldn't pass a law at all limiting that spending, in my opinion, (just look at all the problems exemplified by Manchester City and the Clippers above!). But if they're worried about athletic spending getting out of control, then just limiting spending on student-athletes won't fix the problem—universities will find other ways to spend on athletics to get the same result they want, which is essentially better marketing than any commercial can ever provide.
While we're on the subject, I have another complaint about the student-athlete compensation cap in the Protect College Sports Act. The cap isn't flat over time, it's set to rise with inflation—permanently. But all the evidence we have from professional sports shows that athlete salaries rise faster than inflation, even in salary cap systems. By tying the cap's rise to inflation, Congress is basically making it much better to be a student-athlete today while screwing over the athletes of the future—athletes who don't currently have a voice to complain about it.
Another postseason, another year to complain about the MLB playoff format—except this time, with a collective bargaining agreement in the works (however far off that may be), the format may actually change before the next time the playoffs roll around (again, however far off that may be).
I think it's tough to look at the teams eliminated in the Wild Card round and argue they deserved to advance instead. The Red Sox were eliminated by the Yankees, who had six more wins in the regular season. The Astros, with a negative run differential and the worst record for a division winner in baseball history, were knocked out by the White Sox, who had been in a division title fight but came up just short. The Cubs forgot how to hit and were knocked out by the Padres. The Phillies got sent home by the Braves, who had six more wins and a better run differential by the slight margin of 101.
But I still hate the three-game format. Your team spends months and months looking at their playoff spot, and if you have two bad days in a row it ends. I've had flight delays last longer than these postseason runs. Does it really feel like your team made the playoffs?
I'd be fine going back to the format with just one wild card team, or two wild card teams if we have to do a play-in game (don't call it the playoffs, though!). But most importantly, make the divisional round a best-of-seven series (inventory for TV is king, here). Give people at least a little bit longer to have their hope before the Dodgers inevitably slam that door closed.
A lot happened this week, but it's hard to resist a multisport goalie goal double feature.
THREE DAYS INTO THE SEASON AND WE ALREADY HAVE A GOALIE GOAL!! pic.twitter.com/4EeZoqz3Wv
— NHL (@NHL) October 2, 2026
GOALIE GOAL GOALIE GOAL GOALIE GOAL
Jordan Farr heads home the late equalizer for @LoudounUnitedFC!
pic.twitter.com/4LzbzaDp4f
— USL Championship (@USLChampionship) October 4, 2026
That's all for this week. Enjoy watching the real game of the weekend, as future Man City opponents Swansea City and Norwich City face off in the EFL Championship (7:30 a.m. Eastern on Saturday on CBS Sports Network).
The post If Manchester City Weren't (Basically) Owned by the UAE, Their Scandal Would Be a Lot Less Complicated appeared first on Reason Magazine.
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On Monday, the Energy Department unveiled a conditional loan package of up to $4.2 billion to retail electricity and power generation company Vistra Corp. to finance upgrades to nuclear power plants in Ohio and Pennsylvania.
The loan will fund the uprating—a process that increases electricity generation at existing power facilities by improving equipment—of three of Vistra's nuclear power plants. This includes a 1.3-gigawatt nuclear reactor in Perry, Ohio, a 900-megawatt nuclear reactor in Oak Harbor, Ohio, and a two-unit 1.9-gigawatt nuclear power plant in Shippingport, Pennsylvania. Together, the three power plants generate enough electricity to power roughly 3 million homes. Under the agreement, the Energy Department could expand its loan commitments to Vistra to include the company's Comanche Peak nuclear power plant in Texas. The agency said the deal as a whole could "add 433 megawatts (MW) of new nuclear capacity," although funding is contingent on Vistra meeting "certain technical, legal, environmental, and financial conditions."
Energy Secretary Chris Wright justified the release as a necessary step to deliver "more affordable, reliable, around-the-clock energy for American families and businesses." It's the latest in a series of government-backed loans issued through the Energy Department's Office of Energy Dominance Financing (EDF)—formerly the Loan Programs Office (which served as a chief financier of the Biden administration's green agenda)—acting under President Donald Trump's executive order to "work with the nuclear energy industry to facilitate 5 gigawatt of power uprates to existing nuclear reactors and have 10 new large reactors with complete designs under construction by 2030."
The EDF has over $289 billion in loan authority, $250 billion of which is available through September 30, 2028, thanks to the One Big Beautiful Bill signed into law last year. Excluding the Vistra commitment, the agency has committed at least $18.5 billion to nuclear power projects. This includes $17.5 billion to finance five projects to accelerate the deployment of those 10 new large nuclear reactors nationwide. It also includes a $1 billion loan to help finance a revamp of the Three Mile Island nuclear power plant in Pennsylvania.
With rising energy costs and increased demand, lawmakers nationwide have joined the private sector in exploring nuclear energy as a reliable power source. A 2026 report by the Nuclear Energy Institute (NEI) shows that in the past year, 45 states have taken legislative, regulatory, or executive action—some in the form of tax breaks—to support new or existing nuclear energy generation. At the forefront of this nuclear renaissance, the Trump administration has been eager to spur private capital by showing its willingness to do the same: It's continuing measures such as a $900 million subsidy program to finance small modular and other advanced nuclear reactors.
Yet aside from easing permitting regimes or loosening regulations, there's little role for the government to play in an industry that the private sector is eager to support.
The NEI's 2026 Nuclear Costs in Context report shows capital spending in America's nuclear industry rose to $7.59 billion in 2025, up from $6.10 billion the previous year, including $365 million to uprate existing nuclear power plants. So far in 2026, investors have spent $6.22 billion on startup companies developing nuclear energy technology and infrastructure, $1.9 billion more than in all of 2025, according to Crunchbase News. Globally, the International Energy Agency reported that investment in nuclear energy topped $80 billion in 2025.
With innovation and a commitment to exploring new technologies, America's nuclear industry is making a comeback.
Instead of letting the market identify and invest in the nuclear power plants worth upgrading, the Trump administration would rather pick winners and losers so it can portray the president as the driving force behind the sector's growth.
The post The Energy Department Is Offering $4.2 Billion in Loans to Nuclear Projects in Ohio and Pennsylvania appeared first on Reason Magazine.
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"Justice Alito confirms he is considering retirement."
So declared a recent attention-grabbing headline at Politico, which probably caused a blood pressure spike among those readers who got the mistaken impression that the retirement under consideration might be imminent.
The full story was rather less exciting than the headline. What happened was Justice Samuel Alito, age 76, told CBS News that retirement is "something that I think that somebody at my age has to think about every term." In other words, Alito had already thought about packing it in earlier this year and decided against it. As Alito told The Wall Street Journal back in August, "obviously I'm here for another term." By Alito's own telling, the soonest that he would consider retiring is sometime next year, after the Supreme Court's latest term—which began yesterday and doesn't end until late June or early July 2027—is over and out.
The funny thing about all this Alito retirement talk, as I've noted before, is that Alito's conservative fans have been the ones trying so hard to push him out the door. They fear, perhaps wisely, that the Democrats will gain control of the Senate in next month's midterm elections and President Donald Trump's chances of successfully appointing another justice to the Supreme Court will drop to somewhere less than zero. Had Alito retired this past summer, as those conservatives clearly wanted him to do, Trump's replacement pick would already be dressed in black robes after breezing through confirmation by the Republican-controlled Senate.
Alas, if next month's big midterm elections go against the party of Trump, we may never get the chance to hear Justice Kid Rock on the mic during oral arguments.
The Supreme Court kicked off its 2026–27 term yesterday with a whopper of a case. At issue in Suncor Energy, Inc. v. County Commissioners of Boulder County is whether a local government may sue an energy company over the adverse effects of global climate change or if the suit, filed under state law, is preempted, or barred, by federal law. State and local governments around the country, which have either launched or are contemplating the launch of comparable suits of their own, will be watching this one closely.
Kannon Shanmugam, the lawyer representing Suncor Energy and Exxon Mobil, told the justices that "because of the ambient nature of air and water and the conflicting rights of states, this Court has held for over a century that federal law governs interstate pollution claims. That principle applies with even greater force," he argued, "to claims involving global climate change."
Kevin Russell, the lawyer representing city and county officials in Boulder, Colorado, countered by arguing that "since the founding, states have had the power to provide tort remedies for injuries occurring within their borders even when the conduct causing those injuries occurred elsewhere."
This case falls under a heading that we might call "regulatory federalism." Congress has passed various laws aimed at addressing the problems caused by pollution. Does that kind of federal action always preempt the states from taking far-reaching actions of their own, or is there room for the states to act in addition to whatever the federal government has done? And if there is room for some federalism here, what's the correct balance to strike between federal and state authority?
Notably, this case also has the potential to come out as a rare 4–4 split because Justice Alito has recused himself over the fact that he owns stock in oil companies. Alito's absence means that if just one Republican appointee joins the three Democratic appointees in ruling against the energy companies, as Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson all seemed inclined to do, that tie would leave in place a decision by the Colorado Supreme Court in favor of letting the local government's lawsuit proceed.
Judging by the oral arguments, the outcome seemed too close to call. A decision is expected by late June 2027.
The post Alito Talks Retirement appeared first on Reason Magazine.
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Rentrée, interrupted: The fall season is termed rentrée in France, referring to the return to work and school after summer breaks. But this autumn reset is different: People appear to be afraid France is spiraling into financial crisis, and protests—by students and unionized workers alike—have roiled multiple industries as citizens voice their discontent, with 90,000 or so protesting across the country.
"On Tuesday, teachers and other public workers plan rallies against proposed wage freezes as the government labors to pass a budget," reports The New York Times. "They will join thousands of students who have blockaded schools to protest underfunding that has led to crumbling facilities and a shortage of teachers." Of course, it's not clear to these protesters how increasing funding for public services might deepen the fiscal hole the government finds itself in.
"The government says 215 students and 715 police officers have been injured since [protests] started," per the BBC. And polls are showing far-right Marine Le Pen performing rather well ahead of the 2027 presidential elections, further contributing to political tensions.
Currently, "the country's public debt stands at roughly $4 trillion, which is 119 percent of its annual economic output," noted the Times. "With rates on French government bonds spiking, the cost of servicing that debt is projected to increase to roughly $100 billion in 2027."
"On top of that, France faces higher healthcare and pension costs because of its aging population, as well as increased military spending driven by the war in Ukraine and the disengagement of the United States," the Times continued. Oil and gas prices remain high, mostly due to tensions in the Middle East. And France's 10-year borrowing rate has risen above 4.95 percent—the highest level since July 2002 (yet lower than the U.S.'s right now). The gap between French and German yields widened past 130 basis points, the largest since the eurozone sovereign-debt crisis of 2012. French 10-year yields now exceed Italy's—an ominous milestone.
In order to stabilize France's finances, the prime minister wants to freeze spending on select social programs and raise some taxes; the budget deal might go through, but is reliant on Le Pen's party (which holds 118 of the 577 seats in the National Assembly) to not sink the legislation.
All of this requires the formulation of a new consensus by a reluctant public: France cannot afford its welfare state, and no amount of violence in the streets will change that reality.
Scenes from New York:
At the risk of being a libertarian killjoy, I don't think that hosting scavenger hunts is one of the legitimate functions of the state. https://t.co/ylS3b1guRZ
— Chris Freiman (@cafreiman) October 5, 2026
The post French Tantrum appeared first on Reason Magazine.
]]>The brief seeks to explain to the Court why the underlying legal issues in this case are important and merit the Court's granting review. Like most other amicus briefs supporting petitions for review, it doesn't seek to argue about the truth or falsity of petitioner's statements: The Court generally grants review to resolve conflicts about what the right legal rule should be, not to resolve factual disputes. (You can also read another amicus brief supporting review, co-signed by our own Randy Barnett, among others.)
* * *
Summary of Argument
The last ten years have seen many attempts to punish or compel professionals' speech in the service of broader ideological goals. This Court rejected two such attempts, in NIFLA v. Becerra, 585 U.S. 755 (2018), and in Chiles v. Salazar, 607 U.S. 627 (2026). It should likewise consider the constitutionality of the punishment in this case—a punishment that, if left unreviewed, portends still more such attempts.
Petitioner John Eastman was disbarred in large part based on his public political statements. The State Bar concluded those statements were false, and therefore sanctionable. This raises an important and unresolved question of First Amendment law: When can lawyers be stripped of their livelihoods based on public political speech that is unrelated to any pending judicial proceeding and that is fully protected when said by ordinary Americans?
That question is especially important because it can arise—and indeed is likely to arise—in many cases in the future. "Tit for tat" may well be part of the nature of humanity. See Robert Axelrod & William D. Hamilton, The Evolution of Cooperation, 211 Science 1390 (1981); Herbert Gintis, Samuel Bowles, Robert Boyd & Ernst Fehr, Explaining Altruistic Behavior in Humans, 24 Evol. & Hum. Beh. 153, 154 (2003). It certainly seems to be part of modern American politics.
The mode of analysis in this case thus seems likely to proliferate in decisions both by deep blue state bars and deep red state bars. It seems likely to arise as to people involved in contentious disputes about federal elections, state candidate elections, state ballot measures, and ideological debates more broadly. In all these contexts, allegations that one's opponents are lying are par for the course: Indeed, another facet of human nature is to assume the worst motivations of one's adversaries and the best motivations of one's allies.
In the past, state bars have sought to punish people they viewed as left-wing extremists who endangered the established constitutional order. See, e.g., James E. Moliterno, Politically Motivated Bar Discipline, 83 Wash. U. L.Q. 725 (2005). This case is a reminder that the same approach is being revived today as to lawyers whom some state bars view as right-wing dangers. And, if the decision endures, it will likely be followed by many other such decisions. It is important that this Court make clear what rules govern this area of the law, so that they can be applied as evenhandedly as possible throughout the country.
To be sure, this case also involves other allegations of impropriety, such as alleged false statements to courts, to Eastman's own client (President Trump) and his team, and to Vice President Pence and his team. This amicus brief does not opine on those matters. As many cases (see Part IV) have made clear, if a government sanction—whether a criminal sentence, civil liability, dismissal from government employment, or disbarment—rests even in part on constitutionally protected speech, it cannot stand unless the government can show that it would have reached the same result absent the protected speech.
For this reason, this Court should grant certiorari to consider when lawyers can be disbarred for their public political speech.
Argument
[I.] Eastman's public statements would have been protected by the First Amendment if said by an ordinary citizen
If John Eastman were not a lawyer, his public statements about the election would have been protected even if they were knowingly false. New York Times v. Sullivan expressly held that even deliberate lies about the government cannot be punished, especially on the theory that they damage people's confidence in the government or its processes (which would logically include elections): "For good reason, 'no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.'" 376 U.S. 254, 291 (1964) (quoting City of Chicago v. Tribune Co., 307 Ill. 595, 601 (1923)). Yet the bar court justified the sanction of disbarment in part precisely because of what it saw as damage to the reputation of the government: Eastman's "false narrative," the court stated, "resulted in the undermining of our country's electoral process, reduced faith in election professionals, and lessened respect for the courts of this land." Pet. 122a.
Likewise, in United States v. Alvarez, 567 U.S. 709 (2012), this Court held that a federal law that criminalized lying about military honors violated the First Amendment. And this was true for a sort of statement—claims that the speaker received a particular military medal—that was about as objectively verifiable and ideologically neutral as statements can be. There was little risk that the Stolen Valor Act would be interpreted by prosecutors, judges, and jurors differently for Democrats than for Republicans, or that it would unduly chill people's speech on important political questions. Governmental evaluation of statements such as Eastman's is far more fraught with peril than decision-making about statements such as Alvarez's.
Indeed, even the five Justices in Alvarez who did not sign on to the plurality opinion agreed that the government cannot be trusted with punishing supposedly false speech about broad "matters of public concern." Justice Alito's three-Justice dissent reasoned,
[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern would present such a threat. The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.
Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal. Today's accepted wisdom sometimes turns out to be mistaken. And in these contexts, "[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about 'the clearer perception and livelier impression of truth, produced by its collision with error.'"
Allowing the state to proscribe false statements in these areas also opens the door for the state to use its power for political ends. Statements about history illustrate this point. If some false statements about historical events may be banned, how certain must it be that a statement is false before the ban may be upheld? And who should make that calculation? … [T]he potential for abuse of power in these areas is simply too great.
567 U.S. at 751-52 (paragraph break added) (Alito, J., dissenting). Justice Breyer's two-Justice concurrence agreed with the dissent that "there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech" and that therefore "[l]aws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny." Id. at 731-32 (Breyer, J., concurring in the judgment). The plurality Justices had no occasion to reach this question, because they thought even much narrower and politically uncontroversial false statements, such as claims about military medals, were fully constitutionally protected. But it seems that the four Justices in the plurality would have agreed with the dissent and the concurrence on broader statements as well.
And this protection, the concurrence and dissent agreed, even applies to statements that a factfinder decides were deliberate lies. Yet the California State Bar Court concluded that Eastman's speech could be punished even if it were negligently false. See Pet. 94a (stating that "we examine Eastman's conduct pursuant to an objective standard, not a subjective one," and finding Eastman culpable because his statement about a county government's ballot counting process "was not objectively reasonable"); id. at 103a ("in balancing an attorney's First Amendment rights outside of the courtroom with the public protection components of the attorney disciplinary process, the attorney's conduct is assessed under an objective, reasonableness standard").
Likewise, the Court reasoned that Eastman's statements were based on "little intellectual rigor" and did not sufficiently rely on "true experts." Id. at 119a. Yet the logic of the decisions above shows that government officials cannot punish criticisms of government processes on the grounds that the critics' analyses were not adequately intellectually rigorous, or that the analyses did not rely on those people that the government officials view as true experts. None of this diminishes the genuine importance of rigor or expertise, but it highlights Justice Alito's observation that "it is perilous to permit the state to be the arbiter of truth" in such matters.
In highly charged contexts, like politics, people tend to view facts through a partisan lens; government regulators, including bar officials, are no exception. Indeed, they may be more likely to have a biased view—whether because of self-interest or unconscious bias—because of their own connection to politics or membership in a particular stratum of the legal profession. Regulators with certain political views may thus be quick to designate the statements of their opponents as false and pursue the speakers. Bruce A. Green & Rebecca Roiphe, Lawyers and the Lies They Tell, 69 Wash. U. J.L. & Pol'y 37, 119 (2022). As Justice Alito noted, "[T]he potential for abuse of power in these areas is simply too great."
And even if most observers agreed that Eastman lied—something that Eastman of course continues to dispute—giving this power to state bar regulators would open the door to other efforts to suppress unpopular speech. And no doubt at some point the targeted speech will be useful, productive opposition. "Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal. Today's accepted wisdom sometimes turns out to be mistaken." 567 U.S. at 752 (Alito, J., dissenting). Without First Amendment protection, the public would be powerless in the face of such an effort to control public discourse.
Indeed, this case helps illustrate Justice Holmes and Brandeis's conclusions that "the best test of truth is the power of the thought to get itself accepted in the competition of the market" and that "the fitting remedy for evil counsels is good ones." Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting); Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). People made claims about fraud in the 2020 election. These claims were debated, and were generally rejected through both the legal system and public discussion. To be sure, not everyone was persuaded that the claims were false—but counterspeech and free public debate is not a perfect remedy or test of truth, just the best test, and the one most fitting to a democracy.
In particular, free speech and counterspeech about such matters is better for a democracy than "silence coerced by law—the argument of force in its worst form." Whitney, 274 U.S. at 375-76 (Brandeis, J., concurring). Free discussion tends to produce, however imperfectly, more trust in the outcome of the discussion. Coercive suppression of one side tends to produce more suspicion.
"[F]ear breeds repression," "repression breeds hate," "hate menaces stable government," and "the path of safety lies"—not perfectly, but more successfully than the alternatives—"in the opportunity to discuss freely supposed grievances and proposed remedies." Id. at 375. However much we may regret the degree to which our country is riven by partisan strife, that strife would be even greater if one side believed that a supposed consensus had been achieved through coercion rather than persuasion.
[II.] Lawyers' public speech remains fully protected, unless it risks "materially prejudicing an adjudicative proceeding" in which the lawyer is involved as a lawyer
Eastman's speech as a citizen is thus fully protected, and it remained so against bar discipline as well as against fines or civil liability. The California bar court's decision argued, though, that a lawyer could be disbarred for such speech, precisely because he is a lawyer. See Pet. 100a (holding that "The First Amendment rights of attorneys" "must be calibrated to align with the unique role attorneys play in the administration of justice").
Yet as Chiles, NIFLA, and Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), make clear, professionals retain broad First Amendment rights even when they are speaking to clients. A fortiori, they even more clearly retain such rights when speaking to the public.
"As Holder indicates, … the First Amendment's protections extend to licensed professionals much as they do to everyone else. It's a point we have since discussed at length in NIFLA." Chiles, 607 U.S. at 642-43. And this is especially important as to lawyers' speech on the great political and legal debates facing the nation, because the perspective of lawyers—based on their experience with and study of the legal system—is often so essential to such debates.
To be sure, this Court has "acknowledged two kinds of content-based restrictions that can apply to professional speech without triggering strict scrutiny." Id. at 643:
First, courts generally deploy less searching review when faced with laws that require speakers to disclose only factual, noncontroversial information in commercial speech. Second, laws regulating conduct in ways that incidentally sweep in speech may also generally avoid strict scrutiny. But, we stressed, neither [category] turns on the fact that a licensed professional happens to be speaking.
Id. (cleaned up). Eastman's public statements do not fall into either of these two categories; instead, they constitute core political speech.
This Court has also held that "the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than" strict scrutiny, and, in particular, that it can be restricted to prevent speech that poses a "substantial likelihood of material prejudice" to the proceeding. Gentile v. State Bar of Nev., 501 U.S. 1030, 1074, 1075 (1991). But unlike in Gentile, Eastman's words ran no risk of interfering with an ongoing proceeding, because there was no "pending case[]."
Rather, Eastman's speech was classic political commentary critical of some government actors (though in defense of another government actor). Such speech by lawyers must remain constitutionally protected against government sanctions that destroy the speaker's livelihood, just as ordinary citizens' speech is protected against civil fines and damages liability. Green & Roiphe, supra, at 42-66 (arguing that there is no reason to treat lawyers differently from others when the administration of justice is not at issue).
[III.] Eastman's speech did not lose its protection on the theory that it sought to undermine democratic processes
Nor could Eastman's speech be sanctioned on the theory that it sought "to actively undermine the results of an election to the most powerful office in the United States with the goal of delaying or invalidating the lawful installation of his client's electoral opponent and thereby keep his client in office," Pet. 3a. The whole question in the dispute was what the true results of the election were. Eastman had a right to make the argument that certain government processes failed to properly determine those results.
More broadly, lawyers do not have a general obligation to advance democracy; instead, they protect our democratic system by engaging in adversarial debate, representing clients diligently within the bounds of the law. Indeed, because regulators and critics have their own definitions of democracy that are inevitably shaped by political bias, relying on such definitions can lead to unconstitutional sanctions of lawyers for legitimate advocacy or political speech. Whatever one thinks of these lawyers or their clients, many of these sanctions threaten to chill political speech; deter lawyers from representing controversial clients; and invite regulators to act when there is a very real danger that their own political bias will dictate the result. This potential downside is, as a structural matter, a greater threat to democracy than the lawyers' conduct and speech itself. See generally Roiphe, supra, at 1819-22.
Indeed, during the McCarthy era, state bar associations followed the lead of federal authorities and targeted lawyers who represented communist or socialist clients for what was, in essence, their failure to uphold "constitutional governance." See, e.g., Schware v. Bd. of Bar Examiners, 353 U.S. 232 (1957). The National Lawyers Guild, an organization of leftist lawyers, was nearly destroyed on such grounds. Jerold Auerbach, Unequal Justice: Lawyers and Social Change in Modern America 231-62 (1976); James E. Moliterno, Politically Motivated Bar Discipline, 83 Wash. U. L.Q. 725 (2005) (cataloging the politically motivated disciplinary proceedings in American history). While some of these lawyers may have posed a threat to democracy, most did not. Civil rights lawyers, anti-poverty lawyers, and lawyers who protected detainees in the war against terror faced similar threats. Moliterno, supra, at 741-44. The ideological position of the bar regarding unpopular defendants may have shifted, but the underlying danger has not.
Funneling challenges to accepted understandings of the Constitution and democracy into peaceful debate—in courtrooms, in legislatures, and before the public—is the safest way to ensure the longevity of American institutions. And giving lawyers leeway to challenge the status quo is the only way to accomplish that. This means that we must tolerate and give wide latitude to lawyers in politically charged contexts, even when the positions the lawyers take on behalf of clients appear to us to be socially dangerous and destructive. It is far more dangerous to stifle dissent than to let it make its way through the justice system and the political system.
[IV.] A sanction that rests even in part on protected speech is constitutionally impermissible
As the Introduction noted, the amici focus only on Eastman's speech to the public and take no position as to his speech to the Pence or Trump camps, or his statements in legal proceedings. But if this Court grants certiorari and concludes that Eastman's speech to the public was constitutionally protected, that is a sufficient reason to vacate the judgment below.
As this Court noted in Street v. New York, even if a conviction "could have been based upon both [defendant's constitutionally protected] words and his [potentially unprotected] act," the conviction must be reversed. 394 U.S. 576, 587 (1969). When the sentence is "a single penalty," "unless the record negates the possibility that the conviction was based on both alleged violations," "[t]he judgment … must be affirmed as to both or as to neither." Id. at 588.
[W]hen a single-count indictment or information charges the commission of a crime by virtue of the defendant's having done both a constitutionally protected act and one which may be unprotected, and a guilty verdict ensues without elucidation, there is an unacceptable danger that the trier of fact will have regarded the two acts as "intertwined" and have rested the conviction on both together.
Id. This reasoning is directly applicable to this case, because the sanction of disbarment was indeed based on Eastman's "intertwined" actions—the public speech as well as the private speech and the courtroom filings. Pet. 111-12a. See also Eaton v. City of Tulsa, 415 U.S. 697, 707 (1974) (reversing a contempt conviction because the Court had "no basis to conclude with any degree of certainty" that the conviction "rests solely on" unprotected speech); Bachellar v. Maryland, 397 U.S. 564, 571 (1970) ("since petitioners' convictions may have rested on an unconstitutional ground, they must be set aside").
To be sure, unlike in Street, the decision below considered a multiple-count accusatory instrument. But the ultimate decision, a disbarment, rested on the aggregate of all of Eastman's conduct, with no separate sanction indicated for each count. The bar court stressed that it "[did] not compartmentalize Eastman's conduct into isolated events when examining the record for evidence of his knowledge and intent." Pet. 19a. And its discussion of the sanction expressly referred to Eastman's public speech as well as his advice to his client, his negotiation with Pence, and his statements in court. Pet. 120a.
The reasoning of Street applies to civil cases as well. Thus, in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), the NAACP and others organized a boycott of white-owned businesses in Claiborne County, demanding various concessions. The businesses sued on a tort theory of intentional interference with prospective business advantage, pointing to various behaviors that interfered with their business—political statements exhorting solidarity, threats of social ostracism of boycott violators, threats of violence, and even actual violence. The state courts held for the businesses, concluding that, put together, the behavior was indeed tortious.
The Court reversed. Violence, the Court held, was indeed constitutionally unprotected, but much of the other behavior—including threats of social ostracism—was constitutionally protected speech. And because "the nonviolent elements … are entitled to the protection of the First Amendment," they did not lose this protection just because of the presence of unprotected behavior. Id. at 915. While the violent actors might have been subjected to liability based only on the unprotected behavior, liability could not constitutionally be imposed based on a combination of the unprotected behavior and the protected speech.
Likewise, in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), the Court made clear that the First Amendment is violated whenever protected speech makes a difference in deciding a speaker's fate. If protected speech is a "motivating factor" in a government decision—even when other factors are also present—the decision is unconstitutional unless the government shows that it would have reached the same decision without considering the speech. Id. at 287. That is true for the decision to fire someone from a particular job; it must be equally true for the decision to completely eject the person from an entire profession.
Conclusion
Decisions to disbar lawyers based on their political advocacy are likely to arise again, both from the left and from the right. American democracy needs a clear rule for when, if ever, such decisions are permissible. This Court should grant certiorari in this case to help set forth such a rule.
{Interest of the Amici Curiae
Rebecca Roiphe is the Joseph Solomon Distinguished Professor of Law at New York Law School. She has written extensively about the history of the profession and legal ethics, as well as on professional speech and lawyers' First Amendment rights. She was retained as an expert witness by John Eastman in the California bar proceedings; she was not hired to represent Eastman, but rather to provide an impartial expert opinion. The court did not consider her testimony because it concluded that her expertise was on a question of law, which was within the State Bar Court's purview. In the Matter of John Charles Eastman, Case No. SBC-23-O-30029-YDR, Order Granting Motion in Limine (Cal. State Bar Ct., Hearing Dep't, May 23, 2023). Portions of this brief are adapted from her article, Why Courts Should Not Discipline Trump's Lawyers, 46 Cardozo L. Rev. 1817 (2025).
Nadine Strossen is the John Marshall Harlan II Professor of Law Emerita at New York Law School, a past national President of the ACLU (1991-2008), and a Senior Fellow with FIRE (the Foundation for Individual Rights and Expression). She has written extensively about the freedom of speech, including in the 2018 book HATE: Why We Should Resist It with Free Speech, Not Censorship (Oxford University Press).
Eugene Volokh is the Thomas M. Siebel Senior Fellow at the Hoover Institution at Stanford University, and the Gary T. Schwartz Distinguished Professor of Law Emeritus at UCLA School of Law. He has written extensively about the freedom of speech.}
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The New Dark Ages: The Death of Reading and the Dawn of the Post-Literate Society, by James Marriott, Doubleday, 208 pages, $26
The last few years have seen a glut of sky-is-falling books about kids. Jonathan Haidt's The Anxious Generation has made a generation of parents anxious. Jared Horvath's The Digital Delusion has fueled a backlash against technology in schools. The latest, James Marriott's The New Dark Ages, is the inevitable end point of the genre: heavy on lofty moral lectures but stripped almost entirely of scientific literacy or curiosity.
The book's premise is straightforward: Reading and literacy have declined among younger generations, and this is leading not just to dumb, lazy kids, but to the end of democracy itself. The culprit: the smartphone.
On the positive side, The New Dark Ages has probably the best prose of its genre. The writing is earnest and engaging, with none of the clunkiness of the other books. Marriott's love for reading is infectious, and his concerns will be catnip for the audience of adults eager to hear, yet again, that kids today are dumber, sadder, and less prepared for democratic life than prior generations.
But its scientific literacy is even worse than the other books'. Haidt has been rightly criticized many times for cherry-picking evidence, overstating research conclusions, and producing simple graphs of the sort we warn students not to make causal inferences from in Psychology 101. Those graphs are now obsolete as well: The Centers for Disease Control and Prevention have documented that youth suicide, self-reported mental health problems, and self-injuries have all declined even as screen use remains at all-time highs. (That's one danger of using time-trend graphs to make causal assertions. Often the trends inconveniently reverse.) But The New Dark Ages mostly ignores scientific data altogether.
The book's references mention very few peer-reviewed studies, and the ones it does cite say little about the thesis that screens caused such changes. Instead, Marriott relies heavily on news reports, popular books, and similar secondary sources. This is unfortunate, as the data are clear that news media tend to sensationalize weak studies that suggest social media harms, while ignoring studies that suggest social media have basically no influence on youth mental health. He depends, for instance, on the Financial Times (he thanks one of its reporters for "talk[ing] me through the data") to suggest some trends, even though that outlet has been rightly criticized for using dodgy data in misleading and alarmist ways.
Like many alarmists, Marriott often presents data in ways that ignore a larger context. For instance, Marriott notes that America's standardized reading scores on the National Assessment of Educational Progress (NAEP) reached their lowest point in 20 years in 2024, with the implication that this is due to modern screens. He does not mention that NAEP scores actually peaked in the high-screen 2010s, declined after COVID, and now are back to levels seen in the early 1990s. Further, those post-COVID declines continued even after schools enforced more restrictive bans on cellphones and other technologies.
Further, the use of educational screens in schools is associated with slight improvements in reading and literacy, not declines (though those improvements are probably too small to be considered useful). There's a nuanced conversation to be had about screens and reading—much of which now happens on screens—but for a book that laments the loss of deep reading, Marriott doesn't seem to have bothered to do any deep reading in this area himself.
What's more, as researcher Mike Males recently pointed out, trend analysis suggests that the more kids use social media, the more they read books. I doubt very much that that's causal—but it's certainly a problem for the "screens are killing reading" hypothesis.
Another problem: Higher screen use is common for families that have a host of other troubles. Controlling for those other factors often makes the predictive value of screen time alone vanish.
Marriott presents various frightening-sounding anecdata about the decline in reading. Some of this is compelling—such as the overall decline in reading for pleasure, which began during the 1950s—and I don't want to discount every negative possibility here. But he presents all this as a catastrophic decline rather than a qualified change in society.
And I wish he were more skeptical about the common refrain that college students today can't read the books their professors assign. An entire cottage industry of such essays has sprung up, where professors ritualistically rend their clothes and gnash their teeth. But there are several potential problems with these analyses. For one thing, this concern isn't new. I've been teaching college for almost 30 years, and not once during that time have college professors thought their students were good readers. Also, some of the books assigned by professors may in fact be genuinely boring. Not everything on a course syllabus is a worthy classic.
Most important: If the average college student today is a poorer reader than 30 or 50 years ago, the reason may be more prosaic than anything related to television or smartphones. Universities are facing a demographic cliff, and many of them are being forced to recruit less-qualified students. The average IQ of college students is getting lower, not because young adults are stupider than in the past, but simply as a consequence of basic economics: Schools need warm bodies to keep the lights on.
If we're looking for patterns in time trends, we can't ignore the fact that young people today, on most outcomes, are far better than in earlier eras. Both youth violence and teen pregnancy are at record lows, more kids graduate high school than ever, and community volunteering is higher than in the 1970s and '80s. Smoking, drinking, and illegal drug use are all down, and even mental health is now improving. If we're going to use time trends, Marriott (and Haidt and Horvath and others) can't have it both ways, assigning causality only to bad outcomes and ignoring the good. If TikTok reduced reading, it also apparently reduced violent crime and teen pregnancy and got more kids to graduate high school. If we must be dumb about correlation and causation, we can't just pick the outcomes that flatter our moral sensibilities and conveniently ignore the rest.
Marriott laments the rise in authoritarianism, proclaiming a collapse of democracy and blaming it on the decline in reading. Yet 20th century Germany and Japan were at the height of literacy, and Italy not far behind, when they fell into violent, racist authoritarianism. Foolishness can certainly lead to authoritarianism, but literacy does not confer an immunity to foolishness. And while it is absolutely true, as Marriott argues, that authoritarians deprive people of reading and writing, he should consider how harangues about the dangers of screens can contribute to authoritarian controls on online speech.
Worse still, the precedents set for screens could easily be applied to books themselves. People may say they want kids to read more books, but when kids actually try to read the books they like, many adults then try to remove them too. Indeed, the U.S. has been seeing a spike in challenges to books in classrooms and libraries. Surprisingly, The New Dark Ages gives that trend little attention.
Marriott complains that music, television, and cinema have been dumbed down, with multitudes of inane sequels and remakes. Yet The New Dark Ages is itself a banal remake of complaints old people have been making for 2,500 years. Like many genre pieces, it keeps hitting formulaic plot points: that we have lost some utopian past, that there's a monocausal explanation for this loss, that some new technology or medium the kids like is to blame, and that we just need to get back to the 1980s or 1950s or 1930s or 1880s or 430s BCE. At times, Marriott seems to be at least somewhat self-aware about this, almost apologizing for being the proverbial old man waving his cane at the sky. (Technically, Marriott is in his 30s.) Yet he can't resist returning to clichéd form.
Like others in its genre, The New Dark Ages provides a trite but emotionally appealing narrative that flattens a complicated set of data into a sweeping moral story. And like others in its genre, it contributes to the erosion of our rights—including the right to read books.
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A man in Evanston, Illinois, was injured after Immigration and Customs Enforcement (ICE) agents mistakenly detained him because he resembled a man they were looking for. Both Evanston police and federal officials said the man was not their target and that agents later learned he is a U.S. citizen. Video taken at the scene shows ICE agents pinning him to the ground before releasing him and driving away, leaving him lying injured in the street. Bystanders tried to help, and police called an ambulance after the man reported injuries to his head, neck, and teeth. Police documented his injuries at the hospital and are investigating the incident.
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]]>The post How Should A.I. Change Legal Scholarship—and the Job of Being a Law Professor? appeared first on Reason Magazine.
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In a recent Wall Street Journal article, based on his forthcoming book on the same subject, Supreme Court Justice Samuel Alito offers his take on constitutional originalism. But in so doing, he raises more questions than compelling answers. Nonetheless, he makes a number of interesting points, about how to do originalism generally, and about specific constitutional issues. Here, I note a few of particular interest.
There is a longstanding debate among originalists as to whether the proper original meaning courts should apply is that understood by ordinary people at the time of ratification, that understood by lawyers and other well-informed experts, or that understood by hypothetical "reasonable" readers (many advocates of the latter approach assume the "reasonable" reader is highly knowledgeable about legal doctrine and methodology). I call this the divide between "elitist" and "populist" versions of originalism. Alito clearly comes down on the populist side:
When I think about the original public meaning of constitutional provisions, I sometimes envision a scene at a colonial-era tavern. After dinner, travelers and area residents gather around the fireplace and read newspapers that discuss the Bill of Rights. They read the text of the First Amendment and see that it prohibits Congress from making any law that impairs the free exercise of religion. What would they make of that language?
How likely is it that these men had read John Locke's writing on church-state issues? Even if they had some rough awareness of his ideas, how likely is it that they would assume that Congress had incorporated those ideas in the First Amendment? Originalism looks for the original public meaning, not the meaning that the most well-read and philosophically minded men of the day might have adduced.
In taking this position Alito seems to ignore the potential downsides of the populist approach. Among other things, ordinary people may be ignorant about a variety of constitutional issues, and may have particular difficulty interpreting technical legal terms embedded in the Constitution, such as "writ of habeas corpus" or "bill of attainder." Populist approaches to original meaning are also less likely than elitist ones to offer insight on how to deal with issues unanticipated at the time of enactment, such as new technologies, and new information.
Elitist approaches have their own downsides, of course. But those who advocate one or the other should grapple with these issues. I go into the relevant tradeoffs in more detail in my 2012 law review article "Originalism and Political Ignorance" and also in my earlier blog post on this topic. My own view is that it may be best to adopt a hybrid approach, balancing elite and popular understandings. Elite understandings are preferable when it comes to terms that ordinary people are likely to recognize as technical legal phrases that require a lawyer or other expert to understand. But the issue is a difficult one, and originalists need to consider it more. Maybe Alito's book will stimulate new analysis of this crucial issue.
Alito's analysis also elides the distinction, emphasized by many originalists, between original public and original "expected applications." The former is the linguistic meaning of the words, and the latter how they are expected to apply to particular issues. Expected applications depend in part on factual understandings, distinct from the meaning of the words. As facts or our understanding of them change, the same words may have different implications for particular cases, including some that were not and could not be expected at the time of drafting and ratification.
For example, Alito assumes it is obvious that originalism rejects a constitutional right to same-sex marriage, because almost no one expected such a thing back when the Fourteenth Amendment was ratified in 1868. Thus, he doubles down on his view that Obergfell v. Hodges, the 2015 ruling striking down laws banning same-sex marriage, is wrong. But, as discussed in the amicus brief I filed in that case (together with Andrew Koppelman), there is a strong originalist case for Obergefell once you combine the original linguistic understanding of the words with new knowledge about the nature of same-sex relationships. This is particularly true if you accept (as many originalists now do) that the the Fourteenth Amendment bans most, if not all, forms of sex discrimination.
On another Fourteenth Amendment issue, Alito also reiterates his longstanding view that the Due Process Clause, not the Privileges or Immunities Clause, is the proper source of various "unenumerated" rights, including "incorporation" of the Bill of Rights against state governments:
If we simply read the text of the 14th Amendment, the Due Process Clause seems an unlikely home for substantive rights. Another provision, the Privileges or Immunities Clause, declares that no state "shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." But in the Slaughter- House Cases (1873), the Supreme Court reduced that clause to minor importance.
In McDonald [v. City of Chicago], prominent scholars filed a brief urging the court to jettison Due Process incorporation and revive Privileges or Immunities. During oral arguments, the attorney representing Otis McDonald latched onto this argument. He didn't get far. Justice Scalia interrupted him and said that while the Privileges or Immunities argument was "the darling of the professoriate," it was contrary to a century of case law. Scalia recommended that the attorney stick to those precedents.
Why did Scalia, a former law professor, say that? Because accepting the Privileges or Immunities argument would have opened a can of worms. Libertarians, social conservatives, progressives, socialists and others could all make a pitch for whatever rights they favored.
On this issue, Alito differs with fellow conservative originalists Clarence Thomas and Neil Gorsuch, both of whom advocate reviving Privileges or Immunities. It is also ironic that Alito rejects Privileges or Immunities revival for fear of opening up a "can of worms" that enables judges with different ideologies to "make a pitch for whatever rights they favored." After all, this is exactly the same argument Alito and other conservatives have long deployed against "substantive" due process. It's not clear why Privileges or Immunities Clause would be any worse. If anything, the fact that there's lots of original meaning evidence about what rights qualify as "privileges or immunities" might make it less subject to judicial manipulation than substantive due process is. While Alito is wary of what he calls "academic originalism," the extensive academic work on the meaning of Privileges or Immunities could help guide judicial discretion here. And, again, at the very least, it might be less subjective than the Due Process Clause approach.
Alito also emphasizes "the necessity, except in unusual circumstances, to heed precedent, since overturning it can have unsettling consequences." Despite his distaste for Obergefell, in a recent CBS interview he indicates that it likely should not be overturned because "a great deal had changed in the country as a result of Obergefell [and] [t]here was a lot of reliance in various ways on the decision in Obergefell." Alito is referring here to the hundreds of thousands of same-sex couples who have gotten married and started families in reliance on the Supreme Court's ruling.
Skeptics will note that Alito has in fact voted to overturn a number of longstanding precedents, most notably in the Dobbs case, overturning Roe v. Wade (1973), which had established a constitutional right to abortion. Alito's argument that Roe did not engender significant reliance interests strikes me as unpersuasive. Many women likely did rely on the availability of abortion as way to escape an unwanted or medically dangerous pregnancy. That doesn't necessarily prove Dobbs is wrong. But it does mean that defenders of that decision and other reversals of longstanding precedent need a better theory of how to weigh reliance interests against other considerations.
In fairness, Alito is far from alone among Supreme Court justices in failing to develop a compelling and coherent answer to this question. Other justices - both liberal and cosnervatives - have had trouble with this, as well. I have previously argued that "Stare decisis will not stop the justices from overturning a precedent they think is badly wrong and causes significant harm" - a point I believe applies to jurists across the political spectrum. Even significant reliance interests might be overcome in a situation where the maintenance of a wrong precedent itself causes grave harm. Jurists of different stripes are willing to reverse precedents that are "egregiously wrong and deeply damaging," as Alito put it in Dobbs. The big disagreement is over which cases fall into that category.
That is one reason why Brown v. Board of Education and later decisions striking down segregation laws were justified, despite the fact that they narrowed or overturned longstanding precedents that many state and local governments had relied on heavily. Segregation laws caused such great harm, that even substantial reliance interests had to be subordinated to the need to end it. Similarly, if you believe - as many pro-lifers do - that abortion is the moral equivalent of murder, Dobbs might be justifiable even if Roe did create substantial reliance interests. But notice that this approach to reliance interests requires courts to engage in a balancing of interests that many might argue is not within judicial competence.
There is more to be said about Alito's Wall Street Journal article, and CBS interview. And, I expect, many of these issues are covered in greater detail in his book. But, for now, I will stop here. I may have more to say after I have had a chance to read the book.
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]]>Next, the panel discusses Tennessee's botched execution of Christa Pike and what it reveals about the practical and moral problems with the death penalty. Finally, they consider OpenAI CEO Sam Altman's argument that society should accept some negative consequences from artificial intelligence in exchange for its benefits.
0:00—The "Cornell Seven" investigation
29:21—Pike's botched execution
36:53—Altman's AI comments
53:29—Weekly cultural recommendations
The Reason Roundtable's 10th Anniversary—Live in NYC! October 7
The World Premiere of Escaping Venezuela, October 13
"The Cornell Rape Lawsuit Is Fueling a Deranged Social Media Mob," by Robby Soave
"Letitia James Has Already Suggested the Cornell 7 Are Guilty," by Robby Soave
"Would a Firing Squad Have Been More 'Humane' for Christa Pike?" by Billy Binion
"Trump Wants AI Companies To Police Themselves. His FTC Isn't Waiting," by Tosin Akintola
Cato Innovation Project: Design your own full-time, paid role at Cato. If we fund your idea, you spend two years executing it. Apply here: cato.org/reason
The post Are the Cornell 7 Being Tried on Social Media? appeared first on Reason Magazine.
]]>I write separately to address Plaintiff's understandable objections to the magistrate judge's ex parte meeting with Defendant. After all, ex parte meetings are "strongly disfavored" and "often reversible error," as our court rightly observes today.
I get why the magistrate judge felt compelled to engage in an ex parte dialogue, after he received a series of unusual emails from Defendant's corporate representative. It's no fun being criticized for one's life's work.
But "[h]olding office in America is not for the faint of heart." "With leadership comes criticism—whether from citizens of public spirit or personal malice."
[I.] Defendant's corporate representative sent a series of ex parte emails to the magistrate judge. The emails expressed frustration with perceived excessive and unnecessary delays in the judge's resolution of the case.
One of those emails referenced the fact that "I have many friends who are … Texas congressmen, US representatives, and one close U.S. Senator," and that the corporate representative was "consider[ing] asking my Texas friends to write to you and ask why I have to continue waiting."
The email was sent at a time when it was publicly known and reported by the media that the judge was actively being considered and promoted in certain circles for appointment to the district court.
So the message—intended or not—was an indictment on the judge's honor. It was effectively an accusation—fair or unfair—that the judge might be willing to use his rulings to further his own personal career ambitions.
In response, the magistrate judge held an ex parte meeting with Defendant's corporate representative.
[II.] Any judge who abuses his office to promote his own interests—including the desire for future appointment—has violated the judicial oath and doesn't belong in his current post, let alone whatever new post he seeks.
There are, to be sure, both honorable and dishonorable people on the bench—just as there are in every other segment of life. Just as there are no doubt those on the bench who have strong ambitions for future office, there are others who are happy to be public servants, but who would be just as happy earning their living by some other means.
For the outside observer, however, it can be difficult to discern which is which.
And therein lies the quandary for the dutiful judge. How should a good judge respond when it's suggested that his exercise of judicial authority might be tainted by his private, personal desire for elevation to another post?
One noted scholar has described this dilemma as "the audition trap." Josh Blackman, The Audition Trap, Reason.com, Mar. 7, 2025. As Professor Blackman explains, "[a]t bottom, this is a charge of bad faith: that we write what we write not because we think it is the right legal outcome, but that we are using our platforms to seek some higher office."
He calls it a "trap" because it's a claim that "cannot be refuted." "Once a person is labeled as an auditioner, everything they do will be seen as an attempt to audition. If they act in a moderate fashion, they are doing so to avoid drawing attention, and helping their candidacy. If they act in a radical fashion, they are doing so to draw attention, and help their candidacy. Auditioners are trapped in a vicious cycle."
[III.] Professor Blackman's point is simple, but important. No one has the power to look into another man's heart and ascertain his actual motivations or ambitions. So the accusation of auditioning is indeed irrefutable. Certain actions may seem like auditioning to some, but to others, it's simply doing the job as the judge best sees fit.
There's no solution. So the good judge simply accepts that criticism is a fact of life—and that unrebuttable charges come with the job. The First Amendment guarantees the right of every citizen to criticize public officials—whether the criticism is fair or unfair.
That doesn't make unjust assaults on one's honor any easier to accept, of course. No one likes to be booed. It's not unreasonable that a good judge might care about his reputation for fairness, neutrality, and integrity. But caring deeply is the cost of admission to a meaningful and textured life.
Public criticism is not for everyone. But if it's too much to take, you can always resign. Federal judges receive life tenure—not a life sentence.
[IV.] I have no reason to doubt the sincerity of Defendant's corporate representative. Delays in the justice system are real, commonplace, and frustrating.
Nor do I have reason to doubt the sincerity of the magistrate judge. Frustrating too is the irrefutable accusation that one's rulings are hopelessly tainted by personal ambition.
But here, the magistrate judge chose to vent that frustration at an ex parte meeting with Defendant. On a human level, I can sympathize. But I wouldn't have counseled such a response.
At the end of the day, the only thing a good judge can do is articulate the governing principles that decide the case, and endeavor to apply those principles consistently in all such cases, without fear or favor or regard to personal consequences. And then just let his record over time speak for itself.
* * *
"Those who seek office should not just expect criticism, but embrace it. Tough scrutiny is not a bug, but a defining feature of our constitutional structure. In America, we trust our citizens to determine for themselves what is right—and to count on vigorous, unrelenting debate to guide them."
The post "Federal Judges Receive Life Tenure—Not a Life Sentence" appeared first on Reason Magazine.
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In the Realm of the Last Man: A Memoir, by Francis Fukuyama, Farrar, Straus and Giroux, 304 pages, $29
In his thirties, Francis Fukuyama was pursuing a respectable but low-key career as a RAND Corporation analyst and State Department bureaucrat focused on the Soviet Union. His breakthrough into the public sphere came in the summer of 1989, when his essay "The End of History?" appeared in The National Interest.
At the time, I was a producer at the PBS foreign affairs show American Interests. As a child of the Cold War, I was thrilled by his claim that we may be witnessing "the end point of mankind's ideological evolution and the universalization of Western liberal democracy as the final form of human government." This bold statement seemed confirmed by the fall of the Berlin Wall later that year and the collapse of the Soviet Union two years later.
Since then, Fukuyama has been one of America's leading public intellectuals. Now he has written a charming and stimulating memoir, In the Realm of the Last Man. The book covers everything from his grandparents' time in a World War II internment camp to his break with prominent neoconservatives over the misbegotten invasion of Iraq; the career it reveals is an inspiring example of how a rigorous liberal education sharpens a relentlessly questing mind. He credits his encounter with classicist Allan Bloom for instilling in him the passion to pursue the big questions: "What is the best way to live, what makes for the highest form of human happiness, what is the nature of justice, what is natural and what is conventional in human affairs." Fukuyama is entirely correct when he observes, "An appreciation for truly philosophical thought is a gift of inestimable value that remains with you for a lifetime."
But even as the book covers all these topics, it keeps coming back to ideas that Fukuyama started sketching in that 1989 essay and has expanded upon in countless works since then.
Fukuyama's argument that humanity had reached the end of history rested on his reading of the French philosopher Alexandre Kojève, who argued that the mainspring of history is humanity's drive for recognition, dignity, and respect. In his interpretation of Kojève, Fukuyama adapted Plato's tripartite division of the human soul into logos (reason), eros (desire) and thymos (spiritedness). Fukuyama contends that thymos is the true psychological driver of history, distinct from basic physical survival or economic calculation. Human beings, he noted, are the only creatures that willingly risk death in the service of abstract ideals.
The "end of history," for Fukuyama, is achieved with the universal recognition of the equal dignity of all human beings as the foundational ideal of liberal democracies. Liberal societies, he explains in Realm, provide "universal recognition by granting citizens equal rights; the rights to speak, to associate, to believe, and to have a share of political power through the vote."
Not ready to buy into dialectical metaphysics? In their brilliant 2009 book Violence and Social Orders, the Nobel-winning economist Douglass North and two colleagues approached humanity's political evolution from a less abstract but parallel track. The main problem that confronts societies encompassing more than a few hundred people, they argued, is how to control male violence. Humanity's first solution to this problem was a "natural state" built around elite patron-client networks. Think of chiefs, kings, and oligarchs as gang leaders who maintain relative social peace by running protection rackets: In exchange for a portion of your earnings, the strongman and his minions will try to make sure that other guys don't kill you or steal your stuff.
The dawn of the 19th century, North noted, saw the development of "open access orders" where the rule of law supplanted elite hierarchical rule. Subjects once under the authority of aristocrats become citizens bearing equal rights. These precursors to today's liberal democracies were better at controlling social violence while simultaneously allowing more human flourishing through market-based economic growth. By the end of the 20th century, the number of people living in such societies had expanded greatly.
Back in 1989, Fukuyama observed that some societies remain mired in history. In other words, some people are still stuck in backward natural-state tyrannies. (Russia is a contemporary example.) But he predicted such societies would eventually join the post-historical world through the "unabashed victory of economic and political liberalism."
North and his colleagues do not seem to have considered the prospect that bored citizens would rebel against open access orders and revert to autocratic natural states. But Fukuyama did.
In the concluding paragraph of his 1989 essay, Fukuyama declared: "The end of history will be a very sad time." Sad? Because "daring, courage, imagination, and idealism will be replaced by economic calculation, the endless solving of technical problems, environmental concerns, and the satisfaction of sophisticated consumer demands." The peace and prosperity that liberal societies make possible is not enough to satisfy some people's thymotic impulses. "Perhaps this very prospect of centuries of boredom at the end of history will serve to get history started again," he concluded.
Fukuyama expanded on that idea in his 1992 book, The End of History and the Last Man. Fukuyama took the term "the Last Man" from Friedrich Nietzsche's epithet for the contented beneficiaries of bourgeois peace and prosperity. "We have been living in the realm of the Last Man for some time now," Fukuyama writes in his memoir. "The problem, though, is that the peace and prosperity brought about by the liberal order based on equal recognition is not enough for many people."
In Realm, Fukuyama reminds readers that the last chapters of The End of History and the Last Man "contain a clear premonition of the rise of the kind of demagogic populism that we have experienced from the mid-2010s to the present." To quote the older book directly: "if men cannot struggle on behalf of a just cause because that just cause was victorious in an earlier generation, then they will struggle against the just cause. They will struggle for the sake of struggle. They will struggle, in other words, out of a certain boredom: for they cannot imagine living in a world without struggle. And if the greater part of the world in which they live is characterized by peaceful and prosperous liberal democracy, then they will struggle against that peace and prosperity, and against democracy."
Thirty-four years later, Fukuyama writes, "We see this today on both the extreme right and left." Furthermore, would-be strongmen have been rising to power by harnessing populist resentment, creating "a constant pressure" to revert to "clientelism and patronage, often revolving around friends and family of the ruler."
Indeed, the V-Dem Institute's latest annual assessment reports that more and more countries are succumbing to that pressure, with the result that autocracy is expanding around the globe. Worrisomely, the study also states that "the United States has lost its long-standing status as a liberal democracy for the first time in more than 50 years, falling into the lower category of electoral democracy."
Fukuyama concludes Realm by considering three challenges he sees confronting liberal democracy today.
The first is a "fetishism of proceduralism." When regulations proliferate, social trust erodes, until society becomes a "vetocracy" that stymies new infrastructure, blocks attempts to address new social needs, and drowns wealth-creating entrepreneurs in paperwork. He correctly warns that such minutely detailed rules leave some beleaguered citizens tempted to follow authoritarian figures promising to hack through the strangling red tape.
His second challenge is transhumanism, which he once called "the world's most dangerous idea." This is a longstanding concern of his. In Realm, Fukuyama mentions a debate he had on the subject back in 2003—one that pit him against "the science editor of a libertarian magazine," who "gushed about the possibilities for life extension."
That I did: I argued then and argue now that "the defining conflict of the 21st century will be the battle over life and death. On the one side stand the partisans of mortality, who counsel humanity to quietly accept our morbid fate and go gentle into that good night. On the other is the party of life, who yearn to extend the enjoyment of healthy life to as many as possible for as long as possible." Fukuyama remains a partisan of death. Asked in 2004 if the government has a right to tell its citizens that they have to die, he answered, "Yes, absolutely."
In Fukuyama's account of our debate, he recalls telling me that "I was not looking forward to a world where he would be able to spout the same dumb libertarian views a hundred years from now." I don't remember that riposte, and I suspect that "esprit de l'escalier" may be affecting his recollections. In any event, biomedical progress has been much slower than Fukuyama feared and I hoped, so he probably won't have to endure the sound of me spouting libertarian ideals into the next century.
Given Fukuyama's ambivalent sadness about the end of history, it may seem somewhat perplexing that he so strenuously objects to the transhumanist project. Transhumanists are motivated by the same thymotic impulse he regrets being tamed by bourgeois complacency. As the tech investor Marc Andreessen directly stated in his "Tech Optimist Manifesto," after identifying himself as one who believes "in deliberately and systematically transforming ourselves into the kind of people who can advance technology," his "enemy is Friedrich Nietzsche's Last Man."
Fukuyama's chief concern about transhumanism is that biotechnological progress could "take away the limitations of human nature." He fears that using biotechnology to enhance human capacities will have fatal consequences for the idea of equal rights, and thus would restart history. I think he is underestimating liberal democracy's ability to maintain social and political peace. As I have written before, "Political and moral equality have never rested on the facts of human biology….In liberal societies the law is meant to apply equally to all, no matter how rich or poor, powerful or powerless, brilliant or stupid, enhanced or unenhanced."
Fukuyama's third enduring challenge to liberal democracy is humanity's thymotic drive to struggle, to seek recognition through sacrifice for ostensibly just causes. This impulse today fuels Islamism, Russian revanchism, and the various left- and right-wing authoritarianisms that afflict many developed countries. And, honestly, also transhumanism.
At the conclusion of The End of History and the Last Man, Fukuyama likened historical progress to a long wagon train heading to the same town. Some wagons arrive earlier at liberal democracy, but eventually the majority will get there. But in his last sentence, he wonders whether the wagoneers, having safely arrived, might find their new surroundings "inadequate and set their eyes on a new and more distant journey."
Thirty-four years later, Fukuyama concludes, "No one to date has come up with a novel architecture to house the Last Man at the end of history, but the aspiration remains."
The post The Rebirth of History and the Last Man appeared first on Reason Magazine.
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After Joseph Johnson was convicted of unauthorized marijuana cultivation in Colorado 11 years ago, his sentence was limited to probation. But because Johnson's crime could have been punished by more than a year of incarceration, his conviction triggered a federal law that makes it a felony for anyone with such a record to possess firearms or ammunition. In 2025, after a traffic stop and a welfare check in Oklahoma revealed that Johnson owned a gun, he pleaded guilty to two counts of violating 18 USC 922(g)(1) and was sentenced to a year in federal prison.
Last April, the U.S. Court of Appeals for the 10th Circuit upheld Johnson's conviction, rejecting his argument that it violated the Second Amendment. Now Johnson is asking the Supreme Court to overrule the 10th Circuit by allowing as-applied challenges to Section 922(g)(1). His petition, which has been listed for consideration at this Friday's Supreme Court conference, recently attracted support from the Cato Institute and three leading gun rights groups, which argue that the Second Amendment does not allow the government to categorically disarm nonviolent felons like Johnson.
The Supreme Court regularly receives a large number of petitions in this category and regularly declines to accept them. But its decision last June in United States v. Hemani suggests it may be more receptive this term. Hemani involved 18 USC 922(g)(3), which makes it a felony for an "unlawful user" of "any controlled substance" to receive or possess a firearm. The justices unanimously rejected the prosecution of a Texas cannabis consumer under Section 922(g)(3), saying the government may not disarm people or charge them with illegal gun possession simply because they use marijuana.
In the wake of Hemani, lower courts are addressing the question of what additional evidence is necessary to sustain a conviction under Section 922(g)(3). But in the absence of Supreme Court guidance regarding Section 922(g)(1), appeals courts have split on whether the Second Amendment poses any barrier to prosecutions under that provision. While three appeals courts have allowed people with nonviolent felony records to argue that the law is unconstitutional as applied to them, such challenges have been blocked in six circuits, including the 10th.
The 10th Circuit's decision in Johnson's case was not surprising, since the appeals court had rejected an as-applied challenge to Section 922(g)(1) in the 2025 case Vincent v. Bondi. That decision involved Melynda Vincent, a Utah social worker who had lost her gun rights because of a 2008 conviction for passing a bad check at a grocery store. Like Johnson, Vincent did not serve any time behind bars, and her crime did not suggest she was a menace to public safety. But as the 10th Circuit saw it, that did not matter.
When the Supreme Court overturned a local handgun ban in the landmark 2008 case District of Columbia v. Heller, the 10th Circuit noted, the majority said "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill," which a footnote described as "presumptively lawful regulatory measures." The Court's 2024 decision in United States v. Rahimi, which upheld a federal law that disarms people subject to domestic violence restraining orders, repeated that language. The 10th Circuit thought that foreclosed Second Amendment challenges to Section 922(g)(1), even by nonviolent offenders.
Not so, gun policy scholar Joseph G.S. Greenlee argues in a brief supporting Johnson's petition. The Supreme Court "has established that all firearm regulations must be justified by historical tradition, including the regulations that Heller labeled 'presumptively lawful,'" Greenlee says in the brief, which was filed last Thursday by the National Rifle Association, the Firearms Policy Coalition, and the Second Amendment Foundation.
When a law restricts conduct covered by the Second Amendment's "plain text," the Supreme Court said in the 2022 case New York State Rifle & Pistol Association v. Bruen, the government has the burden of "demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." That principle jibes with what the Court said about the "presumptively lawful regulatory measures" it listed in Heller: "There will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us."
Notably, those "exceptions" included "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings." Yet in Bruen, the Supreme Court rejected the claim that New York's restrictions on public gun possession could be justified under that heading, saying "there is no historical basis for New York to effectively declare the island of Manhattan a 'sensitive place.'"
That conclusion, Greenlee argues, shows that Heller's reference to "longstanding prohibitions" does not make Section 922(g)(1) immune from the Bruen test. And when you conduct the analysis required by Bruen, he says, you find "there is no tradition that supports disarming peaceable persons."
Greenlee considers colonial gun regulations that targeted black people, Native Americans, Catholics, Puritans, and Antinomians; Founding-era measures aimed at loyalists and insurrectionists; and 19th century restrictions on gun possession by slaves, freedmen, "tramps," rebels, intoxicated or mentally unsound individuals, and people who "threaten the physical safety of another." The unifying theme, he argues, is a tradition of disarming people viewed as dangerous to public safety or national security.
"America's historical tradition of firearm regulation provides support for the disarmament of only dangerous persons—disaffected persons posing a threat to the government and persons with a proven proclivity for violence," Greenlee writes. "There is no tradition of disarming peaceable citizens."
Historically, "nonviolent criminals—including nonviolent felons—who did not demonstrate a propensity for violence retained the ability to exercise their right to keep and bear arms," Greenlee says. "Indeed, some laws expressly allowed or even required them to keep and bear arms." After "completing their sentences," offenders "had full access" to their Second Amendment rights, and "able-bodied males were required to keep and bear arms under the state and federal militia acts." No one "was disarmed because the law he violated was classified as a felony."
Cato Institute lawyers Matthew Cavedon and Laura Bondank highlight the implications of the contrary rule embodied in Section 922(g)(1). "The felony label," which was "once reserved for the gravest crimes," today "reaches a vast range of conduct with no connection to violence, and legislatures can expand it at will," they write in Cato's brief. "Treating that label as a proxy for danger would let lawmakers shrink the Second Amendment's guarantee simply by writing new felonies, a power to which no other enumerated right is subject."
Vincent's lawyers, who last term unsuccessfully sought Supreme Court review of her case, noted that Section 922(g)(1) can be triggered by state offenses such as adultery, defacing a school building, "repeatedly sharing streaming websites' passwords," "temporarily using someone else's car without their consent," and "using a telephone to make a single anonymous call to annoy or embarrass." They added that federal law "includes many felonies that involve no danger," such as "knowingly and unlawfully 'export[ing] any fish or wildlife'" or making "an unauthorized recording of a movie" in a theater.
"The number of felonies has increased exponentially since the Founding," Cavedon and Bondank note. "The category of felonies has outgrown its historical core and now covers a huge range of nondangerous conduct….Today, felonies reach well beyond 'crimes like murder, assault, and rape' to cover 'an immense and diverse category' of conduct, from Mr. Johnson's marijuana cultivation to 'selling pigs without a license in Massachusetts.' Yet § 922(g)(1) treats the murderer, Mr. Johnson, and the unlicensed pig salesman the same: They all lose their right to keep and bear arms."
That policy seems constitutionally dubious in light of Hemani, which rejected the government's claim that people who use marijuana are ipso facto "unusually dangerous" and apt to commit "violent crime." As the Supreme Court saw it, that categorical judgment swept too broadly, obscuring important distinctions that are relevant in assessing the threat posed by a given defendant. "If the government cannot disarm every unlawful drug user without specific inquiry," Cavedon and Bondank argue, "it cannot do so for everyone convicted of a felony, whatever the nature of the offense."
The post A SCOTUS Petition Argues That Pot Growers, Like Pot Smokers, Cannot Be Categorically Disarmed appeared first on Reason Magazine.
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Ten-year interest rates have vaulted from around 4.5 percent in July to nearly 5.3 percent this week. That may not seem like a lot, but in the history of the bond market, such a rapid rise in rates is almost without precedent. The last time it happened was in 1994, when the "bond vigilantes" relentlessly sold bonds in response to Hillary Clinton's vision of "managed competition" in healthcare. The person on the street knows much more about the stock market than the government bond market, but it is the bond market that has the ability to impose fiscal discipline on the government.
The Clintons may have retreated from their healthcare plans in 1994, but there is no sign that Treasury Secretary Scott Bessent or President Donald Trump have learned their lesson yet. Instead of having meaningful discussions about reducing spending and entitlements, they are dreaming up ways to intervene in the bond market to get the desired result: lower interest rates.
First, some context is necessary. Most people operate under the assumption that the bond market is a mess because inflation is high. It really isn't—inflation, measured by the Consumer Price Index (CPI), is currently 3.4 percent and is on a downward trajectory—much lower than it was in 2022, when it reached 9.1 percent. The Fed's preferred measure of inflation, personal consumption expenditures, is also low and headed lower.
You might observe in the real world that oil and gas prices are high, especially diesel, and diesel is a big contributor to inflation because many goods in the U.S. are transported by truck. But the government strips out volatile food and energy prices and focuses instead on "core" CPI—an artifact of the Arthur Burns Fed in the 1970s. Even when including energy prices, inflation is headed marginally lower. So inflation is not the reason why interest rates are high.
People also believe that deficits are the main driver of higher interest rates, which is partially true. When the government is forced to issue more debt, the increased supply of bonds overwhelms demand, resulting in lower bond prices and higher interest rates. Although $2 trillion deficits sound scary, when normalized for the size of the economy, the terror abates somewhat. Deficits were twice as large post–financial crisis in the Barack Obama years, and interest rates went lower. A 6 percent deficit-to-GDP is high, but it is about where it was during Ronald Reagan's first term, and we easily grew out of those deficits and eventually reached a surplus in 2000. Not to say that the deficit isn't a problem or even an existential crisis, but if we made an honest attempt at cutting spending and getting the deficit down to about 3 percent of GDP or so, the story would have a happy ending, and interest rates would decline.
If it's not inflation, and it's not the deficit, what is it? Really, it is a crisis of credibility: Bessent's credibility, Federal Reserve Chairman Kevin Warsh's credibility, and Trump's credibility. The bond market expresses doubt that these officials will take positive action to do anything about inflation or spending. When the Warsh Fed raised interest rates last month, the bond market revolted anyway. Bessent, rather than trying to fix the structural problems, blames the "Bloomberg terminal bros" responsible for pushing interest rates up, which is not too far off from Hugo Chávez blaming Venezuelan bond traders for his interest rate problem.
About a month ago, Bessent intervened weakly in the bond market by announcing repurchases of long-term bonds of up to $4 billion per operation. In the scale of interventions, this is fairly junior varsity because the bond market trades hundreds of billions of bonds per day. Also, the Treasury Department routinely does bond buybacks here and there to improve the liquidity of off-the-run issues. Bessent later doubled down and increased the buybacks to $6 billion per operation, which resulted in interest rates going even higher—hence the credibility issue. If Bessent wants to get interest rates down, the intervention will have to be truly massive.
There are some other things the government could do to get interest rates down. Trump could direct Fannie Mae and Freddie Mac to increase purchases of mortgage-backed securities, and since the government-sponsored enterprises are still under government conservatorship, they would have no choice but to comply. This, of course, would greatly increase risk at Fannie Mae and Freddie Mac; when they failed in 2008, they required an almost $200 billion bailout.
Bessent could also discontinue the 20-year and/or 30-year bond. This would make logical sense if you were the treasury secretary—rather than locking in high interest rates for 30 years, you would discontinue their issuance and wait for interest rates to come down. However, the risk is that yields would continue to go even higher, and Bessent would have missed the chance to lock in rates at about 5.5 percent for the bond, which might look good in hindsight.
But the elephant in the room is yield curve control, or debt monetization. This is where the Federal Reserve would print money to buy unlimited quantities of Treasury bonds, pegging interest rates at certain levels. Most people know that monetizing the debt has been tried before—by Weimar Germany, Zimbabwe, and Argentina—and it has been responsible for practically every hyperinflationary episode in history. Yield curve control is less likely because it requires the Fed's participation, and the current composition of the Fed's board makes it unlikely that they would agree to it.
The 10-year interest rate is the most important price in the economy. If it rises, the market is sending signals—to borrow less and save more. It is the only thing that can possibly force discipline on the government, since voters and Congress seem not to want to do it. When you monkey with that price, you cause massive distortions in the economy because the price signal no longer works. The government will keep on borrowing, and in the case of yield curve control, it will be financed by printed money.
Democratic strategist James Carville once said: "I used to think that if there was reincarnation, I wanted to come back as the president or the pope or a .400 baseball hitter. But now I want to come back as the bond market. You can intimidate everybody." Bessent is not intimidated and is seeking to circumvent the free market. The average politically engaged person is focused on social issues and not the mechanics of government bond issuance, which is regrettable because what happens next at the Treasury could have far-reaching consequences that affect us all for decades to come.
The post The Bond Market Doesn't Trust the Treasury appeared first on Reason Magazine.
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New Space Capitalism: The Entrepreneurial Path to the Stars, by Rainer Zitelmann, Skyhorse Publishing, 282 pages, $32.99
Much of the public is unaware of the gradual transformation of space activity from a purely governmental arena to a commercial industry—or mistakenly assumes that this change arrived only with SpaceX. Rainer Zitelmann's New Space Capitalism: The Entrepreneurial Path to the Stars offers a solid, brief summary of that history. While the book highlights other companies and the need for competition, it is somewhat too credulous about claims by SpaceX chief Elon Musk. But that is a minor fault in a useful introduction to the topic.
The book's most interesting chapter is its final one, which argues that property rights should play a central role in our space future. That subject gets too little attention today. As the U.S. races back to the moon, Washington appears to be repeating the mistakes of the Apollo program: It is giving us a government-led, government-directed effort to fly government astronauts to government facilities, even if the launch vehicles this time are privately owned and operated.
The government's interest in controlling the mission is understandable. The strategic value of space is visible from Ukraine to Iran to the South China Sea, and Washington has good reason not to want another power to dominate space or to deny American access to its resources. The best way to keep lunar resources from becoming an arena of conflict is to ensure that no power can lock market democracies out. We wouldn't want to live in a world where Americans have no presence on the moon as an adversary uses lunar resources for military ends.
But we cannot rely on wise central planners, kept continuous across many elections, to achieve American goals in space. Nor can market democracies command the needed resources for such a mission. It is commercial interests that provide the sustained motivation to keep such policies moving forward. And since private actors need a profit motive, that is one reason property rights are essential.
Early outposts in isolated territories—think of the Polynesian expansion across the Pacific, or the Norse settlement of Iceland—may thrive locally without generating much export trade. In strict net-present-value terms, the development is hard to justify. But real estate value bridged the gap. Land on a barren volcanic rock is worth little; land next to a living settlement is worth more, and ownership offers investors a return. That land can be sold on expected future value, used as collateral, or treated as a real asset. A lunar mining outpost of 100 people may not have many products, but title takes no mass to ship back to Earth.
Hernando de Soto's The Mystery of Capital explains not only why formal title matters, but how the U.S. succeeded in part by breaking arrangements that locked land in inaccessible grants and by turning squatter practice—mining claims, homesteading—into law. The Homestead Act of 1862 regularized what was already happening on the ground. We should approach the settlement of space in the same spirit.
Preventing Space Serfdom
The need for property rights doesn't stop with the incentive for investment. What about the people on this frontier?
People are what space development most lacks. They are labor—if only to fix and supervise robots—and they are the only source of local demand. People need things; robots, as yet, buy nothing.
The investments required for human occupancy are not mysterious. They have been discussed since the 1960s: closed-loop life support, local resource extraction and manufacturing, propellantless cislunar transportation, and countermeasures such as spin gravity for health hazards. NASA has never given priority to even the basic research behind those technologies, but such tech will be vital for commercial development. These innovations will come from people working in space, who experience needs firsthand, or from entrepreneurs on Earth competing to sell them solutions.
Yet the government is proceeding as if none of this matters. Will government astronauts on a lunar base be allowed to improve their life-support systems? Of course not. They do not own the equipment and cannot turn a screw without approval from a distant Mission Control landlord. That absentee landlord has nothing to gain from cheaper operations or reduced resupply; those costs are budget justifications for a government agency. Will the staff own their inventions? No: As government employees or contractors, their creations will be the intellectual property of the state.
Washington is apparently prepared to abandon the tools that made the American economy work. Instead, space workers will be serfs: people who will not own their habitats, their equipment, or the product of their labor, who must do what they are told by central planners millions of miles away.
A Market Framework for the Frontier
None of this is necessary. NASA can meet its objectives by buying services from private actors. The government can create structures by which customary rights of use and occupancy—already recognized in the Artemis Accords—can be transferred, mortgaged, and sold. NASA could require contractors offering lunar surface services to give the people who live there an equity stake in the physical plant and hence an interest in improving it. We could establish from the start that people living in space or on the moon are themselves customers who can make buying decisions.
As a matter of policy, the U.S. could loosen its grip on U.S.-flagged operations in space. Applying domestic tax and regulatory structures to space environments is unfeasible. Escape from burdensome law at home has always been a reason to move to a frontier. Giving U.S. operators regulatory flexibility could prevent a scenario where commercial space fleets register under foreign flags of convenience. Space does not need to become U.S. territory for property rights to exist. Customary arrangements need only be formalized.
The sudden interest in putting data centers into orbit shows how powerful regulatory relief can be. One major driver for the interest is escaping terrestrial municipal restrictions and environmental permitting. Bypassing that constraint alone may call forth investment that dwarfs NASA's budget. The same logic applies to other heavily regulated industries on Earth, such as nuclear power, if they acquire the ability to conduct research off the planet.
Without formal property mechanisms, nation-states will enforce claims at gunpoint and billionaires with vast resources will carve out de facto monopolies. If SpaceX settled Mars, Musk could claim territorial control and make it stick, treaty or no treaty. Our goal should not be to stop private pioneers, but to ensure that dozens of competitors can join so that no single entity dictates terms for the rest. The small entrepreneur and the individual settler need the protection of property rights most.
The post Who Will Own the Moon? appeared first on Reason Magazine.
]]>Haugen argues that the problem with social media isn't simply bad content, but platform design choices that reward virality, compulsive engagement, and algorithmic recommendations, and she claims that design-based fixes can often reduce harm without requiring censorship. She also discusses her concerns about children's safety, foreign influence operations, political misinformation, and Facebook's role in recommending extreme content; at the same time, she pushes back on sweeping bans on social media for minors. Soave presses her on free speech, parental responsibility, Section 230, and whether platforms should really be responsible for preventing users from organizing around false or extreme beliefs.
The conversation ends with Haugen reflecting on The Social Reckoning and arguing for greater transparency into how platforms rank and recommend content so users and the public can better understand the systems shaping their online lives.
The post Whistleblower Frances Haugen Trashes Facebook's Flawed Fact-Checkers appeared first on Reason Magazine.
]]>President Trump recently tried to use Section 338 of the notorious Smoot-Hawley Tariff Act of 1930 to ban several categories of Canadian imports outright, as well as to impose tariffs on others. This led some to fear that Trump has discovered a largely unlimited power for the president to restrict imports.
Courts have thus far constrained Trump's efforts to impose sweeping tariffs, most notably in the Supreme Court's decision in Learning Resources, Inc. v. Trump (a case I helped litigate), which struck down Trump's massive imposition of tariffs under the International Emergency Economic Powers Act of 1977 (IEEPA). But perhaps import bans would be different. Trump himself said after the IEEPA decision that "I can destroy the trade. I'm even allowed to impose a foreign country destroying embargo."
That claim is badly wrong. Like tariffs, import restrictions are a congressional power under the Constitution, not an executive one. Thus, the president cannot impose import bans without congressional authorization. While some statutes delegate import restriction authority to the president, that power is strictly limited. And, as with tariffs, interpreting these authorities in a way that gives the president a blank check to impose import bans would run afoul of the major questions doctrine and constitutional nondelegation.
It remains to be seen whether Trump or a future president might decide to claim sweeping authority to impose import bans at will. But when and if such an effort materializes, courts should strike it down.
The rest of the article goes into the relevant issues in greater detail, including considering several statutes that might potentially be used in any effort to institute sweeping executive-imposed import bans.
The post My New Lawfare Article on Why "The President Doesn't Have Unlimited Power to Impose Import Bans" appeared first on Reason Magazine.
]]>Friends and those who support the nomination have pointed to a few things in Butler's defense. First, Butler wrote very strong briefs defending qualified immunity on behalf of paying clients. Okay. QI is an issue that divides conservatives. Justices Scalia and Thomas did not agree. Judges Willett and Oldham do not agree. This is not exactly a useful predictor of Judge Butler's jurisprudence. And there is nothing particularly controversial about this work. No one receives a medal of courage for insurance defense work.
Second, Defenders have also pointed to the responsibility of becoming the managing partner of Phelps Dunbar's office in Jackson, Mississippi. Phelps Dunbar has 18 offices and about 500 lawyers. By my count, there are about 30 attorneys in the Jackson office, including one of Butler's most vigorous defenders on social media. Okay. That responsibility is something. I suppose the managing partners of the seventeen other offices are also viable nominees for the Fifth Circuit. Same for the managing partners at each of the offices for all of the other firms on the AmLaw 200.
Third, Defenders declare that Edith Hollan Jones did not have public service experience before being appointed to the Fifth Circuit. Judge Jones was the General Counsel of the Texas GOP from 1982-1983. That year, a Democrat won the Texas Governor's race, and Lloyd Bentsen was serving his third term. Texas was not yet the GOP Powerhouse it became in the 1990s. A young Edith Jones was boldly building the Republican party of Texas. Likewise, Judge Jerry Smith was the City Attorney of Houston, and argued City of Houston v. Hill before the Supreme Court. If anyone is trying to compare Todd Butler, as the nominee, to Smith and Jones in the 1980s, I would gladly have that conversation.
Fourth, the truth also comes out that Butler did in fact attend my 2022 talk to the Jackson Federalist Society chapter. I stand corrected. I distinctly remember meeting several of the dignitaries in the room, but not Butler. But the truth matters. I went back through my archives and found a photograph from the event, and Butler was there. If attendance at a few FedSoc meetings is sufficient to make one a viable Fifth Circuit nominee, I would point out that Scott Stewart was also in the room.
Like I said, there is not much in the "affirmative" column for Butler, and there is quite a bit in the "negative" column. Perhaps the most dispiriting aspect of this process is the message it sends. A current conservative law student who will be clerking on the Fifth Circuit sent me this message:
I wanted to write and thank you for raising awareness about the questionable Todd Butler nomination. As you correctly noted, seats of this magnitude must be reserved for people who have dedicated some portion their life to the Cause/public service. I am eager to see if this turns into another Judge Ozerden situation— time will tell!
Those are willing to risk their lives, fortunes, and sacred honors to promote the rule of law will be passed over for those who simply cash a paycheck. We need to recognize those and reward those who display courage, not those who simply skate by and have friends in high places.
The most useful metric to predict how Judge Butler will vote is Judge Southwick's record. It is clear enough that Judge Southwick chose Butler as his heir apparent. And like most judges who do so, we can safely assume that Southwick has picked someone who will uphold his judicial legacy. So, let's Ask Jeeves: how will the Butler vote?
I searched for recent Fifth Circuit en banc votes. Again, on 17-member Court, the vote often splits 9-8. If a senior judge is on a panel, or there is a recusal, or a conservative member has some idiosyncratic take, the vote usually goes the other way.
Here are cases where Judge Southwick dissented from the en banc court's majority opinion. In many of the cases, Southwick joined a dissent from Judge Higginson.
My research here was fairly quick, and I'm sure I missed some relevant cases. But these cases speak to how Judge Southwick votes on the most consequential Fifth Circuit cases. I don't expect that a Judge Butler would vote much different. If there is any evidence that he disagrees with Judge Southwick on these sorts of matters, it should be known before he receives a lifetime commission. And no, I don't care how he votes on cases involving qualified immunity and other lawsuits against municipalities.
The post Ask Jeeves appeared first on Reason Magazine.
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When Eagle Sports Range in Cudahy, Wisconsin, removed its three Flock Safety cameras in August, general manager Saad Jaber cited broader customer privacy concerns, not misuse at the range. In Cleveland, Georgia, Gun Commanders owner Michael Carter covered his privately owned Flock camera with a trash bag and is having it permanently removed, telling Now Georgia his customers' trust matters more than "any piece of technology."
Police misuse of plate-reader data has sparked a nationwide backlash against those cameras. Gun owners have an additional worry: A lawful trip to a gun store or range could put them on a government list.
At a Senate hearing on Flock last month, Sen. Josh Hawley (R–Mo.) noted the cameras outside gun shows, stores, and ranges and pointed out that Second Amendment supporters have "long feared national databases of any kind." A week later, he announced he would soon introduce the Stop Flock Abuse Act, which would require written approval and audit logs for searches and deletion of most plate data after 10 days. "Law-abiding Americans should not be treated like criminals," he said.
He's right about that, but he should add another rule. None of Hawley's announced safeguards specifically mention gun stores, gun shows, or ranges, and a search that is approved and logged can still return every car that pulled into one of those places.
Producers of automated license plate readers (ALPRs) such as Flock claim their vehicle-related intelligence tools can link sightings across multiple locations and cases and surface repeated appearances across time. If an ALPR records vehicles entering and exiting a gun store parking lot, querying those records could produce a list of every vehicle that came and went, while collecting no actual data on firearms transactions that occurred.
An ALPR identifies a vehicle, not necessarily its driver, and existing roadside cameras may just record passing traffic and not customers. Even a confirmed visit to a gun store does not establish a firearm purchase or gun ownership. Someone could be taking a safety class, or could be shopping with a friend, or might just be window shopping. A mistaken inference, by a human investigator or by an AI, could subject that person to scrutiny as a presumed gun owner.
Federal anti-registry laws do not settle whether gun store or range visitor lists are allowed. Under U.S. code, federal firearms regulations may not require any system to register firearms or their owners. The Brady Act generally bars federal officials from using the National Instant Criminal Background Check System to build firearms registries. Neither provision addresses the issue of whether local police can compile gun store visitor lists from plate-reader data.
State laws raise a similar question. Alabama prohibits government entities from "knowingly" keeping lists of privately owned firearms or "the owners of firearms," with exceptions for criminal investigations, prosecutions, and other legally required records. This is the exact law that gun activists in the state have cited when calling for Alabama to ban Flock cameras. Whether a list of vehicles seen at a gun store counts as a list of "the owners of firearms" is precisely the ambiguity lawmakers should eliminate.
Federal agencies have pursued this type of record in the past. An April 2009 Drug Enforcement Administration email discussed plate-reader operations at gun shows. When this came to light in 2015, the agency clarified that the effort was a proposal and was never implemented. But The Wall Street Journal reported in 2016 that Immigration and Customs Enforcement (ICE) worked with local police to scan plates at a California gun show in 2010 and compare them against border-crossing records. ICE later confirmed the operation took place but declined to comment on specific methods.
Protecting visitors' privacy does not prevent or obstruct legitimate investigations. Jaber, of Eagle Sports, said the range's Flock cameras helped investigate a firearm stolen from a vehicle in its parking lot. A reported theft provides a legitimate reason to seek the camera's evidence. A lawful visit alone does not.
In response to recent concerns about privacy, Flock announced a series of reforms, including mandatory case codes and Audit Assistance for law-enforcement customers by the end of 2026. It also now allows agencies to restrict other departments' searches by offense type. If implemented properly, those reforms could document searches, flag potential abnormal activity, and restrict access. They are no substitute for a legal prohibition on government lists built solely on lawful visits, and Flock's CEO told Hawley in a letter that Congress should create a federal framework.
Washington state provides a good starting point for what a national framework could look like. Its plate-reader law, effective as of March 30, 2026, limits collection around specific, named facilities, including schools, places of worship, and protected healthcare facilities. It also restricts tracking activity protected by Washington's constitution or the First Amendment, and it requires warrants before police can access privately held ALPR data. Gun stores, gun shows, and ranges are not specifically listed with the other protected locations. But Washington's constitution includes the right to bear arms, so the law arguably covers gun store tracking already. Explicitly naming gun stores, gun shows, and ranges would remove all doubt.
In Ohio, state Sen. Al Cutrona (R–Canfield) has introduced S.B. 469, which would prohibit government plate readers within 500 feet of firearms retailers and places of worship while expressly allowing businesses to share their own camera data with police. The proposed law does not name ranges or gun shows.
Lawmakers should also limit what government can compile from privately shared records and how long it keeps them. Three rules would take care of this.
First, restrict routine government plate-reader collection from cataloging vehicles coming and going from gun stores, gun shows, and ranges. Specifically define protected entrances and other access roads to avoid instituting arbitrary "distance from building" camera rules.
Second, expressly ban government-collected visitor lists, and presumptions of firearm ownership based only on lawful visits, no matter where the data come from. Require a warrant for searches designed to identify who visited a protected location. Impose limits on those searches by time, location, and cameras. There can be exceptions for an investigation of a known vehicle connected to a specific crime and for genuine emergencies, followed by prompt review.
Third, make the limits enforceable through the preservation of query logs for independent audits. Restrict exports and retention of unrelated results while honoring evidence-preservation obligations. Provide a civil remedy for unlawful collection or use. When agencies share information, restrictions should follow the data.
Businesses would retain the right and the ability to run security cameras and share footage of incidents with police as they see fit under current law. The restrictions described here on standing lists would apply only to what governments compile from those records.
Buying a firearm is a lawful activity. Visiting a gun store is too. Neither should be enough to put someone on a government list.
The post A Visit to a Gun Store Shouldn't Put You on a Government List appeared first on Reason Magazine.
]]>But I think that it's a mistake to treat this as a goal above all others, as the Preamble to the Constitution itself reflects (and of course the specific provisions within the text of the Constitution and the Amendments—which are part of the Constitution—do as well):
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The Constitution was set up to do many things at once, and I want them all. I would like our government to provide for justice, and protect domestic tranquility, and defend us against our enemies, and make the country wealthier, and protect liberty.
To be sure, these interests are sometimes in tension: For instance, national defense will often undermine liberty to some extent, and liberty will often undermine national defense. On the other hand, the interests often go together: For instance, liberty will generally produce more economic growth, and wealthier countries also generally find it easier to defend themselves. In any event, the Constitution sets up our federal government to try to secure all these benefits, rather than to categorically prioritize one (whether liberty or national security or the general welfare) above the others.
And that's what I want, too. I love liberty, including freedom from oppression by my own government.
But I also want freedom from oppression by foreign governments (which requires an effective "common defence"), freedom from oppression by violent factions within our country (which requires protection for "domestic Tranquility"), and freedom from oppression by criminals and criminal gangs (which requires "establish[ing] Justice").
I also want more "general Welfare." First, that generally translates into more wealth, health, and opportunity for me, and therefore practical liberty for me to pursue the things I value. The concept of "freedom from want" can be overstated, but it captures an important point, and "freedom of opportunity" means more than just freedom from restraints on opportunity imposed by American governments. Second, providing the same things for other Americans tends to make it easier to prevent foreign oppression and violent revolution. And an effective Union of the states generally tends to promote these values as well.
Again, one should always watch for the ever-present risk that pursuing some of these goals may unduly undermine other goals. One should also watch for perverse consequences, for instance when attempts to promote the general welfare or the common defense actually undermine these very values.
And of course there's always the possibility that the Preamble's plan is mistaken, and that we should categorically reject one or another of these goals. For instance, perhaps a government should be categorically denied the power to act simply to "promote the general Welfare," and should leave such promotion entirely to the nongovernmental actions of free and well-defended private individuals. Or perhaps the federal government should be denied some of these powers, and any governmental action to protect them should be at the state level. Or perhaps these values are better served by a looser Union, or no Union at all, than by the tighter Union that the Constitution created.
But at least until someone shows me a better plan, I'd be inclined to see our country stick with this one. And that is a plan that seeks to serve many goals at once, including securing the blessings of liberty, rather than just one goal.
The post I Want It All appeared first on Reason Magazine.
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I joined Facebook in 2004, Twitter in 2007, and Instagram in 2012—and I loved them. Really loved them. Especially Twitter. There was a time where my interior monologue happened in tweets.
No one is sadder than me to say it, but social media is over. Dead. Done.
Those platforms still exist. So do newer contenders. But they bear little resemblance to the mediums I fell in love with.
In Reason's latest print issue, I've got a long piece that attempts to grapple with why and how this tragedy—yes, I'm calling it that unironically—happened. (Come for the pointing fingers at politicians, stay for my personal connection to AOC dancing on a rooftop!) It could have been a much longer article. To keep it tight, we focused mainly on political factors that have hastened social media's decline.
But there's a lot more to this story. So I'm going to use today's newsletter to wax a little nostalgic, flesh out a few more theories, and share some fun commentary from others that didn't make it into the final piece.
First: the nostalgia—a little for nostalgia's sake, a little because understanding what we lost requires understanding what we had. And what we had felt, for a while, fun and friendly and magical. Remember?
A little scene setting, courtesy of the print piece:
When AOC, my friends, and everyone else made these videos, no one was monetizing this content. The point was simply participation. The goal was to have fun. We were young, and so was social media.
A lot of early social media was like that. Cheesy. Collaborative. Pointless. People posted pictures of themselves "planking"—lying face down in weird locales, like the kitchen counter—just to be a part of a trend. They dumped ice water on their own heads and posted it, allegedly for Lou Gehrig's disease awareness but mostly just because it was the thing to do. They posted old photos on #ThrowbackThursday, lists of accounts they liked on #FollowFriday, and the results of whatever BuzzFeed personality quiz was new that week.
There were wedding, party, and conference hashtags, so everyone at an event, or following along online, could catch all the pictures and updates. If you ran into friends, made new friends, or just saw someone you vaguely knew at an event, you absolutely had to take and post a selfie.
We tweeted about where we were going out, and "checked in" to coffee shops on Foursquare. We made surveillance so easy, and we were too caught up in the hype of constant communication to care.
We were all in a big poly-parasocial relationship with one another, but the lines felt blurrier. It wasn't that weird for online friendships to eventually spill over into real life. And it wasn't weird to know—and genuinely care—about the lives of the people you interacted with online. (Perhaps the key to that sentence is "interacted." Social media was a much less passive medium then, and the parasocial-to-just-social bridge gets much shorter when you're mutually interacting day in and out.)
Before it became a platform for fighting, Twitter was a platform "where you had conversations with people and tried out ideas," says Ben Smith—lately of Semafor but once editor-in-chief of that bastion of the old internet, Buzzfeed News. People turned away from it and many of the old-school platforms "because they became toxic and horrible. But also, remember how nice they were?" he asks. "Like, I feel like I know you and we're total strangers. I used to really enjoy your tweets, and you would DM me once in a while and be like, 'great story!' or whatever. And I made a lot of really good friends on there, and it felt like all those interactions were real."
Smith also shared this tidbit, which I must pass on because it's such a perfect distillation of the kind of things that happened on the early-21st-century internet: His Buzzfeed colleague Ze Frank, a vlogger, would encourage people to make an "earth sandwich" by finding "someone who lived in the exact antipode of where you lived and each put a piece of white bread on the ground at the same time."
Absurd and pointless? Yes. But also centered around connection. With the social web, we had these radical new ways of connecting, and we were testing their use cases, feeling out the parameters, figuring out by trial and error what they might be good for.
It's tempting to conflate that era of the internet with particular platforms. But it was also an ethos—of optimism, silliness, possibility—combined with an astounding acceptance of the idea that social media was and forever would be our new normal.
In its early years, social media felt omnipresent and etiquette around it emerged to favor that feeling. ("I think the way that we interacted with social media, once upon a time, was a quintessentially Millennial experience," says author and Substacker Freddie DeBoer.)
If you met someone new in person—at a party, at a work event, at school, wherever—the thing to do was to friend them afterward on Facebook, Twitter, or Instagram. If you were planning an event, of course the easiest way to let people know was with a Facebook invite. If you had big news, of course you announced it there.
As a result, it felt like you had to be on these platforms. If you wanted to keep in touch with old friends, build relationships with new friends, get invited to parties, see family members' photos, promote your art or work or school fundraiser, participate in a cause, anything—you had to be there.
Smith suggests that for those of us in or approaching middle age, falling out of love with the old platforms might just be part of the natural life cycle of hangouts:
I actually think to some degree [social platforms] come and go in the same way that restaurants and clubs come and go. Like why is a club popular, why do you like going to a bar? Well, it's because your friends are there. And then why do you stop going? Your friends aren't there anymore.
And if they fix the sound system or the lighting or, like, they make the beer better—it doesn't matter. And you're not going to the same bar when you're 30 as when you were 20. And there's not really any way to fix that.
I think a lot of this stuff is, like, these are social institutions that come and go. YouTube is the only one that has turned itself into infrastructure for everyone.
I think there's something to that, for sure. But also, at one point, all social media felt like infrastructure. What happened?
In the early days of the social web, that "everyone you know and everything you care about is here" feeling was combined with a lack of algorithmic curation. Our feeds were just chronological lists of things shared by our friends or the brands and bands and groups and media we followed. Things were less exciting, in some ways, but also more customizable and controllable.
The introduction of algorithmic feeds changed things greatly. Rather than logging in and perhaps seeing up top a picture of your friend's children, someone's Farmville game results, a link to the latest Buzzfeed personality quiz, or a benign comment about whatever TV show was trending, you were likely to see something more captivating, more infuriating, more engaging. And for a while, this seemed to make social media even more compelling.
Look, I once wrote a whole feature called "In Defense of Algorithms." I don't think algorithms are to blame for anything near the chaos and calamity they get blamed for. But I do think the switch to algorithmically selected content may have started something that the TikTok-ification of everything would later turbocharge, and that this ironically would ultimately weaken people's ties to social media. The platforms shot themselves in the foot.
The algorithms—combined with politicians pushing platforms away from news/politics/journalism content, as I noted in my longer piece—certainly aided professional influencers in gaining ground.
In the early days of social media, no one spoke of "curation" or "content strategy." The idea—in theory, if not always in practice—was just to share what you were doing or thinking right then. (Or, if you were a professional or aspiring writer or commentator, to share enticements to things you had written and posted elsewhere.) Posting simply didn't require a lot of thought, and whether your friends and followers would see your posts depended only on when they logged in. But in an algorithm-driven universe, the most "engaging" content (as determined by likes and comments) and the creators who strive for this rise to the top.
Influencer culture changed the way people think about posting. Gone are the days where one would throw a bunch of unedited vacation pics in a Facebook album, post a random happy hour pic to Instagram, or upload to YouTube a single-camera shot of a long conference panel.
Influencer posting is "very strategic" and "very thought out," says tech journalist Taylor Lorenz, who writes the UserMag newsletter on Substack. "It used to just be fun to share things." But now, "because it's such a hyper intense attention economy" and "platforms are moving towards [being] more like entertainment, consumption based platforms," people feel insecure about sharing content that doesn't feel highly produced. "You feel this pressure to make it look good…the production value for everything is up so much."
Then TikTok started outpacing other platforms in the attention economy, and other platforms—namely Facebook and Instagram—started trying to be more like TikTok, prioritizing short-form video content and pushing more and more of it into everyone's feeds whether they followed folks sharing these videos or not.
The ascendancy of short-form video was the biggest counterpoint people gave me to the idea that social media was dying. "I think it would be a mistake to overgeneralize from 'stuff that looks and functions very much like Twitter is becoming less popular & relevant' to 'social media is dying,'" says Julian Sanchez, who writes the newsletter Non-Content on Substack (and long ago was a staffer at Reason).
In judging whether social media is over, "I think the only question that really matters is whether shortform video counts as social media," says DeBoer. "If it does, then obviously the era isn't over."
And yet… "Instagram Reels and TikToks serve very different purposes than Facebook and Twitter once did," DeBoer adds. "I think people mean something very different when they're talking about social media."
I do too. And I think the pivot to short-form video—which is very much not the kind of thing that just everyone can get in on—may actually have helped kill social media, or be on its way to doing so. With the TikTok-ificaiton of everything, the effort it takes to post goes up (a video is a whole different beast than a bit of text or a still photo) and the impetus to post rather than simply consume content goes down. More and more of our feeds are filled not with our friends, or even with celebrities and culture-makers we followed, but with random videos of random people that some algorithms determines we might watch.
Again, this is clearly meant to make social platforms more engaging—and certainly on some level and for some people, it does. But engagement-driving algorithms combined with the "everything is television" version of social media that we know now may also be making it easier for people to cut down on or quit social platforms altogether.
"Network effects"—a fancy way of saying that there are benefits to everyone you know or everyone you want to interact with being in one place or using the same product—helped pin people to legacy platforms like X/Twitter and Facebook. But as our feeds started being inundated with influencer posts and then all manner of short-form videos produced by total strangers, we started seeing less and less of the people who brought us to these platforms in the first place and made it feel crucial to be on them.
It's not so hard to leave Facebook or Instagram when what you're seeing there is largely content created by people you neither know nor have ever even heard of, along with ample ads and some AI slop. It's not so hard to leave when you're no longer connecting and conversing, or even fighting, but just consuming.
When people are down on the internet, they used to talk about "getting into these nasty online arguments," whereas now they talk about "doom-scrolling," points out Katherine Dee of Default.Blog. "They're not even really invested in what they're consuming on their phone, it's just kind of something to do."
"I'm one of the rare people who thinks that [short-form video] doesn't really rot your brain," she adds. (Me too!) But watching short-form videos is something you might do in the way you once sort of just had the TV on in the background, she suggests. It's closer to that then to the way we used to use social media. Social media of yore "was often cheesy, but it was participatory," Dee points out. "You felt like you were all joining in and doing something together. And I think that feeling is very, very over."
The more passive use of "social" media like TikTok videos, Instagram Reels, and YouTube shorts may not be a herald of doom or even a new phenomenon—more like a return to baseline. It brings us closer to the media/news consumption habits of millennials' parents and grandparents than the anomalous years of the millennial internet, of peak Twitter and Facebook, of Buzzfeed quizzes and "gram-worthy" backdrops, pile-ons and participatory memes.
Putting down our phones in those years could be difficult, and certainly harder than changing the channel or pressing off while half-hardheartedly flipping through TV stations. But as social media has gets more like TV—passive, filled with strangers—it also gets easier and easier to walk away.
A.I. right now reminds me of the late-'90s internet. There's a ton of hype around projects that hardly any consumers seem to want; you have to tune that out and figure out what uses ordinary people are finding for it.
— Jesse Walker (@notjessewalker) October 4, 2026
• A Wall Street Journal op-ed blaming porn for gang rape claims "most online porn videos contain depictions of some kind of physical violence." The linked study surveyed the best-selling and most-rented porn videos from late 2004 and early 2005. (And the "violence" here includes spanking.)
• How Rand Paul killed KOSA (for now, at least).
• The lesbian-tinged campaign ad dividing conservatives.
• Anthropic stop-talking-about-Claude-as-if-it's-human challenge.
• Is using artificial intelligence to help you talk to federal agents prohibited now?
STOPPED AT THE PORT
Washington Dulles
A traveler used AI to prepare for CBP questioning and apparently got one more tip: destroy the evidence.
Officers found the shredded instructions and put them back together piece by piece.
The plan meant to get them in helped send them home instead.
#OFOproud— Executive Asst. Commissioner Diane J. Sabatino (@OFOEAC) October 1, 2026
• Every time a politician even slightly leans toward supporting sex work decriminalization, some opponent will trot out sex-trafficking survivors like show ponies and pretend that letting consenting adults sell sexual services is the same thing as letting women be forced into prostitution.
• "U.S. Customs and Border Protection (CBP) searched 47,047 electronic devices (phones, cameras, laptops, etc.) at U.S. ports of entry (POE), detaining 2,316 devices for further investigation in fiscal year 2024," per the Department of Homeland Security's Office of the Inspector General. "However, CBP did not properly document device searches or track key…metrics related to extracted information."
• Eric Boehm asked the White House's new AI chatbot about tariffs, and the bot did not stick to Trump's script.
• It's always "antitrust."
The post The End of Social Media appeared first on Reason Magazine.
]]>In today's episode, Reason Interview guest host Zach Weissmueller asks what led Osborn to, in his words, "reject the notion of a two-party system altogether" and run as an independent. Osborn defends his "independent" label and distances himself from establishment Democrats and the "Democratic Socialist agenda," which he calls "too extreme." He also says he hopes to ally with libertarian Republicans like Sen. Rand Paul (R–Ky.) to rein in mass surveillance and legalize hemp farms, and he explains why he opposes some, but not all, tariffs. Other topics include how Osborn plans to balance the budget without touching entitlements, his concerns about data centers, his views on the Second Amendment and immigration, and his plan to enact mandatory age caps for federal lawmakers, Supreme Court justices, and executive branch officials.
0:00—Introduction
0:50—Why is Osborn running as an independent?
2:02—Where does Osborn break from Democrats?
4:08—Osborn responds to leaked border wall comments.
6:05—Democratic Socialists of America
7:53—Where will Osborn work with Republicans?
10:20—Ending the surveillance state
11:26—Protecting Second Amendment rights
14:10—The Iran war and War Powers Resolution
17:17—The national debt and spending cuts
20:56—Tariff policies
24:47—Data centers
26:27—Age limits on elected officials
28:08—A message for Donald Trump voters
Producer: Paul Alexander
Audio Mixer: Ian Keyser
This is an AI-generated transcript. Check all quotes against the audio for accuracy.
Zach Weissmueller: Dan Osborn, thank you for coming on the show.
Dan Osborn: Thank you. Thanks for having me.
You've got a legitimate shot of being Nebraska's next senator, running as an independent. And looking at your platform, it does look like several of your positions don't fit cleanly in a partisan or ideological block, which is what's interesting to me and hopefully some of our audience. So tell me, first of all, why run as an Independent?
Yeah, as the sign says behind me, we call it nonpartisan in Nebraska, your party registration. And I've been a registered nonpartisan or independent since the time I could register to vote. I've never believed in the fact that I have to accept a set of values and principles and reject the other side to be a part of a party. I kind of reject the notion of the two-party system altogether. I think George Washington, the very first independent, he warned us in his farewell address of the two parties and where it could lead and I think we're there. I think we're stuck in a two-party doom loop. Neither side wants either side to have a win and they're not working for the people. That's what I want to change, I wanna change the game.
And your opponent in the race, a Republican, has said that this whole independent thing is fake, that you're just an undercover Democrat. And there was a recent article in UnHerd that described you and several others as "Potemkin Democrats", they say, "MAGA-coded candidates who actually turn out to be conventional liberals behind closed doors". So, how do you respond to this idea that this is just a strategy to run Democrats with different branding in states where they're unpopular?
Where would you say you differ most from your standard Democrat?
Yeah, well, I would have to start by saying that I was recruited by railroaders in central Nebraska, North Platte specifically. They have the largest rail yard in the world to run against Deb Fisher in 2024 because she takes corporate money from the railroads and does their bidding. And she headed the transportation committee that allowed railroads to police their own safety, and now they have death factored in as acceptable. So that's why I got into politics altogether. I was not, I am not an operative. I'm a mechanic. I was also a sailor and in the Nebraska Army National Guard. That's who I am. And that's who I've always been. And you know, I'm doing this, again, to give a voice to the people. But, you know what makes me not a Democrat? Well, I would say— I'd say Joe Biden and Harris failed on the border. I'm a staunch Second Amendment supporter. You know, I suppose the list goes on and on, but again, I think really it's about the money in politics and getting the money out of politics because right now we're stuck in another war in the Middle East and the defense contractors and AIPAC, people like that, are the ones funding my opponent's campaign. And of course, he's gonna rubber stamp another war.
You mentioned immigration is one issue where you're differentiated from the Democratic Party. There was a Politico report on a leaked tape from July where you seem to call, according to the reporting, the border wall, "a symbol of racism" that "does nothing." Do you stand by those comments?
Well, it comes from a place of…the fact that there's no border wall of Canada. And you can put up a wall. And like I said, it's more symbolic than anything because you can put a 30-foot wall up and they're just gonna sell 31-foot ladders, right? One side of the wall says, "closed", the other side says, "now hiring". It's about holding the companies like the meat packers that - you know - exploit the labor, pay them next to nothing, and enrich themselves and funnel money into campaigns so they can keep doing it. There's got to be accountability there. The wall is a piece of it, but I think it definitely doesn't go far enough.
So what is your preferred immigration policy if you had to boil it down?
I think it's going to be getting corporations, small business owners, American workers, labor unions, getting judges and lawyers and advocates into the same room and hashing it out and finding a way—an immigration reform that works for American businesses doesn't undercut American workers, but still allows immigration to occur. Because we know we have..with the Baby Boomers retiring we got a lot of open jobs, especially out on cattle ranches and construction work. We know we need workers to keep this country running forward.
So it's got to find a way to work for everyone.
And then one more background question before we get into some of your policy positions that I think might be interesting for our libertarian audience. You mentioned the railroad workers who recruited you to run in 2024. There's also been reporting again from Politico that the same former Democratic Socialist of America organizer who recruited Graham Plattner to run in Maine was involved recruiting you back in 2024. Are you sympathetic to, this is a rising strain in the Democratic Party, are you sympathetic to the Democratic socialist agenda promoted by the likes of Mamdani and AOC?
No, I think it's extreme. Again, getting into this to protect workers' rights is why I got into this and fighting the money in politics. That's the sole reasons I got into this crazy political-industrial complex, that it is. To hopefully change the game. The Democrat socialist agenda, to me, it's too extreme. And most people that I talk to as I travel the state—I like football analogies. The parties operate from the end zones when I think most people, politics, land somewhere in the 40-yard line, right? And we've had this pendulum over the years. It swings back and forth because the Democrats are in charge - "my health care still sucks." Republicans are in charge - "gas prices are too much" - and so it's just this back-and-forth pendulum. It's got to stop somewhere in the middle and the DSA is not in the Middle.
You've pledged not to caucus with either party, but if elected, you know, this could be a very close margin, whoever gets control of the Senate, and that means you could be a decisive swing vote. So based on your policy positions, some of which you've hinted at here, I can imagine you voting with Democrats on various labor and antitrust issues. Are there any particular Republican senators on the other side of the aisle that you could imagine working with on specific issues?
Yeah, yeah. The legalization and the industrialization of hemp, you know, and for Nebraska it could be billions of dollars as long as we're first in, you know, industrializing the plant. You know, this is a plant, it's drought-resistant, pest-resistent, it pulls heavy metals out of the ground, it could be rotated in for crops for our farmers. And that's going to help make our farmers money. It doesn't need to be subsidized by the government. I'd definitely work with Republicans on that. I know Donald Trump ordered the Department of Justice to investigate the meat packer monopoly. I would love to break those guys up to help create…because right now, I'm a free-trade capitalist person. But right now, unfortunately, this isn't a free market. This is a controlled market by just a few players. We got to break them up to create an economic environment that favors competition, right? Which in turn elevates workers and the middle class. And we've done it before in the 1900s. Teddy Roosevelt broke up Standard Oil, and I think we're there now and we gotta do it again.
Someone, not in the Senate but in the house, who I know has championed that cause maybe from a different angle is Thomas Massie with his PRIME act which is essentially allowing, my understanding, is to allow small beef processors to compete with the big players. That's less of a antitrust argument and more of a you know competitive…trying to level the competitive playing field, I guess. You also pledged to end the surveillance state in your policy platform, specifically by opposing the renewal of Section 702 of FISA. And that's what allows the NSA to leapfrog from foreign surveillance to domestic. That's something Sen. Rand Paul of Kentucky has championed with Ron Wyden of Oregon for years. So there's a bipartisan coalition. He's also tried to prohibit corporations from selling personal data to intelligence agencies. Massie again, has tried to stop facial recognition and Flock cameras from being funded by the federal government.
Would you commit to allying with libertarian-leaning Congress members on those sorts of issues?
Oh, absolutely, 1,000 percent. Yeah, our right to privacy is apex, in my mind. I don't like the idea of our government especially using it for nefarious means to spy on its people. That's fundamentally un-American.
You've mentioned, up top, also you called yourself, "a staunch defender of the Second Amendment." What would you do as a senator to protect Americans' Second Amendment rights?
Well, I mean, we already have the right, right? So it's just gonna be continuing to either block legislation, you know, that restricts our Second Amendment rights. Yeah, it's just continuing to protect it.
You have proposed five-year mental health check-ins for owners of AR-15s, which implies you also want to create a federal registry to track that…
That's false. That's false, yeah. What they did is they took a conversation that I was having out of VFW with a gun owner who had a visible sidearm on him, and we were just having a conversation..and I was talking about that conversation. It wasn't even the original conversation that they said. I was talking about that conversation at another event. And there was a reporter there, they took it completely out of context, and they turned it into my policy.
That is completely false, and definitely a lie to try to win this election.
Yeah, because I heard the conversation. It seemed that you were agreeing with this proposal, but you're saying that's not an official position that you have.
No, no, the gun owner and I were talking about mental health background checks, and we were brainstorming ideas that we had both heard from people and having that conversation. That was it. It was just a conversation. Definitely was not me talking about any kind of policy.
You've also supported banning bump stocks, and that's an issue championed by Susan Collins, who's in another competitive race. Is that another example of a senator you might team up with?
Yeah, I mean, it's certainly not tops on my list of what I'm thinking about. You know, again, I'm thinking about Right to Repair. I'm thinking about going in there and immediately starting to figure out consumer protection issues, breaking up the credit card duopoly - Mastercard and Visa - you know, figuring out ways to keep money in people's pockets right now. The way I live my life. I'm a paycheck-to-paycheck person. And paycheck-to-paycheck people, we tread water. Hopefully we can save up enough money for Christmases and college. But right now with the price of fuel and this war, that's what's first on my mind, is trying to bring costs down for families like mine.
Yeah, so speaking of the war, you're a Navy veteran, you've been a critic of the Iran War and called for a Nebraska first foreign policy. What is that?
Yeah, that's pulling us out of Iran. Like, I'm not anti-war. I understand there's a time for it. This war has not been explained to me. And we've had Nebraskans die in this war. And I think, last count, over 850-some service members have been wounded. Those are real numbers. And besides the costs in lives. It's definitely the cost at home. So, you know, it's Nebraska first because we're getting ready to go to harvest here in the state. We're third in corn. We're fifth in soybeans. We're first in beef. And as soon as this rain stops here, we're going to be drying out our crops and harvesting. So diesel prices are approaching $7 a gallon. And that's a real problem for our agriculture. It's a real problem for all of us who have to put gas in our cars. I mean, I think probably an F-150 is gonna take 140 bucks to fill up right now. That's unsustainable. And so it is, ending this war in Iran is by default Nebraska first.
And, you know, Trump started the war without any congressional authorization. This is a kind of presidential war-making pattern that's stretched back over many administrations now. So this is something the Senate could theoretically do something about—if you make it into the Senate, would you vote for a War Powers Resolution or to cut funding for unauthorized military action?
Yeah, yeah, that's how we do it, right? Congress needs to act as a co-equal branch of government, just like the Founding Fathers intended it to be. And this is a perfect example of not having a spine. Seeing that the damage is caused for, I mean, nobody thinks that Iran should have a nuclear weapon, and, you know, when I served six months in the Persian Gulf, I went through the Strait of Hormuz four times, In both '95 and 1997. We keep an aircraft carrier battle group in the region for that very reason, right, deterrence, and it's always worked. And then we bombed Iran to cripple their enrichment capabilities. So I don't understand, nobody can explain it to me why we're there right now. The only thing that makes sense to me is the military-industrial complex needed to make some money. You know, again, I'm not anti-war. There's a time for it where we have to defend people in other nations, but right now, I think we're at war with Iran for another country. And we got to pull that back.
Another area of interest, I think, for libertarians is, that you have spoken about, you've pledged to tackle the national debt, and both sides continually contribute to that. We're currently at $32.4 trillion in debt held by the public, and your pledge is to do that in part by cutting waste and fraud and partly by not voting for any bill that's not paid for, which is good. But to actually reduce the debt at this point, that means we need to meaningfully cut spending as well.
So what sort of spending would you want to see cut?
It's the inflated spending, right? It's inflated government contracts, you know, the no-bid contracts, Right to Repair– I mentioned that. Military right to repair is huge. You know, these defense contractors lock us into service agreements. They make their equipment proprietary. So our soldiers and airmen and motor pools and air wings can't, or air hangars, they can't work on their own stuff. They've got to have the contractors come in and work on it. That's just, again, that's costing a tremendous amount of money. And the Pentagon, to my understanding, has never passed a federal audit. They have billions upon billions of dollars in unaccounted-for assets. That to me is irresponsible. I'm not suggesting that we have to cut defense spending or our budget currently, because we are in a war, and I understand the global…the world that we live in and our place in it, certainly. But it is about cutting waste, fraud, and abuse. And the Pentagon should not be excluded from that as well.
We're agreed on the need to cut waste, fraud, and abuse, but that's only gonna get you so far. I think that the DOGE experiment showed us that. There's large budget items, and in your platform, you pledged to never cut Social Security or Medicare benefits or raise the retirement age or allow any sort of privatization. How are we supposed to reduce the debt without any reforms to entitlement programs that account for a third of the budget?
Yeah, well, there's, man, probably close to 80 multinational corporations that are here in the United States that don't pay taxes. It's not about raising taxes, it's about paying a fair share. Companies like Amazon, they funnel their profits overseas, they park them there, they don't repatriate it back to the United States, so that's their loophole that they use. Jeff Bezos has his own tax code in the IRS. You know, it's this pay-to-play world that they live in. There's no accountability. I mean, the Epstein files proves that, right? This class of people has no accountability to the American people, to the workers that they employ. But yeah, so it's about the tax code and changing that and closing loopholes. So, you know, if we get the corporations to pay their 5 percent corporate tax, we're talking upwards of a trillion dollars. That we could use. But obviously we got to end that war in Iran. A billion dollars a day over there is not helping anything at all. So it is about accountability and paying a fair share.
You oppose some tariffs, but not others. Walk me through that, walk me through your tariff policy.
Yeah, I think a blanket policy for anything doesn't work. Whether you're talking about minimum wage or whether you're talking about tariffs, you can't just blanket it. You know, for example, for the industry that I'm in—plumbing, steam fitting—a domestic water heater is now $600 more than it was pre-tariff war. That's a big number. The contractor that I work for isn't going to eat that $600. He can't. He doesn't stay in business. So it gets passed on to the homeowner. And that's just one piece of a home. It's getting so expensive to maintain homes because of this. So blanket tariff policies we know don't work. It really hurt our row crop farmers. That's why they had to get bailed out again. Fifty-two percent of our market for our bean farmers got cut off. In Argentina, or China went and bought from Argentina, because they removed their tariffs. And then we bail out Argentina with $20 billion, their farmers. This doesn't make any, this does not make any sense. It's not computing in my brain.
But we do know targeted tariffs can work for industry. There's a reason why the trucks that you see on the road are still F-150s, GMCs, and Rams and Chevys. And that's because of targeted tariffs. So we know some of those tariff policies are beneficial, and we know there are some bad actors out there when it comes to reciprocal tariffs. But this blanket tariff policy, this is a tax on us, and again, that power should be with Congress.
But isn't, if we're just saying targeted tariffs, aren't we giving sort of special carve-outs to certain industries? And also, if you're running on cost of living, you're saying that tariffs undoubtedly make the price of goods that people are buying, including cars, go up. So how do you square that?
Yeah, well, it's squaring it with the manufacturers still being here in this country, right? That's why the targeted tariffs in the auto industry, there's a lot of those full-size trucks are still built here. So that's American jobs, right? The water heater, a lot of the raw materials from the water heater comes from Canada. And actually gets shipped down through the United States down in New Mexico where it gets assembled because too many of our corporations have sold out to Mexico, including my former employer Kellogg's. There's two state-of-the-art cereal plants down there that sell to the United States, and they shut down a plant right here in Omaha in favor of cheap labor. That's a hard pill for me to swallow. So I get angry when I'm understanding what's really happening there. But yeah, so then it gets assembled, and the water heater gets assembled in Mexico, then it comes back up here. So it's tariff, tariffed. So having to understand the industry is a big part of it, where everything comes from, whether you're talking about water heaters, hydronic valves, pipe fittings come from China. And I understand what they say about the blanket tariff policy is about bringing industry back here, but that doesn't happen overnight either. So we have to build infrastructure here, build the plants before we can start keeping targeted tariffs to maintain that industry.
So some of the infrastructure that's being built out now here is data centers, but you're part of the populist backlash against that. You say we shouldn't give them subsidies, which I absolutely agree with, but if they're built without any special carve-outs, why shouldn't they be allowed to just operate like any other industry?
Yeah, I think, well, it's, again, it is what is the data center being used for, right? And so again, no, not a cent of our tax dollars should be going to subsidize them, and certainly our power bills and water bills shouldn't go up a cent either if they come to our communities. So that's the guardrails that I talk about. It is about guardrailing the industry and, you know, we have to protect what we know is good and guardrail from the bad. For example, the data that the data center exists for, is it being used to cause cancer or is it being used to store data for Flock cameras to surveil us? And I know there's a data center just a couple miles up the road from where I live. It's a Facebook data center, and the whole reason of existence - and it got subsidized about $2 million of taxpayers' money to build it - all it does is house the data of deceased people. Why does that even exist? I don't know. So it is about accountability, transparency on what the data is being used for, how much water are they using, how much power are they using, and community benefit agreements for people who live in the communities that data centers are building in.
You're, as we mentioned, you're running as an independent. That is sort of an implicit critique of the two-party system. And you also, interestingly, have a critique and a policy proposal about the kind of gerontocracy that we're living in, the fact that we've got people serving in the Senate, serving in other parts of the government, who are in severely declining physical and probably cognitive health. What do you propose we do about that?
Age limits. You know, there's an age minimum. Stands to reason there should be an age maximum. I don't know what that magic number is, but if you turn, let's say if you're, if you turn 72, before your next election, you don't get to run again. You know, that, that, that may, again, just throwing a number out there, but that, that makes sense to me. And then also, you know, no former member of Congress should be able to become a lobbyist too. We need to take the teeth out of these lobbyists. Like, for example, the pharmaceutical industry, 1,500 lobbyists, it's three lobbyists for every one member of Congress. And, you know, that's why drug prices are unaffordable. They actually get tax breaks for running all those commercials during our football games. You know, Skyrizi, you're taking a bath on the beach or parasailing or whatever they're doing. They get a tax break to run those ads. And that's what 1,500 lobbyists will get you. So no former member of Congress, because they got all the, they got the Rolodex in their phones, right? Of all the power players that could be effective lobbyists, we should ban that.
Last question, because I know you've got to run. Trump is visiting your state the week this episode comes out to campaign for your opponent. He won Nebraska by about 20 points in 2024. So you will need to win some Trump voters in order to win. What is your message to them?
Yeah, I would say, when Trump first came onto the scene, the people that didn't want him to be in power are the same people that don't want me to be in power or to have any kind of seat in the halls of the Senate. It's because I represent an anti-establishment ideas, right? You know, not tearing it all down, certainly like some of those extremes on the DSAs, but it is about breaking this two-party doom loop and operating in the words of Abraham Lincoln in his address, it's a government by and for the people. You know, those principles that we live off of. Instead, right now, it's a government for the corporations and the 1% that control our elections through the money. And again, I don't take the corporate money. So yeah, I would say to those Trump voters, I'm very similar in that regard.
Ok, Dan Osborn. Thank you for talking with Reason.
Thank you. Appreciate you.
The post Can Nebraska's Dan Osborn Win Over Libertarians? appeared first on Reason Magazine.
]]>To understand our disagreement, it is important to understand what is and what is not at issue in Suncor. The question is not whether the plaintiffs here (or in other climate cases) are making bold, ambitious, or potentially overbroad claims. Nor is it whether the alleged chain of causation is too attenuated and the attempt to attribute harms in Colorado to emissions elsewhere too speculative to support liability. Nor is it whether there are grounds to narrow or pare down the scope of the conduct they challenge or damages they seek. Rather, the question is whether the plaintiffs are wholly precluded from making their claims under state law, such that the case must be dismissed. After all, the Suncor petitioners are asking the Supreme Court for only one thing: An order reversing "the Colorado Supreme Court's decision to allow Boulder's claims to proceed." That request should be denied, which is why I filed a brief in support of the respondents.
As framed by Mr. Buschbacher, "the central question in Suncor is whether states and municipalities can apply their own law to regulate the greenhouse-gas emissions of fuel producers and users." This is not quite right. The plaintiffs' claims do not target emissions, as such. Rather, their claim is that the production and marketing of fossil fuels by the defendants has caused or contributed to harms in Colorado, and Boulder County seeks compensation for such harms.
In considering the plaintiffs' claims, it is worth remembering that state tort law is routinely applied to conduct that occurs outside of the given state's borders. Consider routine product-liability claims. The law of the jurisdiction in which the harm occurred is often applied to companies that manufactured, sold, or marketed allegedly defective products elsewhere. And, provided the requirements of personal jurisdiction have been satisfied, this presents no constitutional problem. Such claims must be properly constrained, but they are not precluded.
Under current law, the federal government has the authority to preempt plaintiffs' claims should it want to do so, but it hasn't. Nor has the federal government ever enacted any statute governing the conduct targeted by the plaintiffs' claims. This likely explains why, as the litigation has gone on, the petitioners have de-emphasized their statutory arguments in favor of the broad–and untenable–claim that the constitution wholly precludes any state law claim against conduct that produces harm across state lines or international boundaries.
Mr. Buschbacher notes my concern about "home cooking"-- and this is a legitimate concern. There are limits to the extent to which states may impose the consequences of their policy choices on their neighbors. It is one thing for state courts to hear tort claims seeking recompense for damages born within their jurisdiction due to out-of-state conduct. It is quite another for state courts to impose punitive damages or demand compliance with local standards in far off places. This is the boundary the Court has already drawn in limiting the imposition of punitive damages for what is lawful out-of-state conduct. But the concern for state prerogatives cuts both ways. If Colorado may not impose its policy judgments upon conduct occurring elsewhere, then neither may other States impose upon Colorado the costs of the conduct they license. As with punitive damages, concerns about legitimate state authority may well counsel narrowing Boulder County's claims–as my brief concedes–but they do not justify preempting them.
Mr. Buschbacher raises International Paper v. Ouellette, but fails to heed its lesson. In Ouellette, a majority of the Court concluded that, due to the federal Clean Water Act, Vermont plaintiffs could not sue a New York paper mill under Vermont law because doing so would subject the facility to potentially conflicting legal standards, only one of which had been blessed by the federal government. The mill in Ouellette was subject to regulation as a "point source" under the CWA, and (owing to the CWA's cooperative federalism structure) this regulation was carried out by New York authorities under New York law. Accordingly, the decision as to how much the mill could discharge in waters of the United States was, for purposes of federal law, a matter of New York law–and to this Vermont law had to yield.
The Court in Ouellette made this point explicit, noting that "if affected States were allowed to impose separate discharge standards on a single point source, the inevitable result would be a serious interference with the achievement of the 'full purposes and objectives of Congress.'" Yet insofar as state-law claims do not threaten to impose "separate . . . standards on a single point source" there is no conflict and no basis for preemption. And here, as Mr. Buschbacher knows, Boulder's claims do not target conduct–let alone emissions–that are subject to regulation under federal law.
While barring the application of Vermont law to an out-of-state point source subject to the CWA's regulatory scheme, Ouellette expressly preserved the ability of plaintiffs to pursue state law claims against the out-of-state mill; the justices were unanimous on this point. As the Court summarized its own holding:
Nothing in the Act prevents a court sitting in an affected State from hearing a common law nuisance suit, provided that jurisdiction otherwise is proper. Both the District Court and the Court of Appeals erred, however, in concluding that Vermont law governs this litigation. The application of affected-state laws would be incompatible with the Act's delegation of authority and its comprehensive regulation of water pollution. The Act preempts state law to the extent that the state law is applied to an out-of-state point source. [Emphasis added.]
Mr. Buschbacher suggests that the plaintiff's invocation of Colorado law in their complaint should nonetheless be fatal to their claim. Again, reference to Ouellette is instructive. There, as here, the plaintiffs filed suit under their home state's law. And yet, after concluding that Vermont plaintiffs could not sue a New York point source regulated as such under the CWA under Vermont law, it did not order dismissal of the case. Rather, the case was remanded to the lower courts where appropriate state law was applied as the litigation proceeded. Further efforts to bar the suit were rejected and International Paper ultimately offered substantial settlement. So even if one were to conclude that Boulder County can do no more than seek to apply home-state law to each of the defendants' operations (something I do not believe current law requires), the petitioners' plea to reverse the Colorado Supreme Court and dismiss the case must be rejected.
According to Mr. Buschbacher, "Boulder County's suit is almost entirely about conduct far outside of Colorado" (emphasis added). I think this framing settles the question. Even were I to concede ever point Mr. Buschbacher makes, it would not justify dismissing the case, for insofar as Boulder County's suit includes petitioners' conduct that occurred in Colorado, it must be allowed to proceed, at least with regard to such conduct. I believe that current law allows for more; Mr. Buschbacher disagrees. But this is a dispute about the permissible scope of this litigation, not whether it should be allowed to continue. It is the latter question the petitioners have put before the Court, and that is the question my brief addresses.
For more on the case, here are (some of) my posts on the subject (with more to come):
The post A Response to Michael Buschbacher on <i>Suncor Energy v. Boulder County</i> appeared first on Reason Magazine.
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Bloodbath? "Democrats are heading into the last month of the midterm elections campaign with ambitions going deeper and deeper into red territory, while Republicans are grim about their hopes of holding on to either chamber of Congress," reports The Washington Post. This is not a shock: The party in the White House tends to have a hard time holding onto congressional seats, and the president is not especially nationally liked at this moment.
Democratic voter turnout in the primaries was strong, and Democratic strategists are forecasting that midterm voter turnout will be similarly strong. Some projections for how this could all go, from the Post: "In the House, Republicans hold the slimmest of majorities, with 218 seats (and one independent who caucuses with them) to the Democrats' 214. The GOP is on defense in 16 seats rated toss-ups by the Cook Political Report, compared with six Democrats. On Sept. 25, Cook shifted 15 races toward the Democrats and projected them to take over the House….If Democrats win the popular vote by 10 points this year—their current average lead in polls—they would pick up a projected 33 seats, according to Mindset, a Washington advisory firm."
Meanwhile, President Donald Trump claimed, at a weekend rally in Ohio, that if Republicans just get out and vote "we're gonna win and we're gonna win big and we're gonna shove it up their asses."
The shoving-it approach doesn't seem likely to work. One possibility is that redrawn district maps will play a larger role than currently anticipated, or that Republicans have forecast certain districts to be more solidly red than they will actually be in reality. "Republicans hoped to move 16 districts to the right with new maps in Texas (five districts), Florida (four), Ohio (two), Alabama, Louisiana, Missouri, North Carolina and Tennessee (one each)," notes the Post. "Democrats responded with five districts in California, and courts overturned the Missouri map and added a Democratic-leaning seat in Utah, cutting the Republicans' theoretical edge to nine."
That said, Republicans are outspending Democrats in many races, and Democratic primaries have in some places resulted in more radical candidates—think of Abdul El-Sayed in Michigan going up against Republican Mike Rogers for a totally open U.S. Senate seat—whose success or failure is a bit harder to anticipate.
Speaking of the Senate: Republicans hold 53 seats to Democrats' 47 (counting two independents who caucus with the Democratic Party), so Democrats need to flip four. The prospects for Democratic dominance in the Senate are slimmer than in the House, as 23 of the 35 seats up for grabs this year are in states Trump won in 2024. Ones to watch include Texas, where Democrat James Talarico (who has tried to carve out a religious, appealing-to-normies, moderate vibe) is up against scandal-plagued Republican Ken Paxton, and Maine, where Democrat Troy Jackson inherited the Platnermentum and looks possibly able to unseat Susan Collins.
Scenes from New York: "At the tip of Lower Manhattan, dozens of vendors approach wandering tourists hawking tickets for boat rides to the Statue of Liberty. But those purchases often come with a catch: The ticket buyers cannot step onto Liberty Island," reports The New York Times. "Unbeknown to many visitors, only one vendor—Statue City Cruises—is sanctioned by the National Park Service to dock at the home of Lady Liberty. Statue City Cruises sells tickets online and out of Castle Clinton National Monument, a historical fort in the Battery near the water. The peddlers whom sightseers first encounter outside the park can sell tickets only for boat tours that cruise past one of the country's most recognized monuments. A new City Council bill, backed by some local leaders, could curb what they call deceptive tactics used to dupe unsuspecting visitors. The legislation would create revocable licenses for the tour operators who employ the vendors and would give the city the authority to impose hefty fines against companies whose sellers mislead customers."
98% of US households aren't paying for AI yet
More charts in State of Markets II: https://t.co/MTaxKUxa2w https://t.co/vM9ycHFuVD pic.twitter.com/wzeMP93S3a
— a16z (@a16z) October 1, 2026
The post What's Going To Happen in the Midterms? appeared first on Reason Magazine.
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I am honored to open up the 18th Season of FantasySCOTUS. I launched the site back in 2009 when I was still clerking. Now, more than decade later, thousands of Court watchers have made their predictions. Sign up today at FantasySCOTUS.net to predict the outcome of all the blockbusters this term. 
The post Oyez! Oyez! Oyez! The October Term 2026 of FantasySCOTUS is now in session appeared first on Reason Magazine.
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From Wantagh Union Free School Dist. v. N.Y. State Bd. of Regents, decided Thursday by Second Circuit Judges John Walker, Michael Park, and Eunice Lee:
Plaintiffs-Appellants Wantagh Union Free School District, the Wantagh Union Free School District Board of Education, and Board member Anthony Greco appeal from the district court's April 28, 2025 judgment dismissing their challenge to Part 123 of the Regulations of the New York Commissioner of Education. Part 123 regulates the use of Indigenous names, logos, and mascots in New York public schools. Section 123.2 prohibits public schools from using or displaying such names, logos, or mascots "other than for purposes of classroom instruction." Section 123.5 requires schools to bar their officers and employees from "utilizing or promoting" them while on school property or at a school function.
The District's middle and high school sports teams have competed as the "Wantagh Warriors," using a logo of a Native American man in a headdress. To comply with Part 123, Wantagh planned to retire the logo but keep the "Warriors" name. The New York State Education Department rejected that plan, and this suit followed….
The court concluded that plaintiffs had no power to sue the state in their official capacities:
"New York follows the traditional capacity-to-sue rule, which states that municipalities and other local governmental corporate entities and their officers lack capacity to mount constitutional challenges to acts of the State and State legislation." There are "four limited exceptions" to this general rule, including when "compliance with the statute would force the municipal challengers to violate a constitutional proscription."
The district court properly dismissed the claims of the District, the Board, and Greco in his official capacity (the "Municipal Plaintiffs") for lack of capacity. The Municipal Plaintiffs allege that enforcing § 123.5 against their employees and officers "creates an unnecessary risk of chilling [their] speech and expression." But a mere "risk" of chilling speech does not amount to a compelled constitutional violation for purposes of New York's capacity-to-sue rule. Further, the Municipal Plaintiffs cannot show that "every conceivable application" of § 123.5 compels a constitutional violation.
But it allowed Greco had standing to sue in his personal capacity:
Greco has standing to challenge § 123.5 and the sections supplying its definitions (§ 123.1) and exceptions (§ 123.4). His alleged injury is that he is "prohibited from wearing Warriors apparel" while attending games and school functions ….
First, expressive conduct, including the choice of what to wear, may warrant First Amendment protection in some settings. Here, Greco has alleged sufficient facts to support that wearing Warriors apparel is a course of conduct "arguably affected with a constitutional interest." Greco need not show that he "will win on the merits of [his] constitutional claims" at this stage.
Second, wearing Warriors apparel to school events is arguably proscribed by § 123.5, which bars officers and employees from "utilizing or promoting" Indigenous logos. Third, the threat of enforcement is sufficiently imminent where the Board of Regents has explicitly opposed using the Warriors name: a plaintiff challenging a regulation that proscribes certain conduct need not show an "intent by the government to enforce" the regulation against him.
Greco's … claim, however, does not extend his standing to challenge §§ 123.2 or 123.3. Those sections regulate school districts, not board members….
On the merits, the court rejected Greco's vagueness claim, but allowed his free speech claim to go forward:
The district court dismissed Greco's free speech claim, concluding that the amended complaint failed to allege speech on a matter of public concern, as Pickering requires. See Pickering v. Bd. of Educ. (1968). Greco challenges that ruling on two grounds: that the Pickering framework does not govern this case at all because it "does not involve … an employer-employee relationship," and that, even if it does, he adequately alleged speech on a matter of public concern.
First, Greco's status as a volunteer, elected official raises a threshold question about the reach of Pickering. Generally, the government is "severely restricted by the First Amendment from placing restraints on speech." "But when government acts as an employer, the constraints of the First Amendment are less severe," because public employers need "control over their employees' words and actions to ensure the efficient provision of public services." Thus, "[i]n order to bring a First Amendment violation claim, a public employee must first establish that the employee spoke 'as a citizen on a matter of public concern.'"
Greco, however, is an elected member of the Wantagh Board of Education. We remand for the district court to consider in the first instance whether the Pickering framework applies to Greco as a volunteer, elected school board official.
Second, the district court erred by failing to account for the context of Greco's speech. Whether speech is on "a matter of public concern" is a question of law "to be answered by the court after examining the content, form, and context of a given statement, as revealed by the whole record." Speech qualifies when it can "be fairly considered as relating to any matter of political, social, or other concern to the community," or when it is a subject of legitimate news interest. A court may also weigh the speaker's motive and "the forum and manner in which an employee makes a statement." …
[T]he amended complaint frames this litigation as a "fight to keep the 'Warriors' name"—one that "73.7% of the community members … surveyed indicated the district should" pursue. And it alleges that Greco wears Warriors apparel to "support not only student athletes, but the school community as a whole." These allegations of expressing support for the Warriors, in the context of the ban imposed by Part 123.5 and in light of Greco's involvement in this litigation, suffice to encompass opposition to Part 123.5 as a message….
The post School Board Member's Objection to No-Indigenous-School-Team-Logos Claim Can Proceed appeared first on Reason Magazine.
]]>This civil rights action under 42 U.S.C. § 1983 and Connecticut law challenges Defendants' unconstitutional denial of Plaintiff Michael McWilliams' pistol permit application ….
[As alleged in the Complaint,] McWilliams was a "secondary school teacher, a single homosexual male, and an adoptive parent." McWilliams "has no criminal record and has never been arrested or charged with any crime." McWilliams previously owned firearms, including a handgun from 2022-2023 and a long gun from 2010-2015.
From 2018 to 2024, allegations regarding McWilliams's behavior as a foster parent followed him as he moved to and resided in several different states. Those allegations resulted in investigations by both federal, state, and local authorities. McWilliams maintains that none of the allegations was ever substantiated and that no investigating authority ever found evidence of McWilliams's wrongdoing. I now summarize each of the allegations that McWilliams cites in his complaint.
First, McWilliams provided housing to Tyler Joseph, an 18-year old male, in Marshfield, Wisconsin, but later asked Joseph to leave the home due to behavioral issues. Joseph's friend Hunter Mattheisen then accused McWilliams of engaging in sexual misconduct with Joseph and of distributing psilocybin mushrooms. McWilliams claims that the Marshfield Chief of Police wrote a letter in November 2022 stating that the department "had not established any probable cause to arrest [McWilliams]." McWilliams further maintains that Marshfield police investigated those claims and "concluded they were baseless."
Second, McWilliams fostered two boys when he lived in Cortland County, New York in 2022. In April of that year, one of the boys "absconded" from McWilliams's home after McWilliams confiscated the boy's phone. Police picked up the boy and the boy made claims that McWilliams choked him and gave him "whoopings." When police took the boy to a hospital, McWilliams maintains that hospital staff found no evidence of abuse and that the boy "admitted he was just upset about losing his phone" and said that McWilliams had not abused him. Police returned the boy to McWilliams's home that same evening.
McWilliams claims that Kelley Thomsen, a Cortland County CPS caseworker, began "pursuing the matter aggressively" after that allegation of abuse. As a result of Thomsen's "defamatory assertions," the two boys were removed from McWilliams's home. McWilliams maintains that "both boys disclosed no criminal conduct by [McWilliams]."
Third, McWilliams adopted a son through West Virginia's child welfare system in 2021. After the Cortland County abuse allegations, McWilliams alleges that Thomsen contacted the West Virginia State Adoption Program Director and characterized McWilliams as a "pedophile" and a "sexual predator." Even after those assertions, McWilliams kept custody of his adopted son. Thomsen continued to encourage investigations of McWilliams's treatment of his adopted son. McWilliams maintains that "all investigations across the various jurisdictions (Wisconsin, New York State, and FBI) were closed with no action taken against [him]." …
In June 2024, McWilliams applied to the City of Middletown for a pistol and revolver permit. The police chief is responsible for issuing that permit and he "must determine if the applicant is a 'suitable' person." White, the MPD police officer, investigated McWilliams's background in connection with the gun permit application. During that investigation, White learned of prior investigations and allegations involving McWilliams from state agencies in Wisconsin and New York.
The defendants used those prior investigations and allegations to justify the denial of McWilliams's gun permit application. Costa, the Middletown chief of police, issued a formal denial letter, stating "over the course of several years you have been investigated by multiple different agencies, to include Marshfield Wisconsin Police, SUNY Police, Cortland Police, the FBI, and NY Child Protective Services, for crimes related to sexual assault and exploitation of juveniles." The letter also stated that McWilliams "had two foster children revoked from [his] home," placed "surveillance cameras in their bedrooms," and was "accused by multiple foster children … of choking or assaulting them." Costa concluded the letter by stating "[a]t this time we feel that you are not a suitable candidate to obtain a pistol permit." …
(McWilliams alleges in his Complaint that "The [denial] letter's claims are not only factually untrue, they also omit the exculpatory context: that Plaintiff was cleared of all such allegations, and that critical evidence (like the foster boys' own statements) contradicted the accusations.")
The court held that the pistol permit denial didn't violate the Second Amendment:
The Supreme Court has endorsed Connecticut's suitability regime. N.Y. State Rifle & Pistol Ass'n v. Bruen (2022) (explaining that "although Connecticut officials have discretion to deny a concealed-carry permit to anyone who is not a 'suitable person,' see Conn. Gen. Stat. § 29-28(b), the 'suitable person' standard precludes permits only to those individuals whose conduct has shown them to be lacking the essential character of temperament necessary to be entrusted with a weapon.").
Because the Supreme Court has endorsed the relevant regulatory regime, McWilliams is implicitly asking me to determine whether Chief Costa's denial of his firearm permit was arbitrary and capricious, in violation of McWilliams's Second Amendment rights. "Under the arbitrary-and-capricious standard, judicial review of agency action is necessarily narrow. A reviewing court may not itself weigh the evidence or substitute its judgment for that of the agency."
Balancing my mandates to treat all McWilliams's allegations as true and to defer to the judgment of the Middletown Police Department, I hold that the defendant "acted within a zone of reasonableness and, in particular, [have] reasonably considered the relevant issues and reasonably explained the decision." Through the course of their background investigation to determine McWilliams's suitability for a pistol permit, the defendants unearthed unsubstantiated past allegations of sexual and physical misconduct toward minors and investigations of that misconduct by federal, state, and local authorities. The defendants weighed those allegations and investigations in evaluating McWilliams as a permit applicant and explained how that history affected their suitability determination.
Although McWilliams argues that the defendants should not have denied his permit application based on allegations that had been "investigated and dropped without charges," the Connecticut Supreme Court has held that the suitability determination can rely on factors outside of criminal conduct and convictions, including the applicant's character and "reputation in the community." Stratford Police Dep't v. Bd. of Firearms Permit Exam'rs (2022).
By evaluating McWilliams's personal history and background, the defendants effectively examined his character and reputation in the community. It is not my place to conduct a post hoc analysis of their judgment. I therefore hold that the defendants did not act in an arbitrary and capricious manner in denying McWilliams's permit application based on those past allegations and investigations….
As best I can tell from the motion to dismiss and the reply to the response to that motion, the government's key argument was:
The denial was not arbitrary but based on documented allegations, even if unsubstantiated.
Dennis M. Durao and Abraham John Schwimmer (Karsten & Tallberg LLC) represent defendants.
The post Denial of Pistol Permit Based on Allegedly "Unsubstantiated" Past Allegations of Sexual Misconduct and Child Abuse appeared first on Reason Magazine.
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The lesson plan includes all of the instructions. Please register at the Institute for Competition Sciences. Please review the winning submissions from previous years: 
Please send any questions to info@harlaninstitute.org. The post The 15th Annual Harlan Institute Virtual Supreme Court Competition appeared first on Reason Magazine.
]]>I am scheduled to participate in two events analyzing the Suncor oral argument.
On Friday, October 9, I will be talking about the case at the University of Pennsylvania's Penn Carey Law School. The event, "Discussing the Scope of Preemption in Emission s Lawsuits," will also feature James Goodwin of the Center for Progressive Reform is sponsored by the law school's Environmental Law Project and is part of Penn's Climate Week.
On Tuesday, October 13, I will again discuss the Suncor argument at the Case Western Reserve University School of Law. This event, "Hot Times at the High Court: Suncor v. Boulder County and the Future of Climate Litigation," is a webinar (though we will have an in person audience too). It will feature Professor Paul Salamanca of the University of Kentucky. Registration info is here.
For more on the case, here are (some of) my posts on the subject (with more to come):
The post Unpacking the <i>Suncor</i> Oral Argument: Two Upcoming Events appeared first on Reason Magazine.
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Fiscal year 2026 ended last week, and while official figures aren't out yet, it looks like the federal government spent $2 trillion more than it took in. That's not quite a record—in dollar terms, the federal government ran a bigger deficit in 2020 when the feds showered money on the country in hopes of offsetting COVID-19 lockdowns (fueling inflation in the process), and the deficit was a bigger share of GDP both that year and during the Great Recession. But given the federal government hasn't balanced its books in 25 years, a $2 trillion deficit adds to already staggering national debt and looming disaster.
Noting the end of the fiscal year, on October 1 the Committee for a Responsible Federal Budget (CRFB) commented: "Although official figures have not yet been released, our preliminary estimates show high and rising deficits and debt."
Among other things, the CRFB estimated a $2 trillion total deficit, totaling 6.2 percent of GDP, with debt held by the public at $32.3 trillion, or 100 percent of GDP. Interest alone totaled $1.1 trillion, "a record 3.4% of GDP."
The budget watchdog added that interest on money borrowed to finance the accumulated debt and deficits was the second largest line item, outpacing both defense and Medicare. Social Security has long been the federal government's largest expense.
The CRFB is almost certainly correct. The U.S. Department of the Treasury, using figures through the end of August, put the 2026 federal deficit at $1.965 trillion. It's a fair bet that another month of spending put the deficit over the $2 trillion mark.
To put this in context, in 2020, "in response to the pandemic's dislocations, the US government sent about $5 trillion in checks to people and businesses, $3 trillion of it newly printed money, with no plans for repayment," as economist John H. Cochrane described for the International Monetary Fund. According to the Federal Reserve Bank of St. Louis, that tallied to 14.5 percent of GDP. It also, according to Cochrane as well as researchers from Massachusetts Institute of Technology, fueled painful inflation. Federal stimulus in response to the Great Recession created a 2009 deficit of 9.8 percent of GDP.
Theoretically, those spending sprees were intended to offset emergencies, even if they had bad effects themselves. But the FY 2026 deficit was just spending as usual, representing a growing gap between what the federal government collects and what it spends that has left the budget unbalanced since 2001 and only intermittently balanced before then. The result, as the CRFB points out, is accumulating national debt, with debt held by the public over $32 trillion, plus intragovernmental debt (owed by the government to itself) of almost $8 trillion, for more than $40 trillion in total national debt.
In fact, economists Jagadeesh Gokhale and Kent Smetters of the Penn Wharton Budget Model say that unfunded obligations involving Social Security and Medicare raise the federal government's total debt burden, as of January 2025, to $91.9 trillion.
The problem for those of us who didn't already know is that, as detailed by Abhi Gupta of the Yale Budget Lab, legislators have almost totally abdicated their fiscal responsibilities: "Since 2004, Congress has generally enacted less deficit reduction than its pre-2004 predecessors would have in response to the budget outlooks it faced, even as federal debt has climbed past 100% of GDP."
Ouch. And there's little evidence that lawmakers are interested in reining-in the spree.
It's important to note the role that interest payments now play as the second largest expense in the federal budget, since that's likely to increase until borrowing largely devours the budget.
"The 10-year Treasury yield exceeded 5.3 percent yesterday—its highest intraday level since 2002," Ryan Bourne and Nathan Miller of the Cato Institute wrote October 1. "The federal government had accumulated $32.4 trillion of debt held by the public through Monday, up from $27.5 trillion in April 2024.…Maturing debt must be refinanced at whatever rates investors demand today. Previously 'cheap' debt is becoming more expensive."
Bourne and Miller clarify that there's no risk of the whole debt being immediately refinanced at higher rates. But as debt instruments mature, they incrementally roll over at new rates, which are creeping higher. The authors point to evidence that growing indebtedness among governments around the globe, not just in the U.S., is pushing interest rates up. That's raising the cost of borrowing across the board.
So, after decades of spending without regard for fiscal reality, how long can the U.S. federal government continue its profligate habits? Rising borrowing costs could be an indicator that the market is losing confidence that debt-burdened governments will ever control spending or meet their obligations. Some economists see that as an indicator of trouble to come.
"We project that the outer-bound debt-to-GDP ratio that the U.S. economy can sustain is about 210 percent of GDP," the Penn Wharton Budget Model's Kent Smetters and Hangjun He warned in June. "Above this level, there is no feasible future additional tax on broad-based labor income that can finance the interest payments at the returns demanded by financial markets."
Smetters and He plot several scenarios, concluding that the limit is likely to be hit within 20 years but that "there is a 25% chance of hitting the debt maximum in 14 years." The shorter deadline for the government to get its finances in order comes from "higher interest costs and relatively smaller GDP due to debt crowding out some capital formation." That's worth keeping in mind in light of the warning from Bourne and Miller about rising Treasury yields.
Americans have grown accustomed to a federal government that runs up the credit card as it pleases without regard for the eventual bill. But the cost to finance that spending spree is already enormous and crowding out alternative spending priorities. The day rapidly approaches when the government will lose the ability to borrow more money, or even to pay the interest on existing debt.
The post The Federal Government Ran Up a $2 Trillion Deficit in 2026 appeared first on Reason Magazine.
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Before the COVID-19 pandemic, in 2020, the Congressional Budget Office (CBO) did not include the $40 trillion mark in its gross national debt projections for the coming decade, forecasting a gross federal debt of $36 trillion in 2030. By 2022, the CBO expected the country to cross $40 trillion in 2030. A year later, that date had moved up to 2028, and by 2024, it had moved to 2027. The most recent report, from February 2026, projected that we would end the current fiscal year at $39.4 trillion. We have now surpassed the $40 trillion mark.
The last time the federal government had a budget surplus was in FY 2001. Since then, Congress and presidents have overseen deficit after deficit. The previous record holder for the most debt amassed was President Barack Obama, whose two terms saw a $13.2 trillion increase in the national debt, adjusted for inflation.
Eighteen months into his second term, President Donald Trump has already surpassed that. Adjusted for inflation, Trump's first term added $9.8 trillion in debt, and his second term has already added more than $3.5 trillion, bringing his total to $13.3 trillion—making him the president who oversaw the largest real increase in federal debt in history.
There's more to come. The CBO expects that by the end of 2028, the gross national debt will be $43.3 trillion, meaning that by the end of Trump's second term, he will have overseen a total of $7.1 trillion more in nominal debt. And the actual number will likely be higher: The CBO's forecast was done before Trump started his war with Iran, which is adding significant unforeseen spending.
Debt held by the public currently stands at about $32 trillion. Unlike gross national debt, that measure excludes intragovernmental debt—the debt the Treasury owes to federal trust funds and other government accounts. Setting aside those obligations, public debt is still roughly 100 percent of GDP.
Total debt amassed is not solely a presidential scorecard. Presidents don't have unilateral power and don't start from a blank slate. They must work with Congress, and they inherit entitlements, spending, and tax regimes. They also face external circumstances that may be beyond their control, such as recessions and pandemics.
It is hard to blame presidents alone for the debt when the main source of spending growth is not discretionary, but long-established entitlement programs that no president or Congress has been brave enough to tackle: Social Security, Medicare, and Medicaid, which together account for about half of the federal budget today.
Trump did not create—nor has he addressed—our entitlement programs. But many of his policies have contributed to the acceleration of the accumulation of debt. The CBO estimates that the One Big Beautiful Bill Act of 2025 increased projected deficits by $4.7 trillion over 2026–2035. Some of these deficits were expected to be eased by consumers paying Trump's tariffs, but that offset diminished after the Supreme Court struck down many of them.
Reason Foundation, the nonprofit that publishes Reason, synthesizes an array of government financial data in its annual Debtor Nation report. The largest spending category in the federal budget is Social Security, which accounted for 23 percent of net outlays in 2025. Social Security has promised more in benefits than it can finance. The middle fifth of the income distribution will receive about 50 percent more in benefits than they contributed over their lifetimes. This is becoming an impending problem as the worker-to-beneficiary ratio declines, moving from a relatively stable 3.2 to 3.4 from 1974 to 2008 to 2.6 in 2025.
Defense spending was to blame the last time the gross national debt exceeded 100 percent of GDP. America's last record was in 1946, when the country reached a debt-to-GDP ratio of 119 percent due to World War II. In 1945, the military accounted for 90 percent of all federal spending.
Despite America's constant involvement in wars abroad, defense has declined from our largest spending category to just another line item. Military spending exceeded $900 billion in 2025, but the federal budget has grown so much that it now makes up only 13 percent, with veterans' benefits adding another 5 percent.
Decades of deficits have led us to a reality in which interest expense on the debt represents a larger share of net outlays than the military. (For perspective, the Department of Defense is the single largest employer in the country.)
The national debt is unfair to future generations, leveraging the state's coercive power to force the people of the future to pay for services enjoyed by the people of the present. But beyond fairness, a more immediate concern is its costs and sustainability.
Americans have come to treat deficits and rising debt as normal. Unlike previous episodes of extraordinary borrowing, there is no plan to reverse course. Each debt milestone now arrives faster than the last.
The post America Hits a New Debt Record at $40 Trillion and Counting appeared first on Reason Magazine.
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Ruth Wang fled China with her family due to pressure from authorities over her work as an attorney. In a major crackdown in October 2025, officials arrested 18 members of Zion Church, a Christian church not sanctioned by the Chinese government, including founder and pastor Ezra Jin. Wang was part of the legal team representing the church and its detained members, but Chinese authorities ordered her and her colleagues to dissolve their law practice, VDoor Law Firm, and they told the firm's attorneys to stop handling Zion Church cases and resign. Some VDoor attorneys were suspended from practicing law for six months, while the firm's founder, Zhang Kai, lost his law license and was barred from leaving China. Officials contacted Wang while she was on a family trip to Japan and asked to meet with her when she returned; instead, she went to Taiwan, where she is seeking to resettle her family in another country, like the U.S. or Canada.
The post Brickbat: No Right to an Attorney appeared first on Reason Magazine.
]]>The fallout began in late April 2022, when Politico notified the Court that it had a copy of the draft and intended to publish it. The justices were gathered in the Court's private dining room for one of their regular lunches when the chief justice told them of the leak. By tradition, the justices have lunch together when they're in the building for arguments or conference, sometimes a few days a week. It's a chance for them to talk about anything other than the cases. That's the one rule.
Hearing during a collegial lunch that a draft opinion had leaked for the first time in Court history was difficult for the justices to process. Alito said he was "stunned."
"It was quite a shock," Alito said. "But within a relatively short period of time, the thought occurred to me, and I think to the others in the majority, that this would endanger us. And it made us targets for assassination."
Security, Alito said, ramped up immediately. A month later, in June of 2022, the world would know why. In the middle of the night, as Justice Brett Kavanaugh and his family slept in their Maryland home, a would-be assassin approached their backyard with a bag containing a gun and rounds of ammunition, a knife and nail punch, duct tape, zip ties, a crowbar and other burglary tools, including special shoes to silence his footsteps.
He was intent on killing justices before the Court released its Dobbs decision. With its narrow 5-4 majority, it would only take one justice. He said on private messaging boards he aimed to kill at least three of the conservatives and, as prosecutors later put it, "single-handedly and irrevocably to alter an entire branch of the United States government."
At the last minute, the man spoke to his sister on his cell phone, and she managed to talk him out of it. He was arrested and later convicted for the attempted assassination of Kavanaugh.
"His goal was to change the decision in the case. So that was quite predictable," Alito said. "And whoever leaked it knew or had good reason to know that that would be the consequence of leaking it. And Politico knew, or should've known, that that would be the consequence of their decision to publish it."
Politico has explained its decision to publish the leaked draft as an "unprecedented view into the justices' deliberations" that is "plainly news of great public interest."
The leaker remains unknown. After Politico published its piece in early May, one theory was that a conservative had leaked the draft to keep the five votes in place, in case any of the justices in the majority were wavering. Alito was almost incredulous at the suggestion.
"It's implausible that any of us would have done that for exactly the reason I've mentioned, because this pinned a target on our backs," Alito said. "And it was very fortunate that that planned attack (on Kavanaugh) was not successful."
There were two general theories of who might have leaked the opinion. One theory is the leak came from the right as a means to lock in the votes and prevent a flip. As second theory is the leak came from the left as a means to put pressure on the majority to flip the vote, or worse, plant the seeds for deligitimizing the Court.
Alito says quite clearly that whoever leaked should have been aware that the publication would put a bullseye on the back of the five-member majority. No conservative would plausibly take that action. Alito firmly rejects the first theory. The second theory remains viable.
Crawford also confirms that Justice Thomas assigned the majority opinion.
With Roberts in dissent, urging the five not to overturn Roe, Thomas was the senior justice in the majority. He assigned Alito the opinion.
This was the speculation, and reinforces that from the get-go, Chief Justice Roberts did not support overruling Roe.
The post Alito Hints That The <i>Dobbs</i> Leaker Knew A Member of the Majority Would Be Subject To Assassination appeared first on Reason Magazine.
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