Today, Lawfare published my article "Slavery and Birthright Citizenship." Here is an excerpt:

Trump v. Barbara, the birthright citizenship case, is currently before the Supreme Court. At the heart of the case is a Jan. 20, 2025 executive order that sought to deny birthright citizenship to children born in the U.S. whose parents are in the country either illegally or on temporary visas. The case has produced a vast array of amicus briefs as well as the briefs of the parties. But one key issue has not received the attention it deserves.

Accepting the government's position would undermine the central purpose of the Citizenship Clause of the Fourteenth Amendment. For that reason alone, the Trump Administration should lose the case, especially from the standpoint of originalism.

Virtually all informed observers agree that the main purpose of the Citizenship Clause was to grant citizenship to newly freed slaves and their descendants, reversing the holding of the Supreme Court's infamous 1857 Dred Scott decision, which ruled that Black people could never be citizens of the United States. Indeed, the Trump administration's Supreme Court brief in Trump v. Barbara says exactly that: "The Clause was adopted to confer citizenship on the newly freed slaves and their children." But all of the administration's arguments for denying birthright citizenship to children of undocumented immigrants and non-citizens present in the U.S. on temporary visas would, if applied consistently, also have denied citizenship to numerous freed slaves and children thereof.

This reality puts the government's arguments at odds with the original meaning of the Citizenship Clause. Since contemporaries almost universally understood that Clause as granting citizenship to freed slaves, their children, and other Black people born in the United States, any interpretation of  "subject to the jurisdiction" that requires denying birthright citizenship to large numbers of slaves and children thereof must be rejected. That is particularly true from an originalist standpoint, which requires adherence to the understanding of the words prevalent at the time of ratification.

The rest of the article goes through the various standard arguments advanced by the administration and its supporters, and explains how all of them share the same flaw.

The article is in part based on my earlier Volokh Conspiracy post on the same topic.

The post My New Lawfare Article on "Slavery and Birthright Citizenship" appeared first on Reason.com.

President Donald Trump has called on foreign countries that rely on oil from the Middle East to help reopen the strategically vital Strait of Hormuz. Iranian forces have closed the strait to most ship travel, which has fallen by about 90 percent in recent days. Due to the threat of Iranian attacks, international shipping companies have ceased using the all-important passage, causing global oil prices to spike. Iranian authorities have declared that the strait is closed only to enemies of the regime.

In a Truth Social post on Saturday, Trump asked China, France, Japan, South Korea, and the U.K. to deploy ships to reopen the strait.

"In the meantime, the United States will be bombing the hell out of the shoreline, and continually shooting Iranian Boats and Ships out of the water," wrote Trump. "One way or the other, we will soon get the Hormuz Strait OPEN, SAFE, and FREE!"

China did not specifically respond to this request, according to The New York Times. The French governments indicated it would be unlikely to intervene until the situation in the region was less precarious. Trump spoke with British Prime Minister Keir Starmer about the matter on Sunday, but no concrete plan has emerged from that conversation. In other words, nobody seems particularly inclined to help.

American public opinion regarding the war with Iran is decidedly mixed, and it is likely to atrophy as casualties and costs mount. Higher gas prices will certainly not help the GOP as it heads toward midterms.

Nevertheless, the Trump administration is prepared to continue a major bombing campaign against the Iranian regime. The administration reportedly believes that Mojtaba Khamenei, the new leader of the country, is alive but wounded following the strikes that killed his father, Ayatollah Ali Khamenei.

Conservative commentator Tucker Carlson claims that the CIA is out to get him. In a video posted on X, Carlson said he has learned that the CIA is preparing a criminal referral for the Justice Department on the basis that he is "acting as an agent of a foreign power." Carlson denies that is doing anything of a sort. The feds have not confirmed whether Carlson is the target of such an investigation.

When you discover the CIA has been reading your texts in order to frame you for a crime. pic.twitter.com/XgoluHw8EG

— Tucker Carlson (@TuckerCarlson) March 14, 2026

Carlson, an outspoken opponent of the Trump administration's bombing campaign against Iran, tried and failed to talk Trump out of the war. More broadly, he is a prominent leader of the noninterventionist faction of MAGA, which extracted the (now broken) "no new wars" promise from Trump when he ran for president in 2024.

According to Carlson, the CIA has read his text messages and monitored his conversations with Iranian officials, and on that basis is claiming that he is violating the Foreign Agent Registration ACT (FARA). FARA requires lobbyists who work on behalf of foreign governments to publicly register that they do so. The requirement is selectively enforced: The American Israel Public Affairs Committee (AIPAC) is not registered under FARA, even though the group engages in political activity designed to defeat officials who, for instance, oppose giving military aid to Israel.

Weaponizing FARA against dissenters in the name of cracking down on foreign influence is a serious First Amendment concern. Reason's Matthew Petti has noted the ways such crackdowns can censor legitimate political speech. "Practically, the question is how to separate Americans being ordered or tricked by a foreign government from Americans doing things of their own accord," wrote Petti last year. "Philosophically, the question is whether stamping out 'foreign influence' is possible or desirable in a free society—especially one that is so heavily involved in the rest of the world."

It's hard to say what exactly is happening with Carlson, given that we don't even know for sure whether this CIA inquiry is real. But we should be very worried at the idea of the government reading American citizens' texts, disagreeing with their foreign policy views, and then branding them puppets of foreign adversaries. Washington cannot require public commentators to register themselves: The First Amendment precludes such a thing.

Moreover, it would be a huge double standard if the Israeli government's lobbyists within the U.S. were somehow exempt from declaring themselves as such but opponents of Israeli government lobbyists had to first ask the feds for permission to speak up.

Brian Doherty, an esteemed chronicler of the libertarian political movement who has worked for this magazine for more than three decades, died unexpectedly over the weekend. He was 57.

Doherty will be fondly remembered and sorely missed. I was part of the wave of college students who came upon libertarianism in the '00s, during Ron Paul's rise; Doherty was a vital source of information about the campaign and the broader movement it birthed. His writings helped connect me with the libertarian professional network: the Cato Institute, the Institute for Humane Studies, and Reason. He knew our movement's lore better than anybody else.

Matt Welch and Nick Gillespie have both published reminiscences at Reason about Brian's life and work. This is from Matt's piece:

"Libertarians talk a lot about freedom and responsibility. Brian embodied both," Reason Editor in Chief Katherine Mangu-Ward recalls. "His weird, colorful life—filled with comics and festivals and music and books—was a model of life lived freely and openly. And in his thinking, reporting, and editing, he was one of the most conscientious and responsible people I have ever met. A libertarian hero in every sense."

Spelunking in subcultures both libertarian and whimsical led to a lot of early discoveries that the normies only sussed out later. Doherty profiled New Hampshire's Free State Project way back in 2004, caught Seasteaders on their then-rise in 2009, and started covering Bitcoin in 2013. Though, as he ruefully admitted later, he knew about the groundbreaking crypto currency as early as July 2010 yet somehow neglected to cash in.

"Had I shelled out, say, $2,000 on this innovative, anti-inflationary currency even a lazy six weeks after I was introduced to it," he wrote, "today I would be sitting on 28,571 bitcoins, the equivalent at press time of over $212 million in cash." More like $2 billion now, but who's counting?

After news of his death broke, Doherty's work colleagues filled up a long Slack thread with fond memories of his deep-seated sense of tolerance, his garrulous laugh, his fury at personal technology, his sometimes elliptical prose style. A staffer once made a T-shirt from a typically verbose Dohertian Slack message: "I try not to assume that because crazy people with crazy beliefs believe or used to believe the things I believe for what I think are right and sane reasons, that that is a sign that I am crazy. But it's getting harder and harder I confess."

Last June, I had the pleasure of interviewing Doherty at FreedomFest about his views on libertarianism in the age of Trump. He was sharp and insightful as ever; I remember him sparring with an audience participant who demanded that he commit himself to the Trump agenda. Rest in peace.

Scenes from Washington, D.C.: It's been just warm enough to commence non-winter activities: grilling on the rooftop, jogging by river, and, of course, riding my e-scooter.

QUICK HITS

• One Battle After Another won the Oscar for Best Picture at the Academy Awards last night.
• Paul Ehrlich, author of the false prophecy The Population Bomb, has died.
• Gen Z voters are turning on Trump over the Iran War.
• Meanwhile, Trump is demanding that certain journalists who cast doubt on his war be "brought up on Charges for TREASON."
• Megyn Kelly and Mark Levin have escalated their war of words; the words now include "micropenis."

The post Strait Outta Commission appeared first on Reason.com.

Defendant is a Christian who feels it is his religious duty to share his beliefs with others. Defendant regularly prays, preaches, displays signs, plays religious music, and engages with members of the public at the corner of Elm and Congress Streets in Portland. Defendant's signs and prayers frequently convey messages against medical procedures involving abortion. From 2023 through 2025, Defendant has engaged in this conduct at the same location on a roughly weekly basis, typically for three or four hours at a time. Often, but not always, Defendant loudly plays music through a mobile speaker and/or uses a microphone and speakers to amplify his voice. He is sometimes accompanied by other individuals also seeking to share their personal beliefs….

Lindsey Stevens, the Clime's Health Center Manager, credibly testified that when Defendant uses amplifiers, his voice and/or music can be heard inside the examination and counseling rooms of the Clinic. On occasion, Stevens can hear Defendant's music from her office in the back right corner of the Clinic—one of the farthest locations within the Clinic from Defendant's typical location.

When amplification is used, Defendant's conduct disrupts the provision of patient care at the Clinic. His amplified voice and music make it difficult for patients and care providers, including Stevens, to hear and understand each other. Patients are often distracted by the noise and exhibit physical signs of distress. On occasions when Defendant uses amplifiers, the Clinic moves patients to other rooms when possible. This can cause delays in patients receiving counseling and/or treatment. [The court also recounted police officers' testimony that defendant used sound amplification, and was quite loud. -EV] …

Defendant testified that he does not intend for his preaching to be disruptive of medical services by using an amplifier to make his voice and music heard. Defendant also testified that he does not consider abortion to be a medical service. Defendant further testified that the fact that he could be heard from inside the Clinic was "incidental" to his intent and purpose.

Defendant acknowledged on cross examination that he refused to turn down his volume when repeatedly warned that his volume was disruptive to the Clinic: "Jesus told me to keep preaching." Defendant testified that he frequently hears ambient city sounds which create noises louder than his preaching and music on the streets below the Clinic, such as fire engines and duck boats and, on one occasion, another protest with roughly three hundred people moving down Congress Street. As to his intent, the court does not find Defendant's testimony credible….

Section 4864-B provides that it is a violation of the Maine Civil Rights Act for any person to

intentionally interfere or attempt to intentionally interfere with the exercise or enjoyment by any other person of rights secured by the United States Constitution or the laws of the United States or of rights secured by the Constitution of Maine or laws of the State by …

[d]uring the posted hours of operating after having been ordered by a law enforcement officer to cease such noise, at any time after the order, intentionally making noise that can be heard within a building and with the further intent…

[t]o interfere with the safe and effective delivery of those services within the building.

The court finds that the State has demonstrated by a preponderance of the evidence that Defendant has repeatedly violated section 4684-B(2). On multiple occasions between 2023 and 2025 described in more detail above, Defendant used devices to amplify his speech and music while standing near the corner of Elm and Congress Streets, directly below the second-floor examination and counseling rooms of Planned Parenthood's clinic.

The court finds that Defendant intended for his music and amplified voice to be heard inside patient rooms in the Clinic and that he did so with the further intent to interfere with the safe and effective delivery of services within the Clinic. The court makes this finding based on Defendant's statement in State's Exhibit 7 that "I wouldn't be here doing this if they're not here," and the fact that Defendant repeatedly used amplifiers outside of 443 Congress Street, below examination rooms, after being repeatedly informed that the volume was disrupting the delivery of medical services….

Finally, the court rejects Defendant's argument that section 4584-B is being discriminatorily enforced against only pro-life groups. Each of the other examples of protests and groups referenced by Defendant were mobile or transitory protests which would have generated temporary noise outside the Clinic and which occurred outside of business hours, thereby reasonably not leading to complaints by Planned Parenthood.

No witness offered any testimony regarding any individual or group other than Defendant who made noise that would have interfered with the safe and effective delivery of medical services in the Clinic during business hours. Nor is there evidence that any Portland officer disfavored Defendant's particular message. Officers consistently informed Defendant that the volume was the only concern and that he was free to preach at that location if he did so at a volume that could not be heard inside the Clinic….

The state asked for a preliminary injunction barring defendant from:

1. intentionally making any noise that can be heard within the building at 443 Congress Street in Portland, Maine, or any other Planned Parenthood facility;
2. engaging in any physical obstruction of 443 Congress Street, Portland, Maine or any other Planned Parenthood facility; and
3. knowingly coming within 500 feet of 443 Congress Street, Portland, Maine or any other Planned Parenthood facility.

But the court issued an injunction limited to item (a):

The court concludes that the order requested by the State is overbroad based on the evidence admitted at hearing, which did not demonstrate that Defendant has either obstructed access to the Clinic or engaged in any conduct violative of section 4684-B at any other Planned Parenthood facility. The court also finds that the 500-foot "buffer" requested by the State is not appropriate. The State failed to prove that Defendant's mere proximity to the Clinic caused injury; as Lyndsey Stevens testified, Defendant could not be heard within the Clinic unless he used an amplifier. The court finds that the injunction proposed by the State would overburden Defendant's First Amendment rights.

The court must issue a preliminary injunction tailored to the proven violations of section 4684-B and the significant governmental interest in the effective delivery of medical services. Accordingly, the court enjoins Defendant from using any device to amplify any noise or otherwise making any noise that can be heard within the Clinic. See McCullen v. Coakley (2014) (noting "the First Amendment virtues of targeted injunctions")….

Seems correct to me, given the analysis from Madsen v. Women's Health Center (1994):

In response to high noise levels outside the clinic, the state court restrained the petitioners from "singing, chanting, whistling, shouting, yelling, use of bullhorns, auto horns, sound amplification equipment or other sounds or images observable to or within earshot of the patients inside the [c]linic" during the hours of 7:30 a.m. through noon on Mondays through Saturdays. We must, of course, take account of the place to which the regulations apply in determining whether these restrictions burden more speech than necessary. We have upheld similar noise restrictions in the past, and as we noted in upholding a local noise ordinance around public schools, "the nature of a place, 'the pattern of its normal activities, dictate the kinds of regulations … that are reasonable.'" Grayned v. City of Rockford (1972). Noise control is particularly important around hospitals and medical facilities during surgery and recovery periods, and in evaluating another injunction involving a medical facility, we stated:

"'Hospitals, after all, are not factories or mines or assembly plants. They are hospitals, where human ailments are treated, where patients and relatives alike often are under emotional strain and worry, where pleasing and comforting patients are principal facets of the day's activity, and where the patient and his family… need a restful, uncluttered, relaxing, and helpful atmosphere.'" NLRB v. Baptist Hospital, Inc. (1979).

We hold that the limited noise restrictions imposed by the state court order burden no more speech than necessary to ensure the health and well-being of the patients at the clinic. The First Amendment does not demand that patients at a medical facility undertake Herculean efforts to escape the cacophony of political protests. "If overamplified loudspeakers assault the citizenry, government may turn them down."  That is what the state court did here, and we hold that its action was proper.

 

The post Court Blocks Loud Preaching Outside Abortion Clinic appeared first on Reason.com.

In 1968, when he was a fourteen-year-old student at Westlane Junior High School, teacher Tharrell Davis ("Davis") "took an unusual interest" in Kimberlin. Over the next several months, Davis repeatedly sexually assaulted Kimberlin in Davis's home and elsewhere. The abuse caused Kimberlin physical injuries at the time and has caused many other problems in the decades since.

Another boy named "Tommy" was often present during the assaults and was also assaulted by Davis. Kimberlin offered to have his parents help Tommy get away from Davis. Tommy told Davis about this offer, which led Davis to admit the abuse to Kimberlin's mother and agree not to have further contact with Kimberlin. Kimberlin's mother asked a friend to report Davis to the School District and Indiana State Police; the Complaint does not allege whether those reports were made. The next year, Davis left the School District. "Plaintiff believes that he was quietly forced out of his job because of his sexual abuse of Plaintiff and others."

In December 2023, shortly before her death, Kimberlin's mother told him that Davis had admitted to the sexual assaults. This caused "a flood of repressed memories, nightmares, anxiety, and post traumatic stresses." In June 2024, Kimberlin wrote a letter to [then-Superintendent Nikki Woodson] about the abuse, "demand[ing] accountability and compensation." At the time, Kimberlin did not know Davis's first name, but he told Dr. Woodson that Davis was a science teacher in 1968 at Westlane and had been in the military. Kimberlin "urged [Dr. Woodson] and [the School District] to review its records and conduct their own investigation."

A few weeks later, in July 2024, outside counsel for the School District (and defense counsel in this case), Jonathan Mayes ("Mayes"), responded, stating that the School District "had turned the matter over to law enforcement for investigation, and [the School District] would respond after law enforcement responded. Law enforcement never responded to the School District, so the School District never responded to Kimberlin.

In January 2025, Kimberlin sent another letter to Mayes "stating that there was no reason to wait for any investigation by law enforcement" and reiterating his request for an investigation by the School District. In February 2025, Mayes sent a respond letter. It was curt, insensitive, and dismissive. It avoided confirming or denying that Davis was employed by the School District and stated that the School District would not investigate Kimberlin's reports of abuse. Kimberlin's reply stated, among other things, that Mayes was engaging in "a coverup" of Davis's misconduct. Kimberlin then found his Westlane yearbooks, which contained Davis's photo and full name and confirmed that Davis was a teacher at Westlane in 1968. Kimberlin sent a photo of the relevant yearbook pages, along with another letter, to Mayes.

Kimberlin sued, alleging violations of Title IX and the Fourteenth Amendment, claiming defendants violated his rights "by failing to investigate his 2024 and 2025 reports of sexual assault." The court dismissed Kimberlin's Title IX claims:

Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." … [W]hen Kimberlin made [his 2024 and 2025] reports and requested those investigations, he was not participating in or attempting to participate in any School programs. The School District's actions or inactions therefore could not have interfered with Kimberlin's participation in those programs.

In his response, Kimberlin focuses on the fact that he was participating in School programs at the time of the assault, and argues that the statute of limitations does not bar his Title IX claims. Kimberlin relies on Snyder-Hill v. Ohio State University (6th Cir. 2022), in which the Sixth Circuit held that former students' Title IX claims were not time-barred despite being brought several years after their sexual abuse by university medical staff under the guise of performing medical examinations. Snyder-Hill is not applicable here.

In Snyder-Hill, the plaintiffs sued their alma mater for failing to prevent ongoing abuse by staff, despite having knowledge of the abuse at the time it was happening. The Sixth Circuit explained that even though the abuse happened years before the lawsuit, the plaintiffs did not know that the staff member's conduct was abuse or that the university had knowledge of the abuse until the abuse allegations were made public many years later. The court therefore applied the "discovery rule" in finding that plaintiffs' Title IX claims did not accrue until the plaintiffs first learned about the university's knowledge and failure to act on that knowledge.

In contrast, Kimberlin does not allege that the School District knew about or failed to investigate Davis's abuse while Kimberlin was a student. Instead, Kimberlin expressly claims that the School District violated Title IX by failing to investigate in 2024 and 2025, when Kimberlin was no longer a student….

And it dismissed his Fourteenth Amendment claims:

Defendants argue these claims must be dismissed against the School District and School Board for several reasons, including that Kimberlin has no cognizable constitutional right to an investigation into Davis's prior conduct. The Court again agrees with Defendants…. Cf. Bolden v. City of Chi. (N.D. Ill. 2017) (dismissing due process claim based on police officers' failure to investigate plaintiff's alibi; "[T]he Seventh Circuit … has not held that a failure [by police] to investigate, in and of itself, constitutes a due process violation."); McCray v. Alejandro R. (S.D. Ind. 2021) ("As we previously explained, the Defendants' inaction, that is, their failure to investigate, is not enough to establish their liability for any constitutional violations.")….

Woodson, as I understand it, made a limited appearance to dismiss on grounds of inadequate service, and hasn't yet moved to dismiss on substantive grounds. The court rejected her motion, but I expect she will then move to dismiss for the same reasons as given by the School District and School Board, and will likewise prevail.

Jonathan Lamont Mayes (Bose McKinney & Evans, LLP) represents defendants.

The post Speedway Bomber Brett Kimberlin's Latest Lawsuit appeared first on Reason.com.

Jesus, how do you write an obit of someone you hired? It is with a heavy heart but many, many fond memories and intense gratitude that I write about my colleague Brian Doherty, found dead unexpectedly on Friday at the age of 57. I joined Reason in the fall of 1993. He was hired later in 1994 and then left the staff for a while around the end of the decade. When I became editor in chief of the magazine and website in 2000, he was the first person I called. Come back, I said, Reason needs you.

What I liked most about Brian was his abiding interest in things happening on the margins of American culture, politics, and thought, and his deep appreciation for the prodigious bounty that markets deliver reliably and without moralizing. I remember attending some sort of conservative gathering in Los Angeles with him in the mid-1990s. The speaker talked endlessly and in glowing terms about the ruthless efficiency of capitalism, how it rooted out unproductive workers and businesses with impunity and "punished them with the market!" On the way out of the talk, as valets pulled up our old, beat-up cars (mine a Toyota Tercel with 200,000 miles on it and a padlock on the trunk, his a decrepit Ford LTD station wagon he'd bought from Jacob Sullum), Brian mentioned to me that what he really liked about capitalism wasn't the way it punished anyone but just how many free riders it enabled. He would marvel often at just how much stuff was available to so many of us, usually for historically lower and lower levels of actual work.

He delighted in the contradictions of right-wingers who were secretly socialist and lefties who were secretly capitalist. As he wrote in "Rage On: The Strange Politics of Millionaire Rock Stars" (2000):

Comrades in the struggle to overthrow "late capitalism" include Chumbawamba, a collective of British anarchists who hit major pop stardom with their rousing 1997 sing-along drinking anthem "Tubthumping." Chumba (as their fans call the group) declares on its Web site that it wants "to destroy the moral code that says you can only have what you can afford to pay for." And it wants a social order where nothing happens without everyone—everyone!—agreeing to it. Folk-rocker Ani DiFranco is best known for refusing to be part of a "corporate" machine, saying that the record business is "dehumanizing and exploitative, not much different from any other big business." Thus, refusing to work on Maggie's Farm no more, she operates her own corporate machine, Righteous Babe Records (and pockets far more per record as a result).

Then there's Patti Smith, the over-the-hill punk poetess who once wowed Madison Square Garden audiences with songs about adolescent alienation and all-night sex. Smith includes a 10-minute-plus tribute to Ho Chi Minh and a snappy pop tune against the World Trade Organization on her latest album, Gung Ho.

The point wasn't (simply) to mock hypocrisy, it was to underscore how a world of free minds and free markets pretty much made everybody better off, even those who were sworn to its destruction. Nobody loved the great god of Rock Music more than Brian, even as he realized some of his favorite performers would be among the first to call for people like him to lined up against a wall when the revolution finally came.

Despite having been a professional libertarian (before Reason, he worked at the Cato Institute), he spent much of his time hanging with creative types like the folks at the Cacophony Society, for whom anything resembling partisan politics was just not that interesting. It's not an accident that he wrote one of first serious book-length treatments of Burning Man, which he started attending soon after moving to California in 1994. He rightly saw Burning Man as a delirious and beautiful experiment in living that could have sprung almost fully formed from the brow of Robert Nozick, who philosophized about a "utopia of utopias."

Except, of course, that utopias are never fully formed; they are constantly works in progress. Published in 2004, This Is Burning Man began life as a Reason cover story commissioned by my predecessor, Virginia Postrel. In "Burning Man Grows Up," Brian explained that as the annual festival got bigger and bigger, it had to develop the sort of rules and regulations and restrictions that many of its participants hated in the 9-to-5 world. And it had to do so while simultaneously dealing with more and more hassles from local, state, and federal governments. Some attendees worried that growth might come at the expense of the radical freedom of Burning Man's early days, turning the ultimate escape from everyday working life into a temporary borough of San Francisco's burgeoning tech sector. Silicon Valley was going through its own transformation, from a conscious repudiation of IBM and Xerox and older, more buttoned-down workplaces into a new form of corporate hierarchy and conformity.

Brian's taste for the ragged and extreme edges of the known universe also shaped his interest in the libertarian movement, including its odd and dark corners. It powered his history of the movement, Radicals for Capitalism, and his coverage of the Ron Paul Revolution too. For my tastes, he was too forgiving at times of the racists and reactionaries adjacent to the libertarian world, but he felt his job was to catalog and map that whole part of the world, not to judge its inhabitants. Alone among chroniclers of Ron Paul's amazingly successful run in the 2008 election cycle, Brian distilled what made the former Texas congressman so popular, especially among newcomers to politics:

One of his biggest applause lines, to my astonishment, involves getting rid of the Federal Reserve. Kids have gathered, not just from Iowa but from Wisconsin and Nebraska, in classic hop-in-the-van college road trips, to hear a 72-year-old gynecologist talk about monetary policy.

He wraps up the speech with three things he doesn't want to do that sum up the Ron Paul message. First: "I don't want to run your life. We all have different values. I wouldn't know how to do it, I don't have the authority under the Constitution, and I don't have the moral right." Second: "I don't want to run the economy. People run the economy in a free society." And third: "I don't want to run the world….We don't need to be imposing ourselves around the world."

It seemed as if such a libertarian sensibility was about to sweep the Republican Party, if not the country at large, and it remains dizzying that just six years later, Donald Trump not only won the GOP nomination but the White House promising almost the exact opposite of what Ron Paul used to pack college auditoriums.

Trump's win in 2016, then Biden's in 2020, then Trump's return weighed heavily on Brian, as did the rise of populism across the political spectrum. One of the ways he dealt with it was by writing what I would argue is his most fun book, Dirty Pictures, a history of the underground comics world that yielded characters such as Robert Crumb, Trina Robbins, and Art Spiegelman. The subtitle, which he complained was too long, was a litany of various types of contributors to that industry: How an Underground Network of Nerds, Feminists, Misfits, Geniuses, Bikers, Potheads, Printers, Intellectuals, and Art School Rebels Revolutionized Art and Invented Comix. It is too long, yes, but it also got to the sort of people around whom Brian was most comfortable. That is, people busy making the sort of crazy world in which they wanted to live, whether they are Burners, alt-culture creators, crypto entrepreneurs, or goldbugs who want to smash the Federal Reserve.

The last time I saw Brian in the flesh was last June, in the Southern California desert where he ended up buying a house. He had developed a number of health problems over the years, his once-black hair had turned mostly gray, and he walked with a cane. FreedomFest was in Palm Springs, and a friend bought some tickets for a place nearby called The Integratron, which kind of looks like a planetarium—a bizarre, beautiful, and totally random structure in the middle of nowhere. Built in the late 1950s by a guy named George Van Tassel, who claimed to have been contacted by visitors from Venus who gave him detailed instructions, the structure's purpose is not fully understood but it's now a spot where sound baths and yoga classes are held. To get to the space for the sound bath, we had to climb a steep ladder that presented some difficulties for Brian. But once we made it up, we stretched out on our backs in the large wood-paneled dome room and looked up at the sky through a round skylight.

The sound bath started, with weird ohms and ahs echoing all around us, calling out to the Venusians floating up there far above the 100-degree heat of the desert. At one point, I peeked over at Brian, whose eyes were closed. He had a half-smile on his face and he let out a long, slow breath, a sigh that somehow became a laugh at some private joke.

He was at home at the Integratron and I hope his last sigh ended in a laugh at the absurdity of the way his life ended. And I hope he is at home somewhere in the universe, knowing that his words and life will reverberate for a long time to come among all of us lucky enough to have known him and read his work.

The post Remembering Brian Doherty, Chronicler of and Participant in Wild and Wonderful Subcultures appeared first on Reason.com.

My son spent last week training in defensive pistol use at Gunsite Academy, in Arizona. The scheduling couldn't have been timelier given the double terrorist attacks on Thursday. Both incidents were stopped by people at the scene who were willing and able to end the threat without waiting for police to arrive.

It's not something most of us want to think about. But if somebody decides to take out their grievances on innocents, any of us could become default defensive details for ourselves and the people around us.

Synagogue Guards 'Engage in a Gunfight' With Attacker

The attack on Temple Israel in West Bloomfield, Michigan, is an especially disturbing case since more than 100 children were attending school at the facility. The terrorist, a Lebanese immigrant named Ayman Ghazali, drove his incendiaries-laden truck into the synagogue and down the hallway where he was confronted by security.

"At approximately 12:20, Ghazali's vehicle gets jammed between hallway walls and he begins firing through the windshield of his vehicle," according to FBI Special Agent Jennifer Runyan, who described events during a press conference. "Ghazali and the first security officer engage in a gunfight through the rear window of Ghazali's vehicle. And at this point, Ghazali is unable to extract himself due to the vehicle being jammed in the hallway. At approximately 12:22 p.m., a second security officer engages Ghazali in a gunfight from the front of the vehicle. And soon thereafter, Ghazali's vehicle, his engine compartment catches on fire."

Under fire from defending synagogue guards, stuck in a burning truck, and undoubtedly aware he'd loaded the bed of his vehicle with commercial fireworks and gasoline, Ghazali ended the incident by shooting himself in the head.

Besides light injuries to the synagogue's director of security, Danny Phillips, and fire damage, Temple Israel got off relatively easily for the target of a terrorist attack. The same can't be said of Old Dominion University in Norfolk, Virginia, where U.S. Army Lt. Col. Brandon A. Shah was killed by an attacker while teaching a Reserve Officers Training Corps (ROTC) class. Two others were sent to the hospital with wounds. Fortunately, those on the scene prevented the situation from becoming worse.

A Terrorist Came Calling and Students 'Rendered Him No Longer Alive'

"There were students that were in that room that subdued him and rendered him no longer alive," FBI Special Agent Dominique Evans responded to a question about the incident. "I don't know how else to say it, but they basically were able to terminate the threat."

According to some reports, one ROTC student stabbed to death terrorist Mohamed Bailor Jalloh, presumably with a pocketknife, though pens and pencils will do in a pinch. Apparently, though it's not the recommended course of action, you can prevail with a knife in a gun fight.

Like synagogues across the United States, Temple Israel was prepared for an attack amidst a rising tide of antisemitism. Its staff conducted a training session with the FBI just weeks prior to the attack. The ROTC students probably were less worried about being targeted, but when targeted anyway, their mindset and preparedness were up to the challenge.

A Wave of Political Violence

Both Ghazali and Jalloh appear to have been Islamists. Ghazali's brother was reportedly a Hezbollah commander killed by an Israeli airstrike, so terrorism was something of a family trade. Jalloh was released from prison in December 2024 after serving time for attempting to provide material support to ISIS. He yelled "Allahu Akbar" as he launched the Old Dominion attack.

While violent crime overall has resumed its decades-long decline, political violence of various flavors is up across the country. On Friday, the Justice Department announced nine convictions in the prosecutions of Antifa members who shot up an ICE center last summer and wounded a police officer. Conservative activist Charlie Kirk was assassinated in September. Minnesota state Rep. Melissa Hortman (D–Brooklyn Park) and her husband, Mark, were murdered in an attack in which state Sen. John Hoffman (D–Champlin) and his wife, Yvette, were wounded. Luigi Mangione is currently being tried for, allegedly, the ideologically motivated murder of UnitedHealthcare CEO Brian Thompson. Short of lethal consequences, a large number of mostly conservative figures have been targeted for harassment and swatting attacks. That's a very incomplete list of this country's ongoing problems with political violence.

Which is to say, it's a good time to take your own safety seriously. If something happens, police will no doubt show up, as they did in West Bloomfield and Norfolk, to investigate the crime. But dealing with the immediate threat is left to those who are there when it occurs.

'Armed Citizens to Defend and Protect Them'

"If my family were being attacked by bloodthirsty terrorists like those in Kenya or Paris, then I would want armed citizens to defend and protect them," former Interpol Secretary General Ron Noble, an American who previously worked in the U.S. Treasury and Justice Departments, concluded in 2016. He raised similar concerns during his term in office following the 2013 Westgate mall attack in Nairobi.

Unfortunately, not all authorities are open to people possessing the means to defend themselves. Old Dominion University bans weapons, including knives with blades over three inches long. That policy didn't stop Jalloh, who also illegally purchased the gun he used from another criminal. Despite the abject failure of policy and law, Norfolk Commonwealth's Attorney Ramin Fatehi called on lawmakers to pass tighter gun restrictions. He must be furious that ROTC students found the means to resist a terrorist.

But the students at Old Dominion University did successfully halt the attack on their class, as did the guards at Temple Israel. Likewise, parishioners and staff at Crosspointe Community Church in Wayne, Michigan, engaged and killed an armed attacker last June. And Elisjsha Dicken shot and killed a would-be mass murderer at Indiana's Greenwood Park Mall in 2022.

Hopefully, nobody else will ever again have to shoulder such responsibilities. But hope isn't a plan. Being ready and able to take on unpleasant situations should they arise offers a better chance for good outcomes.

My son is now better prepared for threats after his defensive pistol class, which follows over a decade of martial arts training. My wife and I graduated last year from that same pistol class, practice frequently, and we have another session scheduled through her synagogue with a private trainer.

They might mean us well, like the officers who responded to Temple Israel and Old Dominion University, or they could resent empowered members of the public, like the Norfolk Commonwealth's Attorney, but government officials can't always be in place to defend us when malicious people attack. Whether we want it or not, we all must shoulder the responsibility for protecting ourselves and our loved ones.

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Regulations have made it harder and more expensive to deploy nuclear power in the United States. But in January, the Nuclear Regulatory Commission (NRC) rolled back more than a dozen regulations, including the "aircraft impact assessment." The rule, which was finalized in 2009, required developers of new power plants to demonstrate to the NRC that their reactor core would remain intact in the event of an improbable 9/11-style plane crash.

The rule did nothing to make nuclear power plants safer, since these facilities are already engineered and regulated to withstand natural disasters such as earthquakes, large fires, floods, and hurricanes. The NRC itself acknowledged this at the time, saying that "compliance" with the rule "is not needed for adequate protection to public health and safety or common defense and security." Nor did it do anything to improve disaster preparedness; the agency admitted when it finalized the rule that it's up to the federal government, not nuclear power plant operators, to "prevent the impact of large commercial aircraft."

The rule was successful, though, in making it harder to build nuclear energy projects.

In late 2008, Georgia Power asked state regulators to approve an expansion project at the Vogtle power plant involving two advanced nuclear reactors. After six months of review, regulators signed off on the project. Despite the state's approval and the fact that the reactor design was greenlit by federal regulators in 2006, the NRC decided not to permit the project until the reactor complied with the agency's aircraft assessment rule.

It took three new design iterations, numerous changes to the reactor's structure, and over two years of work before the NRC allowed the project to move forward, wrote Rod Adams, managing partner at venture capital firm Nucleation Capital, in a 2023 article in Atomic Insights. It's difficult, if not impossible, to put an exact price tag on these delays, Adams says. But it is fair to say that the aircraft impact rule played a major role in delaying the buildout, and thus increasing the cost, of Vogtle's two new nuclear reactors, which ran more than $15 billion over budget and were completed seven years behind schedule.

Like so many other regulations for nuclear power, the aircraft impact rule was more of a P.R. gimmick designed to ease concern over the energy source than it was a sound rule. Other edicts are still in place that make it unnecessarily hard to build nuclear power. But for now, we can celebrate that the government finally acknowledged that the cost of this regulation (less clean energy) far outweighed its benefits (none).

The post Nuclear Power Regulators Scrap Rule Saying New Reactors Must Withstand 9/11-Style Plane Crashes appeared first on Reason.com.

City officials in Bakersfield, California, agreed to a record $22 million settlement after a police officer caused a deadly crash in 2023. Ricardo Robles, an officer at the time, drove at least 80 miles per hour through a stop sign without turning on his sirens and crashed into another car, killing driver Mario Lares and seriously injuring passenger Ana Hernandez. Lares' family and Hernandez sued the city, arguing that the officer ignored safety rules while on duty. In 2024, Robles pleaded no contest to vehicular manslaughter, but the court sentenced him to just one day in jail and two years of probation, along with community service and restitution.

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The Fog of War and War Reporting

On Friday the Wall Street Journal reported that, according to U.S. officials, an Iranian missile struck and damaged five Air Force refueling planes that were on the ground at an airbase in Saudi Arabia. Yesterday Trump claimed on Truth Social that the Wall Street Journal's reporting was inaccurate, as "Four of the five [planes] had virtually no damage" and "One had slightly more damage." And then in language that somehow no longer seems shocking, he said that the reporters involved "are truly sick and demented people."

Less than three hours later, Carr posted Trump's statement on Twitter/X and said in response:

Broadcasters that are running hoaxes and news distortions - also known as the fake news - have a chance now to correct course before their license renewals come up. The law is clear. Broadcasters must operate in the public interest, and they will lose their licenses if they do not.

Note that the factual differences between the WSJ and Trump are fairly small (all agree that the planes were hit) and that the WSJ's reporting relied on U.S. officials. More importantly, it is difficult for anyone (soldiers, journalists, and Presidents) to determine the facts in any war. So if a journalist cannot safely publish unless he/she is certain that every significant fact is absolutely correct, there will be precious little war reporting. I always assumed that decisionmakers wouldn't try to so restrict war reporting, but Trump and Carr indicate otherwise.

Newspapers, Broadcasters, and Threats

As to Carr's invocation of news distortions and broadcast hoaxes: As I discuss in a forthcoming article I just posted (and in less detail about news distortion in this post), it would be an unprecedented extension of the news distortion policy and the broadcast hoax rule to apply either of them to mistaken war reporting. With the exception of a couple of bursts of indecency regulation, the FCC narrowly interpreted its public interest authority from the Reagan Administration through the first Trump Administration and the Biden Administration, but Carr has rejected that longstanding consensus.

Carr's post illustrates the vast difference between the Supreme Court's treatment of broadcasting and all other media. Trump focused only on newspapers, but the First Amendment would prohibit government action against them for their reporting. Carr pivoted to broadcasters, who have much less protection under Red Lion Broadcasting Co. v. FCC and FCC v. Pacifica Foundation.

That's not to say that those cases would protect Carr's threats. Red Lion applies to speech that the government deems valuable, and Pacifica focused on indecency, so there is a reasonable argument that neither would give the government any greater ability to publish false broadcast speech than false speech on any other medium. And I think the current Court would probably overrule both cases if the issue were squarely presented (flowing from the FCC's longstanding restraint, the Court hasn't had occasion to reconsider either case).

When the Reagan FCC repealed the Fairness Doctrine, it articulated its preferred First Amendment approach, stating:

We believe that the role of the electronic press in our society is the same as that of the printed press. Both are sources of information and viewpoint. Accordingly, the reasons for proscribing government intrusion into the editorial discretion of print journalists provide the same basis for proscribing such interference into the editorial discretion of broadcast journalists. The First Amendment was adopted to protect the people not from journalists, but from government. It gives the people the right to receive ideas that are unfettered by government interference. We fail to see how that right changes when individuals choose to receive ideas from the electronic media instead of the print media. There is no doubt that the electronic media is powerful and that broadcasters can abuse their freedom of speech. But the framers of the Constitution believed that the potential for abuse of private freedoms posed far less a threat to democracy than the potential for abuse by a government given the power to control the press. We concur. We therefore believe that full First Amendment protections against content regulation should apply equally to the electronic and the printed press.

Carr's threats make that language seem quaint.

In some ways, Carr has done us all a service by being clear about his desire to cow broadcasters. To quote Justice Scalia from a different context, issues frequently "come before the Court clad, so to speak, in sheep's clothing…. But this wolf comes as a wolf."

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We deploy a disciplined set of legal methodologies to challenge executive, legislative, and judicial decisions that prioritize desired outcomes over fidelity to the Constitution and consistent rule-of-law process. These methods include textualism and originalism—anchored in the original public meaning of the Constitution's language as understood, where necessary, in light of history, tradition, and the broader constitutional structure established by such text.

Our approach aims to be scrupulously neutral and to resonate with jurists across the ideological spectrum. These methodologies carry no inherent political bias when faithfully applied, and they tend to produce a stabilizing effect on legal interpretation—applying the same principles regardless of which parties control the political branches.

Its first filing is an amicus brief in the birthright citizenship case; the Introduction:

The Citizenship Clause defines as citizens "[a]ll persons born * * * in the United States, and subject to the jurisdiction thereof." U.S. Const. amend. XIV, §1, cl. 1. For purposes of this case, which involves persons "born in the United States," only the meaning of the second qualification, "subject to the jurisdiction thereof," is at issue. Fortunately, that phrase and its component parts involve simple, well-known language that, in whole and in parts, had easily understood meaning. Applying the neutral principles of relying on text, ordinary meaning, and contemporaneous usage yields a straightforward answer: at a minimum, all persons physically present in the United States at birth are "subject to the jurisdiction of" the United States unless the United States has previously ceded such jurisdiction (with all the consequences thereof) by treaty, statute, or the like.

Both before, during, and since the 1860s, "jurisdiction" overwhelmingly referred to the lawful authority of a government's courts and laws over persons and things within its reach, whether through physical presence or other contacts. To be "subject to" such authority or laws meant (and continues to mean) that those courts could lawfully attach you as a party and pass judgement over you in criminal or civil proceedings. Presence within the territorial domain of a court or other governmental entity was almost always sufficient for a person to be subject to the jurisdiction of such entity (though it was not always necessary).

Under those settled public meanings, anyone physically present in the United States who is amenable to American legal process and bound by American law is "subject to the jurisdiction" of the United States. That covers almost everyone born here (and hence physically present at birth), including children of temporary visitors and unlawful entrants. The only exception—and hence the need for the further qualification of jurisdiction—is persons falling within narrow, well-recognized categories such as diplomats and their families given immunity via positive law placing them outside domestic legal authority.

The President's contrary reading, Pet.Br.18, rests on selectively adding to the Fourteenth Amendment's text an unwritten phrase—"not subject to any foreign power" to exclude persons otherwise and indisputably within the power and authority of the nation's laws and courts. But the historical record does not support such editorial license. In the decades leading up to 1868, Congress, treaty-makers, and courts used "subject to the jurisdiction" to describe, at minimum, territorial, legal authority—often in contexts that explicitly contemplate dual or overlapping jurisdiction based on both territorial and non-territorial grounds for authority over persons. That territorial presence conferred jurisdiction of persons without negating non-territorial grounds for the authority of others negates the suggestion of an implied requirement of exclusive U.S. jurisdiction. Adding the President's narrowing gloss to the more expansive words actually chosen would make scores of period sources nonsensical. The only plausible inference from that history is the obvious and consistent one: the text meant what it says and encompassed all persons over whom the United States could exercise lawful power and authority—those "subject to" United States law and tribunals. The relevant history and the text of the Constitution does not require or permit an elastic inquiry into complementary or overlapping jurisdiction or the supposed political loyalty (of the parents, no less, rather than of the newborn that is the object of the Fourteenth Amendment's definition). It defines as citizens all those who are physically present in the United States at birth and not otherwise exempt or immune from the power and authority of U.S. law and tribunals. U.S. Const. amend. XIV, §1, cl. 1. That simple and original public meaning of the Fourteenth Amendment cannot be narrowed by Executive Order.

Finally, the President's "allegiance" theory, Pet.Br.14-15, is not only linguistically unmoored, it is in deep tension with our legal tradition. From the Founding forward, American courts have exercised civil and criminal jurisdiction over aliens and others whose "primary allegiance" was not to the United States. And the government itself prosecutes unlawful aliens every day on the premise that they are fully subject to our laws and courts. That reality underscores the core point: jurisdiction is about lawful authority and power of the governmental entity in question over persons within its territory or reach, not the professed, implied, or even heartfelt loyalty of the object or target of that authority and power. Where persons were deemed to be beyond the reach of U.S. jurisdiction despite being physically present here, it was because of some statute, treaty, or accepted common law practice that exempted or immunized such persons—diplomats, foreign nationals protected by specific treaties, captured enemy combatants—from U.S. laws and tribunals, not merely because they were citizens of foreign nations. Because the President's Order conflicts with the Constitution's text as originally understood—and with the stable, administrable line that "subject to the jurisdiction" historically supplied—the Court should affirm.

The brief is filed by Jaffe, together with our Schaerr Jaffe colleagues James A. Heilpern and Hannah C. Smith.

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Christopher Buck is fermenting a vaccine in his kitchen. You can too.

Specifically, Buck brews and quaffs a hazy beer that induces immunity against the BK virus, also known as human polyomavirus. Buck argues that you have the right to home-brew vaccines as a way to get around the Food and Drug Administration's (FDA) yearslong vaccine approval process.

Buck joins the pantheon of pioneering
vaccine self-experimenters. Among them are French physician and Nobel Prize winner Charles Jules Henri Nicolle, who used crushed lice to inoculate himself against typhus; Jonas Salk, who injected himself with his own polio vaccine; and Albert Sabin, who ingested his oral polio vaccine. In 2020, at the beginning of the COVID-19 pandemic, a group of researchers associated with Harvard launched the Rapid Deployment Vaccine Collaborative. They developed and self-administered a do-it-yourself nasal vaccine months before commercial vaccines against the coronavirus became available. They made their DIY recipe for the COVID-19 vaccine available to anyone.

Buck's day job is as a researcher at the National Cancer Institute, where he works to prevent organ transplant rejection associated with polyomavirus infections. He is credited with discovering four of the 13 polyomaviruses known to infect humans.

Infection with human polyomavirus 1 is nearly ubiquitous, with about 90 percent of people expressing antibodies against the virus by age 10. Although the prefix polyoma literally means "many tumors," infection is largely harmless in people with healthy immune systems. However, in people with organ transplants whose immune systems have been suppressed to prevent rejection, the virus often reactivates and causes inflammation that leads to organ failure. In this case, Buck's vaccine functions as a model for possibly developing future edible vaccines.

Buck engineered brewer's yeast to manufacture the protein that encapsulates the virus. The body's immune system detects the foreign protein and creates antibodies against it. He mixed his yeast with a Flash Hefeweizen (wheat beer) kit in a fermenter along with hop tea made by steeping Saphir hop pellets.

For four days, Buck drank one to two pints of the beer, followed by two five-day booster flights over the following months. He conducted regular blood tests and reported that drinking the homemade beer did not cause any discernible adverse effects. He also noted: "It was one of the best homebrews I ever made."

Keeping firmly in mind that this is an experiment with a single subject, Buck reports that his immune system produced antibodies against several strains of the BK polyomavirus. He observes that his "results open the door to the production and rapid testing of inexpensive vaccines that can immediately be delivered in the form of ordinary commercial food products."

Since foods made using his yeast are not marketed as therapies, Buck says they would not be subject to the FDA regulation for vaccines. The ingredients in his beer are already in the food supply, and according to Buck they meet the FDA definition of "generally regarded as safe" for human consumption. To emphasize that he is making and drinking his vaccine beer as a private citizen and not in his professional capacity, Buck established the Gusteau Research Corporation, a nonprofit of which he is the sole employee. His brother founded Remy LLC to sell food-grade engineered yeast products. Both names were inspired by the film Ratatouille, in which chef Auguste Gusteau's motto is "Anyone can cook."

Vaccines have been among the most important public health interventions in human history, saving an estimated 154 million lives just since 1974. "In the United States, there has been a growing movement to downplay the safety and efficacy of traditional vaccines, and government officials have recently begun implementing policies restricting access," says Buck.

Given this unfortunate state of affairs, Buck argues that "current law supports a path in which food-based vaccine development could be simplified to the point that free market forces, combined with standard scientific scrutiny, could serve as a check-and-balance against regulatory overreach." In addition, he suggests that DIY "food-based vaccines could help put autonomous decision-making authority back in the hands of individual Americans."

Buck is urging his fellow scientists to begin exploring whether his polyomavirus vaccine results can be extended to creating edible vaccines against other viral threats such as bird flu and proliferating COVID-19 variants. He reminds scientists on his website that, in the words of his Pixar paragon, "anyone can cook—but only the fearless can be great."

The post This Cancer Researcher Home-Brewed a Beer That Works as a Vaccine appeared first on Reason.com.

Brian Doherty, a longtime Reason senior editor and the leading historian of the libertarian movement, was found dead Friday morning after a fall the night before in Battery Yates park along the San Francisco Bay. He was 57.

Doherty, who began working at Reason in 1994, was the author of six books, most notably the definitive 2007 study, Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement. Conservative writer Jonah Goldberg called Radicals an "extraordinary accomplishment"; libertarian economist Bryan Caplan dubbed it a "remarkable labor of love."

Doherty's other book-length treatments of libertarian phenomena included Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment (2008), Ron Paul's rEVOLution: The Man and the Movement He Inspired (2012), and Modern Libertarianism: A Brief History of Classical Liberalism in the United States (2025).

"Brian was the historian of the libertarian movement," says Reason Foundation President David Nott. "He lovingly and comprehensively portrayed the colorful characters in the libertarian world."

Born in Brooklyn and raised mostly in Florida, Doherty first caught the libertarian bug at age 12 by gobbling up the Illuminatus! trilogy by Robert Shea and Robert Anton Wilson.

"One of the specific purposes of that work, according to Wilson, was to do to the state what Voltaire did to the church—that is, reduce it to an object of contempt for all thoughtful people," he recalled in 2018. "I wound up mail ordering a copy of the Principia Discordia, the founding religious document of the Discordian Church discussed in Illuminatus! I tracked down this volume in the rich, fascinating, and frightening catalog of the bookseller Loompanics. Afterward I delved deeper into its offerings of forbidden or hated ideas, eventually ordering a copy of Henry Hazlitt's Economics in One Lesson. That book's version of economics matched the ethical conclusion that felt undeniable to me after reading Illuminatus!: that shaping the human social order primarily by granting one set of people working under an institutional cover the poorly restricted right to rob, assault, and kill others at their will seemed like a bad idea."

Hazlitt led to Ludwig von Mises, F.A. Hayek, and above all Murray Rothbard, the latter of whom, fittingly, was the subject of Doherty's last piece published before his death, "100 Years of Murray Rothbard."

While majoring in journalism at the University of Florida, Doherty "met some congenial and hilarious people manning a booth for the…College Libertarians in the autumn of 1987," and was off to the races, mixing intense philosophical curiosity with an equally deep interest and participation in the more animal spirits of DIY music and expressive freedom.

Relocating to Los Angeles in the mid-'90s, he fell in with "a gang of arty pranksters you've likely never heard of" called the Cacophony Society, who "inspired or created phenomenon ranging from the novel/movie Fight Club to urban exploration, billboard alteration, the Yes Men, flash mobs, and 'Santa Rampages.'"

Cacophony's most lasting stunt was the one that evolved into the annual temporary art festival in Nevada called Burning Man. "I thought my deskbound, magazine-reporter, bedroom record label–running self would be destroyed by the pitiless desert," Doherty would later recall. "So I didn't go in '94. By 1995, I had heard so much about Black Rock City's functional anarchy that I had to go—anarchy being one of my primary intellectual interests."

Those words can be found in the prologue of Doherty's first book, 2004's This Is Burning Man: The Rise of a New American Underground, which grew out of a 2000 Reason cover story. He never stopped going to Burning Man, nor participating wholeheartedly in obscure art/music happenings that some of his bemused work colleagues would find almost as inscrutable as some of his counterculture pals viewed libertarianism.

"Brian's contributions to the art scenes in L.A. and San Francisco were monumental," says his best friend, the showman/experience designer Chicken John Rinaldi. "His passing leaves so many people and so many systems impoverished."

Doherty's knowledge of pop culture, rock music, and comic books was encyclopedic, as evidenced not just by his heroically cluttered workspaces but by his 2022 book, Dirty Pictures: How an Underground Network of Nerds, Feminists, Misfits, Geniuses, Bikers, Potheads, Printers, Intellectuals, and Art School Rebels Revolutionized Art and Invented Comix.

"Libertarians talk a lot about freedom and responsibility. Brian embodied both," Reason Editor in Chief Katherine Mangu-Ward recalls. "His weird, colorful life—filled with comics and festivals and music and books—was a model of life lived freely and openly. And in his thinking, reporting, and editing, he was one of the most conscientious and responsible people I have ever met. A libertarian hero in every sense."

Spelunking in subcultures both libertarian and whimsical led to a lot of early discoveries that the normies only sussed out later. Doherty profiled New Hampshire's Free State Project way back in 2004, caught Seasteaders on their then-rise in 2009, and started covering Bitcoin in 2013. Though, as he ruefully admitted later, he knew about the groundbreaking crypto currency as early as July 2010 yet somehow neglected to cash in.

"Had I shelled out, say, $2,000 on this innovative, anti-inflationary currency even a lazy six weeks after I was introduced to it," he wrote, "today I would be sitting on 28,571 bitcoins, the equivalent at press time of over $212 million in cash." More like $2 billion now, but who's counting?

After news of his death broke, Doherty's work colleagues filled up a long Slack thread with fond memories of his deep-seated sense of tolerance, his garrulous laugh, his fury at personal technology, his sometimes elliptical prose style. A staffer once made a T-shirt from a typically verbose Dohertian Slack message: "I try not to assume that because crazy people with crazy beliefs believe or used to believe the things I believe for what I think are right and sane reasons, that that is a sign that I am crazy. But it's getting harder and harder I confess."

Doherty in recent years had suffered from a series of physical ailments and setbacks that left him walking with a cane. It is likely that condition contributed to his deadly tumble Thursday, as he took a stroll away from—of course!—an art gathering atop an abandoned World War 2 gun battery. More details are expected to emerge next week, though the (terrible) news remains the same.

What we're left with is a sui generis body of work. Explorations of "the hippie capitalism of the Grateful Dead." Massive oral histories of the Libertarian Party and Reason. A full-throated libertarian critique/condemnation of a man many of his fellow Rothbardians took a flier on, Donald Trump.

"He and his work will be missed," former Reason Editor-in-Chief Nick Gillespie tweeted Saturday. "And more important, remembered."

The post Brian Doherty, Historian of the Libertarian Movement, Dead at 57 appeared first on Reason.com.

For more on the opinion, see this post.

The post From Chief Judge Boasberg's Opinion Quashing Grand Jury Subpoena Related to Fed Chair Jerome Powell appeared first on Reason.com.

"Jerome 'Too Late' Powell has done it again!!! He is TOO LATE, and actually, TOO ANGRY, TOO STUPID, & TOO POLITICAL, to have the job of Fed Chair. He is costing our Country TRILLIONS OF DOLLARS …. Put another way, 'Too Late' is a TOTAL LOSER, and our Country is paying the price!" That [Truth Social post] is one of at least 100 statements that the President or his deputies have made attacking the Chair of the Federal Reserve and pressuring him to lower interest rates. So is this: "'Too Late' Jerome Powell is costing our Country Hundreds of Billions of Dollars. He is truly one of the dumbest, and most destructive, people in Government …. TOO LATE's an American Disgrace!"

Yet the President has been unable to push rates lower through social-media posts. He has thus hinted at other options: "I want to get him out …." Several months ago, he mused that if the Fed does not cut rates, "I may have to force something." Appointed officials and the White House Press Secretary have taken up the call. See … Federal Housing Finance Agency Director William Pulte calling on Congress to investigate Powell …; … White House Press Secretary announcing that "the administration, led by the president, is looking into" Fed's renovations ….

Perhaps it comes as no surprise, then, that the D.C. U.S. Attorney's Office has recently opened a criminal investigation into Powell. It has served two subpoenas on the Federal Reserve Board of Governors, seeking records about recent renovations of the Board's buildings and testimony that Powell delivered to Congress that briefly discussed those renovations. The Board has now responded with a Motion to Quash, contending that the subpoenas are merely part of the gameplan to pressure Powell to bend to the President's wishes or to get rid of him.

The case thus asks: Did prosecutors issue those subpoenas for a proper purpose? The Court finds that they did not. There is abundant evidence that the subpoenas' dominant (if not sole) purpose is to harass and pressure Powell either to yield to the President or to resign and make way for a Fed Chair who will.

On the other side of the scale, the Government has offered no evidence whatsoever that Powell committed any crime other than displeasing the President. The Court must thus conclude that the asserted justifications for these subpoenas are mere pretexts. It will therefore grant the Board's Motion to Quash. It will also grant the Board's Motion to Partially Unseal the Motion to Quash, related briefing, and this Opinion….

Surveying precedents, the Court distills four lessons. First, courts have recognized two improper purposes that seem especially relevant here. For one, prosecutors may not use the grand jury "to engage in arbitrary fishing expeditions" or to "select targets of investigation out of malice or an intent to harass." So if they singled out an opponent of the President "out of malice" or "to harass" him, including by fishing around for some crime to pin on him, that would not be kosher.

Separately, Trump v. Vance suggests that if prosecutors are forbidden from meddling with an official's duties, then they cannot use criminal investigations to pressure him into enacting their preferred policies. In Vance, state prosecutors had issued grand-jury subpoenas seeking financial records concerning President Trump and his businesses. The Court did not decide whether those subpoenas were proper, but it warned that state DAs cannot use grand-jury subpoenas to "interfer[e] with a President's official duties." It reasoned that because the Supremacy Clause bars state prosecutors from interfering in the President's policy decisions, they cannot turn to subpoenas to try to "manipulate a President's policy decisions" or to "retaliate against a President for official acts." That warning extended a well-established principle: "[A] government official cannot do indirectly what she is barred from doing directly …."

As noted above, the President and his appointees may not interfere with the Fed Chair's choices about monetary policy. Vance thus suggests that, in addition, the President's appointees may not use grand-jury subpoenas to pressure the Chair to take certain official actions or to retaliate against him for policies that they dislike.

While those two improper purposes seem especially relevant here, the caselaw's second teaching is that an abusive purpose need not be clearly identified in precedents for a court to deem it improper. Instead, improper purposes are as numerous and protean as are the opportunities for prosecutors to misuse their power. Consider the expansive (and expanding) list that courts have identified, often for the first time in the case then at bar. For example, prosecutors cannot harass a target with subpoenas "with no expectation that any testimony concerning the commission of a crime would be forthcoming." They may not use grand-jury subpoenas to get evidence for a separate civil case, thereby evading the rules of civil discovery. Or to get evidence for an already-indicted criminal case, thus skirting criminal discovery. Or to demand details that are irrelevant to the crime under investigation but that would chill a target's First Amendment rights. Or to subpoena journalists in bad faith, solely to expose confidential sources. Or to drag a witness before the grand jury over and over in the hopes that he might contradict himself and so expose himself to a perjury prosecution.

With varied improper purposes popping up on different occasions, it is clear that such purposes cannot be reduced to a fixed and exhaustive list. In none of the cases above did the court take a subpoena's purportedly improper purpose, hold it up to the list of improper purposes that other courts had already recognized, and say that a match was required. Instead, when new facts present new ways that prosecutors might be abusing their subpoena power, courts do not hesitate to declare those purposes improper.

Returning to the case at hand, while these subpoenas' purpose would be improper if it resembled the forbidden purposes identified in R. Enterprises and Vance, that is not necessary. The Court would still quash them if they were issued for an improper purpose that prior cases had no occasion to identify.

Third, the Government is not necessarily acting for a proper purpose just because it seeks information relevant to a criminal investigation. Someone can move to quash a subpoena because it is irrelevant or because it serves an improper purpose. A subpoena thus might be quashed because it is irrelevant, regardless of its purpose. Or it could be quashed for having an improper purpose, even though it asked for information relevant to a criminal investigation. Consider a subpoena hunting for evidence in an already-indicted case: it is plainly seeking relevant evidence, yet it is an improper purpose to use the grand jury to bolster trial testimony. Applying that principle here, the subpoenas are certainly relevant to a criminal investigation. Yet if they constitute an improper use of the grand jury, then they have an improper purpose.

Fourth, the strength of a movant's evidence of an improper purpose determines how much the Government must show to substantiate its asserted proper purpose. To be clear, the movant bears the burden of showing an improper purpose. That burden is heavy, since it requires "rebutting the presumption of regularity attached to a grand jury's proceeding." And that presumption cannot be rebutted by mere speculation or conjecture.

That said, if the movant overcomes the presumption, then the Government's burden to justify a subpoena will depend on how much evidence of an improper purpose the movant puts forth. That follows naturally from seeking a subpoena's dominant purpose: the more evidence there is that the purpose is improper, the more is needed to show that a proper purpose nonetheless dominated. Since a grand-jury subpoena's proper purpose is investigating suspicious facts that might suggest a crime, that means showing a stronger basis for such investigation….

With those lessons in hand, the Court applies them to the facts….

The Board contends that the Government issued these subpoenas for the improper purpose of harassing and pressuring Powell to push the Fed to lower interest rates or to resign and make way for a more pliant Chair. There can be little debate that such purpose would be improper. As just discussed, existing caselaw warns that prosecutors may not "select [a] target[ ] of investigation out of malice or an intent to harass." And it implies that if prosecutors—or the President who appointed and can fire them—are legally barred from interfering in an official's policy choices, they may not use grand-jury subpoenas in an "attempt to influence" him or to "retaliate against [him] for official acts." True, no case says that federal prosecutors cannot target the head of an independent agency to pressure him to knuckle under or step aside. That purpose would still be improper, though: it would sic prosecutions on people because the President dislikes them, use criminal subpoenas as a form of official coercion, and thwart statutes protecting the agency's independence. Even if nobody has tried that before, a novel improper purpose is improper all the same.

What the Court must determine is whether the Board is correct in its inference. In other words, what is these subpoenas' dominant purpose? A mountain of evidence suggests that the dominant purpose is to harass Powell to pressure him to lower rates. [For more details, see the opinion. -EV] …

True, most of the evidence above speaks to the motives of the President, not the U.S. Attorney's Office. Yet judges "are not required to exhibit a naiveté from which ordinary citizens are free." The U.S. Attorney was appointed by the President and can be fired by him. Her peer one district over was recently pushed out for refusing to prosecute the President's opponents. The signal to other U.S. Attorneys was hard to miss. Indeed, this U.S. Attorney's Office has targeted the President's opponents before. Compare, e.g., Donald J. Trump (@realDonaldTrump), Truth Soc. (Nov. 20, 2025, at 9:17 AM), https://perma.cc/6CKS-7LPA (reposting article about Democratic members of Congress who posted video telling service members to refuse illegal orders and commenting, "This is really bad, and Dangerous to our Country. Their words cannot be allowed to stand. SEDITIOUS BEHAVIOR FROM TRAITORS!!! LOCK THEM UP???"), with Alan Feuer, Glenn Thrush & Michael S. Schmidt, Grand Jury Rebuffs Justice Dept. Attempt to Indict 6 Democrats in Congress, N.Y. Times (Feb. 10, 2026), https://perma.cc/TY69-XV55 (D.C. U.S. Attorney's Office then tried to indict all six of those congresspeople). It is a natural inference that the President's appointee was responding to his desires (whether real or perceived) here.

Against such extensive and persuasive evidence of improper motive, the Government counters with only a tenuous assertion of a legitimate purpose. In its briefing, the Government's sole justification for investigating the renovation is that it went "far over budget, raising the specter of fraud." But buildings often go over budget. That fact, standing alone, hardly suggests that a crime occurred. Nor is there any reason to think that this project was especially prone to fraud. On the contrary, the Board's "independent Inspector General … has had full access to project information on costs, contracts, schedules, and expenditures and receives monthly reports on the construction program." He audited the renovation several years ago and raised no concerns about fraud.

As for Powell's testimony, the Government vaguely intimates that it "contained possible discrepancies" and was "possibly problematic." What those discrepancies or problems might be, it does not (or cannot) say. Indeed, most members of the Committee that Powell testified before—including a majority of each party's members, as well as the Committee's Chair—have said that they do not think he committed any crime. Searching for any reason to suspect that Powell might have lied to Congress, the only one the Court can descry is that he testified at a hearing. The Government might as well investigate him for mail fraud because someone once saw him send a letter….

When the evidence of improper motive is so strong and the justifications for these subpoenas are so tenuous, it is hard to see the renovations and testimony as anything other than a convenient pretext for launching a criminal investigation that the Government launched for another, unstated purpose: pressuring Powell to knuckle under. In light of all the evidence, the only reasonable inference is that the Government targeted Powell "out of malice or an intent to harass" and has launched a "fishing expedition[ ]" to either find something to pin on him or to pressure him to fold. That harassment seems aimed at bulldozing the Fed's statutory independence….

Andrew Z. Michaelson, Jeffrey S. Bucholtz, Leah B. Grossi, Nicholas A. Mecsas-Faxon, and Robert K. Hur (King & Spalding) represent the Board.

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These consolidated appeals concern several lawsuits filed over an incident at the annual fireworks show hosted by the City of Athens, Tennessee, in 2022, and the subsequent fallout. By separate opinion issued this date, we affirm the district court in all respects.

This opinion addresses the misconduct of Glenn Whiting's lawyers, Van Irion and Russ Egli, in their briefing before this court and the sanctions we impose for it. That briefing repeatedly misrepresented the record, cited non-existent cases, and cited cases for propositions of law that they did not even discuss, much less support….

[W]e found over two dozen fake citations and misrepresentations of fact in Whiting's briefs, which we list in an appendix to this opinion. {This is a conservative estimate. We call something a "fake citation" or "misrepresentation of fact" only when it is clearly so. We do not include typos or sloppy citations. "As those mistakes could be attributed to simple sloppiness in drafting, as opposed to a failure to comply with the basic obligations of legal counsel, they are not the subject of this" opinion. If we included typos and other errors that are arguably, but not clearly, a misrepresentation or fake citation, we would be looking at far more misstatements of fact and law.}

Upon discovering these problems, we ordered Irion and Egli to show cause why they should not be sanctioned. The order instructed them to (1) explain why they should not be sanctioned for citing fake cases, (2) provide a copy from Westlaw or LexisNexis of all the cases and authorities cited in all of the briefs filed across the three appeals, (3) highlight any material that they quoted from those cases, (4) tell us who wrote the briefs in each case, (5) tell us whether the briefs were ghostwritten in whole or in part, (6) tell us whether they used generative AI to write the briefs, and (7) explain how they cite-checked the briefs.

Irion and Egli did not respond to these directives. Instead, they said the show cause order was "void on its face for failing to include a signature of an Article III judge," was "motivated by harassment of the Respondent attorneys," and "reflect[ed] illegal ex-parte [sic] communications within this Court." …

[W]e "reject[ ] any … notion that because some authority exists to support a legal proposition it should negate the harm caused by false and hallucinated cases. Put bluntly—absolutely not; period; end of story; all stop." Citing even a single fake case can be sanctionable because "no brief, pleading, motion, or any other paper filed in any court should contain any citations—whether provided by generative AI or any other source—that" a lawyer has not personally "read and verified." …

Although citing fake cases violates Federal Rule of Appellate Procedure 38, Rule 38 alone is not "up to the task" of sanctioning this conduct, because Rule 38 allows only for the imposition of costs and attorneys' fees. But we think other sanctions are also appropriate, so we employ our inherent authority….

Although Irion and Egli did not seriously respond to our show cause order, we construe their responses as making four objections: (1) the show cause order violated Sixth Circuit Local Rule 46, (2) attorney-client and work-product privilege excused compliance with the show cause order, (3) the order was invalid because it allegedly came from several ex parte communications, and (4) the order is void because the clerk signed it.

The show cause order did not violate Local Rule 46. Local Rule 46 governs suspension, disbarment, and other forms of attorney discipline. But the rule expressly contemplates that this court could impose litigation sanctions and "does not limit the court's" power to do so. Id. The show cause order cited Federal Rule of Appellate Procedure 38 and Chambers v. NASCO, Inc. (1991), which govern sanctions for a frivolous appeal and inherent authority sanctions, respectively. Put simply, the show cause order did not initiate disciplinary proceedings under Local Rule 46, nor do we impose discipline under that rule. Instead, we exercise our inherent authority and our powers under Rule 38 to sanction Irion and Egli for bad-faith litigation conduct….

Our order does not violate the work-product or attorney-client-privilege doctrines, either. Under those doctrines, we may not compel the disclosure of a lawyer's notes, prior drafts of briefs, or legal advice absent waiver. But the order to show cause sought no such thing. Whether and how the briefs were cite-checked does not implicate conversations regarding legal advice, nor do they ask for any work product of any kind.

Finally, our orders are not invalid simply because the clerk signed them. We have already told Irion and Egli that our orders are not void when the clerk signs them in this very case. Whiting v. City of Athens (6th Cir. June 2, 2025). And the Supreme Court has twice denied petitions for mandamus from Irion and Egli demanding that the clerk stop signing our orders. See In re Murphy (2025); In re Irion (2026). Neither Irion nor Egli points us to any authority saying that the clerk may not sign our orders….

Irion and Egli breached the trust that we must have in the lawyers appearing before us. They have brought the profession into disrepute. Irion's and Egli's failure to comply with the basic rules of our profession has forced us and the City to unnecessarily expend time and resources on a case that should have been litigated and resolved straightforwardly but was not.

More importantly, by breaching our trust, we can no longer rely on the representations in Irion's and Egli's briefs, harming both their clients (whose cases are now viewed with skepticism) and this court (who must now independently verify everything Irion and Egli write). Finally, Irion and Egli have sullied the reputation of our bar, which now must litigate under the cloud of their conduct. We therefore issue these sanctions to Irion and Egli, the rationales for which we will explain below:

1. Irion and Egli must jointly and severally reimburse appellees in full for their reasonable attorneys' fees on appeal in all three appeals.
2. Irion and Egli must jointly and severally pay double costs to appellees for costs incurred under 28 U.S.C. § 1920 on appeal in all three appeals.
3. Appellees must file an accounting of their costs and attorneys' fees on appeal, with supporting documentation, no later than seven days from the date of this order. Irion and Egli shall file any responses or objections to appellees' requests for costs and attorneys' fees on appeal no later than seven days thereafter. There will be no replies.
4. Irion and Egli must each separately and individually pay $15,000 to the registry of this court as punitive sanctions for the proceedings in this court in all three appeals.
5. The clerk will forward a copy of this order to the chief judge to consider disciplinary proceedings under Sixth Circuit Local Rule 46.
6. If Irion and Egli are financially unable to comply with some or all of the requirements of this order, they must file an affidavit under seal describing their financial situation along with their objections to appellees' fee requests.

{We could have gone much further. Other courts have dismissed cases, disqualified lawyers, or revoked their pro hac vice status for similar conduct. But only the chief judge can suspend or disbar a lawyer from practice before this court, see 6th Cir. Local Rule 46(c)(4)(C), so those sanctions are not available to us, and we choose not to sanction Whiting himself because we have no evidence that Whiting participated in the misconduct.

Finally, we could have held Irion and Egli in contempt because they flagrantly ignored our order to show cause. But we do not think additional sanctions are necessary to send the message we send here.}

A substantial penalty is necessary to compensate the City for the time spent dealing with Whiting's litigation and for having to deal with the rampant misconduct Irion and Egli committed on appeal. Although courts often limit the amount of fees to "those the losing party foisted on the winner," the pervasive misconduct makes these appeals almost entirely frivolous. We found systemic problems with Whiting's briefing, including misrepresentations of fact and law, improper citation formatting, an inadequate record, and copious drafting errors. Even if there might have been a grain of merit in these appeals, we can disregard the non-frivolous aspects and treat the entire appeal as frivolous. Given how many problems there were in this case, we conclude that appellees should be fully compensated for being forced to litigate this appeal.

We award double costs to appellees because that is the stiffest penalty available under Rule 38. Rule 38 is supposed "to deter frivolous appeals and thus preserve the appellate calendar for cases worthy of consideration." Double costs will send the loudest message that this type of conduct is not allowed in our court or any other.

We can issue fines when issuing inherent authority sanctions, Shepherd, 62 F.3d at 1475, and courts have generally issued fines for similar misconduct. We agree that this is appropriate. Citing fake cases "unnecessarily burdens the court and the taxpayers," so courts can and should fine the offending lawyers to reimburse the court for its time. A lawyer's misrepresentation of the law and facts heavily burdens the courts and their staffs.

We rely on good briefing to narrow and clarify the issues for our review while helping us locate the facts and the law that will govern the case. But we did not have that assistance from Whiting's counsel because we could not rely on any of their briefing to truthfully explain the facts and governing law. Their submission of fake cases and factual misrepresentations forced the court to individually verify every single citation to determine the appropriate sanction.

To call these consolidated appeals a burden would be an understatement. We choose $15,000 each because (1) the misconduct was spread across three cases instead of just one and (2) smaller fines have plainly been inadequate—as is evidenced by the continuous stream of cases raising the same problems.

Four additional aggravating factors in this case warrant particularly harsh sanctions.

First, Irion and Egli are appealing sanctions orders, and they have engaged in further misconduct….

Second, Irion and Egli have been disciplined for lack of candor to the tribunal before. In 2017, the Supreme Court of Tennessee publicly censured Egli for lack of candor to the tribunal. See In re Egli, No. M2017-00608-SC-BAR-BP (Tenn. Mar. 30, 2017) (per curiam). And in August 2025 (while Irion and Egli were briefing these appeals), Irion was suspended from the Eastern District of Tennessee for five years because he lied to the district court in No. 25-5424. In re Irion, 2025 WL 2319537, at *13, *37. Despite this, both Irion and Egli submitted several briefs to this court with fake citations and misrepresentations of the record.

Third, Irion and Egli defied this court's order to show cause and refused to provide the information we requested. For over 150 years, the Supreme Court has said that litigants must comply with court orders, whether they are erroneous or not….

Fourth, the responses to the show cause order that Irion and Egli did file show a stunning lack of respect for this court, the members of the panel and their staffs, and the rule of law. Most litigants caught submitting fake cases have apologized and sought forgiveness, rightly recognizing the seriousness of their misconduct. By contrast, Irion and Egli scolded this court and accused it of engaging in a vast conspiracy to harass them. More severe sanctions are clearly warranted to deter misconduct like this….

The courts are, should be, and must be, open to all litigants who have suffered harms at the hands of the government. And nothing in this opinion should be construed as a holding that Irion and Egli were appropriately sanctioned simply because they lost. That is far from the truth.

Irion and Egli have engaged in a coordinated effort to harass the City of Athens, Tennessee, and its employees through non-stop litigation over the past five years. They asserted claims that they knew were meritless to drain the resources of the City. They then compounded the problems by submitting briefs to this court with fake citations and factual misrepresentations and defying the order to show cause why they should not be sanctioned. To protect the integrity of our proceedings, we take the measures outlined [above]….

UPDATE: I originally neglected to note in the headline that each lawyer must pay a $15K fine; thanks to reader Jordan Brown for pointing this out.

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Some of the defendants have made a practice of copying me and the magistrate judge on emails addressed to others. Local Rule 7.1(M) prohibits the practice. I have read none of the emails; they have been intercepted by my staff and deleted. I am told that their tone is completely inappropriate, but the practice would be totally unacceptable, even if the tone was professional. This order constitutes an injunction requiring the defendants to stop. A violation of this order may be punished as contempt of court with sanctions including fines or imprisonment. If the defendants continue the practice, it will not end well for them. They should govern themselves accordingly.

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From Friday's order in Reyes v. Turin (N.D. Ill.).

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"We're not going to give in to terrorism," Vice President J.D. Vance declared after an Immigration and Customs Enforcement (ICE) agent fatally shot Minneapolis protester Renée Good in January. Vance averred that Good was involved in anti-ICE "terrorism," which he said included not only violent assaults but also provocations by "people trying to antagonize" ICE agents.

In viewing speech that pisses off cops as a crime, Vance was following a legal tradition that the U.S. Supreme Court launched in 1942, when it invented a vague First Amendment exception for "fighting words." Although subsequent decisions cast serious doubt on the viability of that doctrine, its logic remains popular with government officials who think speech that offends them should be illegal.

The case that gave birth to this handy excuse for censorship began on a Saturday afternoon in April 1940, when a Jehovah's Witness named Walter Chaplinsky attracted a hostile crowd while distributing literature near Central Square in Rochester, New Hampshire. Passersby were offended by Chaplinsky's message, which condemned organized religion as a "racket." They complained to James Bowering, the city marshal who ran the local police department. According to Bowering, he informed the complainants that Chaplinsky had every right to proselytize but also warned Chaplinsky that he had better cut it out.

Frank R. Kenison, New Hampshire's attorney general, would later tell the Supreme Court that Chaplinsky "announced his literature in terms having a tendency to irritate the people by calling 'racketeers' priests and those of their faith." Bowering warned Chaplinsky that "the people were getting in an ugly mood as a result of his public announcements with reference to priests and religion." A short while later, Bowering, who had left the scene, "was advised by a man passing by in a car that there was what he thought was a riot at the Square."

On his way to "the point of trouble," Kenison said, Bowering "met two officers" who were taking Chaplinsky to the police station "more for his protection than for arrest." Bowering "reminded" Chaplinsky of "his earlier warning" that "the people might get out of hand if he continued using the language he had with reference to their faith and priests." At that point, according to Kenison, Chaplinsky spoke the words that changed his protective custody into an arrest.

"You are a God-damned racketeer" and "damned fascist," Chaplinsky allegedly said, adding that "the whole government of Rochester are fascists or agents of fascists." Those "offensive, derisive and annoying words and names," Kenison explained, were a crime under New Hampshire law.

That crime earned Chaplinsky a six-month jail sentence, which the New Hampshire Supreme Court unanimously approved in March 1941, rejecting the preacher's argument that his prosecution violated the First Amendment. A year later, the U.S. Supreme Court unanimously agreed that Chaplinsky had no right to call Bowering a "racketeer" and a "fascist." To reach that conclusion, the justices invented a new, hazily defined exception to the First Amendment that would-be censors are still invoking more than eight decades later.

Freedom of speech, the justices ruled in Chaplinsky v. New Hampshire, does not apply to "'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." After formulating that vague and potentially sweeping rule, the Supreme Court never again relied on it to uphold a criminal conviction. But the Court has not explicitly repudiated the doctrine, which continues to influence lower-court decisions—often involving defendants who, like Chaplinsky, were arrested for talking back to the police.

The "fighting words" doctrine also figures in contemporary political debates about the constitutionality of punishing people for offensive speech. President Donald Trump explicitly invoked the doctrine last August, when he instructed Attorney General Pam Bondi to "prioritize" the prosecution of flag burners. Bondi herself alluded to the "fighting words" exception after the September 10 assassination of conservative activist Charlie Kirk. Drawing an erroneous constitutional distinction between "free speech" and "hate speech," she warned that the Justice Department "will absolutely target you, go after you, if you are targeting anyone with hate speech."

Syndicated columnist Wilmer J. Leon agreed with Bondi that "hate speech" should not be confused with "free speech." But as Leon saw it, Kirk himself had crossed that line.

"We cannot afford to be lulled into this trap equating racist rhetoric and hate with protected political speech," Leon wrote. Citing Chaplinsky, he argued that Kirk's criticism of Martin Luther King Jr., whom Kirk had called "awful" and "not a good person," amounted to "fighting words" rather than "political speech" because "those comments have no social value." Since Leon described Kirk as "an angry, ignorant, intolerant, xenophobic, racist, hate spewing white supremacist," that column might itself qualify as "hate speech" in Bondi's book.

The versatility of the "fighting words" doctrine is not a point in its favor. The Supreme Court's rationale for blessing Chaplinsky's punishment is an open-ended license to restrict speech based on the anticipated response of people offended by it. Might they decide to physically attack the speaker? And even if they remain peaceful, might they suffer the "injury" that certain words "inflict" by "their very utterance"?

These subjective judgments are bound to be influenced by the majority's view of acceptable expression. The "fighting words" doctrine is therefore inherently hostile to dissenters like Chaplinsky, precisely the people who are most likely to need the First Amendment's protection.

'Please Arrest the Ones Who Started This Fight'

Kenison's account of the day Chaplinsky was arrested omitted details that underline the dangers of letting fear of violence, let alone the possibility of hurt feelings, override freedom of speech. Kenison conceded that Bowering advised Chaplinsky to stop preaching in light of the anger his words had provoked. But according to Chaplinsky, Bowering also refused to protect him from hecklers who repeatedly assaulted him.

Chaplinsky's lawyers described "a tumultuous crowd of about fifty or sixty persons" who "objected to his work and threatened him with violence if he did not discontinue." When Bowering first arrived at the scene, he was "accompanied by a man named Bowman," who "assaulted" Chaplinsky, "catching him by the throat with his left hand" and punching him "with his right fist." Chaplinsky "wrenched himself free" and turned to Bowering, saying, "Marshal, I want you to arrest this man." Bowering's reply: "I will if I feel like it."

According to Chaplinsky's Supreme Court brief, Bowering then left. About five minutes later, Bowman, armed with an American flag on a staff, ran toward Chaplinsky and tried to spear him. Chaplinsky "avoided the blow" but "was pushed by Bowman into the gutter against an automobile." Bowman then "gave the flag to another man," grabbed Chaplinsky by the collar, called him a "son of a bitch," and demanded that he salute the flag.

Bowman knew Chaplinsky would refuse. Jehovah's Witnesses view such gestures as a form of idolatry—one of several unpopular beliefs that help explain why the group was frequently singled out out for abuse and discrimination.

After the flag incident, Chaplinsky's lawyers reported, Bowering and three other officers "picked him up from the ground" and started "shoving him along roughly" to the police station. Chaplinsky again suggested that Bowering do his job, asking him to "please arrest the ones who started this fight." The marshal again refused, saying, "Shut up, you damn bastard, and come along." This was the context in which Chaplinsky called Bowering a "racketeer" and a "fascist," although he denied saying "God-damned."

It got worse. While being "shoved and dragged" to the police station, Chaplinsky "recognized among the officers escorting him one of the men who had struck him," who identified himself as Deputy Sheriff Ralph Dunlap. "If you are a deputy sheriff," Chaplinsky replied, "this whole city" must be run by "fascists."

At the police station, Dunlap vented his anger at Chaplinsky, saying, "You son of a bitch, we ought to have left you to that crowd there and have them kill you." Bowering shoved Chaplinsky into a chair and added, "You unpatriotic dog, I am going to arrest you on account you called me a God-damned fascist."

Bowering was true to his word. Chaplinsky was convicted of violating an 1885 New Hampshire statute that said: "No person shall address any offensive, derisive or annoying word to any other person who is lawfully in the street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, annoy or offend him or prevent him from pursuing his lawful business or occupation."

'A Breach of the Peace'

That broad language proved to be a problem for the New Hampshire Supreme Court when it considered Chaplinsky's appeal. Rather than apply the statute as written, the court claimed to have discovered a limiting principle in two of its earlier decisions.

In an 1894 case involving a defendant who had publicly called another man "a God damned blackmailer," the court said the "purpose" of the statute was to "preserve the public peace." It explained that "the direct tendency of such conduct" is to "provoke the person against whom it is addressed to acts of violence." A case decided six years later involved a defendant who publicly called a woman a "bitch" and "other obscene words." The court reiterated that the law was aimed at utterances that might provoke "a breach of the peace."

Based on those precedents, the New Hampshire Supreme Court concluded, Chaplinsky had adequate notice of the conduct covered by the law. "Long before the words for which Chaplinsky was convicted," the court said in State v. Chaplinsky, "the construction of the provision was made plain, to the extent that no words were forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." So construed, the court ruled, the law was perfectly consistent with the First Amendment.

"At the moment the defendant uttered the words for which he was convicted, he undoubtedly felt resentment because he had been roughly handled by the crowd," the court conceded. "His resentment might well enough have extended to the police if they had failed to take any step reasonably within their power to control the crowd, or if they had failed to prosecute anybody who they had reasonable ground to believe had assailed him. But those facts, if true, would not have justified the offensive manner in which he sought to bring the Marshal to what Chaplinsky may have regarded as a sense of his duty. It was not useful or proper comment for bringing truth to light. Its plain tendency was to further breach of order, and it was itself a breach of the peace."

The court rejected Chaplinsky's argument that the statute was unconstitutionally vague. "The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight," it said. "The English language has a number of words and expressions which by general consent are 'fighting words' when said without a disarming smile….The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitute[s] a breach of the peace by the speaker—including 'classical fighting words,' words in current use less 'classical' but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats."

As Belmont University law professor David Hudson notes, the phrase "fighting words" had never before appeared in an appeals court decision. Yet the New Hampshire Supreme Court assumed everyone knew which words fell into that category. It also asserted that uttering them, in addition to inviting violence, is "itself a breach of the peace"—except perhaps when the speaker is smiling. The decision was a muddle, and the U.S. Supreme Court made it worse by extending the First Amendment exception to include words that inherently cause "injury," whether or not they provoke violence.

Justice Frank Murphy's seven-page opinion, published in March 1942, cited the Supreme Court's 1940 ruling in Cantwell v. Connecticut, which also involved proselytizing by Jehovah's Witnesses. In Cantwell, the Court unanimously rejected a state licensing requirement for such activity and held that the preachers, Newton Cantwell and his two sons, had not committed a "breach of the peace" by publicly playing a phonograph recording that inveighed against the Catholic Church and organized religion in general.

Cantwell did that in a heavily Catholic neighborhood of New Haven, and "the hearers were in fact highly offended," Justice Owen Roberts noted in the Court's opinion. "One of them said he felt like hitting Cantwell and the other that he was tempted to throw Cantwell off the street." The Court nevertheless held that Cantwell's message was protected by the First Amendment. By contrast, Roberts said, "resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution."

That passing remark, Murphy said in Chaplinsky, illustrated the supposedly longstanding principle that "fighting words" are not protected by the First Amendment. "It has been well observed that such utterances are no essential part of any exposition of ideas," he wrote, "and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

'Goddamn Motherfucking Police'

Two decades ago, Temple University law professor Burton Caine published a devastating 122-page critique of Chaplinsky in the Marquette Law Review. Among many other problems, Caine noted that Murphy's definition of "fighting words," even if it is understood as applying only to face-to-face confrontations between two individuals, can be interpreted in at least 10 distinct ways, each with different implications for freedom of speech.

"There is no constitutional basis for denying protection to fighting words, either alone or as a subcategory of speech claimed to be unworthy of First Amendment protection," Caine wrote. "The Chaplinsky opinion, plagued with vague language regarding categories and characteristics of expression that purportedly do not qualify for First Amendment protection, violates established First Amendment standards in several regards. Perhaps most importantly, what the Court in Chaplinsky labels as fighting words is, in reality, 'political' speech or speech on public issues, which deserves the utmost protection in the American democracy."

The facts of the case underline that point. Chaplinsky did not call Bowering a "racketeer" and a "fascist" out of the blue. He applied those labels to a police chief who had manifestly abandoned his responsibility to keep the peace, arrest violent aggressors, and protect the constitutional rights that Chaplinsky was exercising on the street in Rochester. In other words, Chaplinsky was criticizing the conduct of a public official, albeit in terms that both the New Hampshire Supreme Court and the U.S. Supreme Court viewed as distasteful.

If the "fighting words" doctrine aims to keep the peace, Murphy's distinction between controversial advocacy and "epithets or personal abuse" was puzzling. Chaplinsky's preaching, which even Bowering conceded was constitutionally protected, actually provoked a violent response. By contrast, there was no evidence that his evaluation of Bowering had a similar effect.

Although the Supreme Court has never officially overruled Chaplinsky, it has declined to follow the decision's logic in a long series of cases. Just a year later in Cafeteria Employees Union v. Angelos, the Court described fascist, one of the words that led to Chaplinsky's conviction, as an example of "loose language" that is "part of the conventional give and take in our economic and political controversies." Subsequent cases featured speech that the justices deemed constitutionally protected even though it was much more offensive than anything Chaplinsky said to Bowering.

In Terminiello v. Chicago, decided seven years after Chaplinsky, the justices sided with a priest who had been convicted of breaching the peace after he delivered a viciously antisemitic speech in Chicago, calling people who disagreed with him "slimy scum," "snakes," and "bedbugs." As Justice Robert H. Jackson noted in his dissent, the words for which Chaplinsky had been imprisoned were "mild in comparison to the epithets" that Arthur Terminiello "hurled at an already inflamed mob of his adversaries." A prosecution witness testified that she was so "riled up" by "all the lies" Terminiello told that she "felt like" responding with violence.

Two years later in Kunz v. New York, the Supreme Court upheld the First Amendment rights of a Baptist minister who had publicly called Catholicism "a religion of the devil," condemned the pope as "the Antichrist," and described Jews as "Christ-killers" and "garbage" that "should have been burnt in the incinerators" of Nazi Germany. The Court likewise perceived no "fighting words" in cases involving defendants who addressed law enforcement officers with epithets such as "white son of a bitch," "chicken shit mother fucker," "fucking, prick-ass cops," and "goddamn motherfucking police."

Concurring in one of those cases, Justice Lewis Powell suggested that the standard for "fighting words" should be especially strict in cases involving police encounters. "If these words had been addressed by one citizen to another, face to face and in a hostile manner, I would have no doubt that they would be 'fighting words,'" Powell wrote in the 1972 case Lewis v. New Orleans. "But the situation may be different where such words are addressed to a police officer trained to exercise a higher degree of restraint than the average citizen." Two years later, Powell reiterated that "a properly trained officer may reasonably be expected to 'exercise a higher degree of restraint' than the average citizen, and thus be less likely to respond belligerently to 'fighting words.'"

The Supreme Court's 1971 ruling in Cohen v. California also cast doubt on Chaplinsky's viability. The decision overturned a 19-year-old man's conviction for disturbing the peace by wearing a jacket bearing the slogan "Fuck the Draft" in the Los Angeles County Courthouse. That message did not qualify as "fighting words," Justice John Marshall Harlan II said in the majority opinion, because "no individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult." The ruling nevertheless undermined a key premise of Chaplinsky: that criticism of the government loses constitutional protection when phrased in an offensive way.

"Governmental bodies may not prescribe the form or content of individual expression," Harlan wrote. He noted that "words are often chosen as much for their emotive as their cognitive force…which, practically speaking, may often be the more important element of the overall message."

These cases suggest that, contrary to what Murphy implied in Chaplinsky, neither "profanity" nor "obscenity" is enough to classify speech as "fighting words." They also suggest that Murphy's expansion of the category to include inherently injurious words has gone by the boards—an impression reinforced by the Supreme Court's 2011 ruling in Snyder v. Phelps.

That case involved demonstrations at the funerals of soldiers by members of the Westboro Baptist Church, who displayed signs bearing statements such as "Thank God for Dead Soldiers," "Fags Doom Nations," "America is Doomed," "Priests Rape Boys," and "You're Going to Hell." The Court ruled that holding those demonstrators civilly liable for intentional infliction of emotional distress would be inconsistent with the First Amendment.

"Speech is powerful," Chief Justice John Roberts wrote in the majority opinion. "It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

Writing in dissent, Justice Samuel Alito cited Chaplinsky's reference to words of "slight social value" that "by their very utterance inflict injury." He thought that description easily applied in this case. "When grave injury is intentionally inflicted by means of an attack like the one at issue here," he said, "the First Amendment should not interfere with recovery." But the majority did not even mention Chaplinsky.

'Fuck This Shit'

Rumors of Chaplinsky's death nevertheless seem exaggerated, since the "fighting words" doctrine lives on in the lower courts. Caine, who analyzed 89 cases decided from April 1996 to September 2001 that explicitly or implicitly involved "fighting words," found that state courts were much less likely than federal courts to protect speech.

The 39 federal cases did not include any decisions that upheld convictions based on offensive utterances, although eight district courts and two appeals courts rejected "relief actions involving wrongful arrests for speech," and one appeals court upheld a $7,000 fine imposed on a lawyer sued for fraud who used "vile language" during a deposition. The 50 state cases, by contrast, included 36 decisions allowing speech-based convictions.

Many of those state cases, Caine found, involved nothing more than "critical words" aimed at "authoritative bodies." The cases also frequently involved interactions with police officers. In 1996, for example, the Indiana Supreme Court upheld the disorderly conduct conviction of a man who had repeatedly exclaimed "fuck this shit" while being questioned by police. The court said the state reasonably could have viewed those outbursts as an "abuse" of "the right to speak" because they posed "a threat to peace, safety, and well-being." That same year, the Connecticut Supreme Court concluded that a man who said "fuck you" during a police interrogation could be prosecuted for breach of the peace because his speech "constituted 'fighting words' that had a tendency to incite imminent violence."

In 2020, Hudson noted that the "fighting words" doctrine was still "alive and well in the lower courts." He described 14 state and federal cases, six of which involved words addressed to law enforcement officers. In 2004, for example, a federal judge in Kansas dismissed a civil rights lawsuit by two people who were arrested after shouting insults at the police while recording traffic stops. The derogatory terms included "motherfuckers," "fucking pigs," "pieces of shit," "Gestapo," "jack-booted thugs," and "oppressive, sick assholes." Those utterances, the judge concluded, qualified as "fighting words" because they were "inherently likely to produce a violent reaction."

In 2008, by contrast, the South Dakota Supreme Court sided with a man who was convicted of disorderly conduct for "yelling profanities at a passing police car." Marcus J. Suhn, who had just left a bar in Brookings at closing time, shouted: "Fucking cop, piece of shit. You fucking cops suck. Cops are a bunch of fucking assholes." Those insults did not meet the Chaplinsky test, the court ruled: "Just because someone may have been offended, annoyed, or even angered by Suhn's words does not make them fighting words."

Along similar lines, federal appeals courts have rejected punishment of people who give cops the finger. In 2013, for instance, the U.S. Court of Appeals for the 2nd Circuit ruled that the "ancient gesture of insult" did not justify a traffic stop or an arrest for disorderly conduct. Eight years later, the U.S. Court of Appeals for the 8th Circuit reached a similar conclusion in a case involving another motorist who had flipped off the cops.

In 2014, a Wisconsin appeals court likewise held that annoying the police is not enough to sustain a disorderly conduct conviction. "Fuck the fucking cops they ant shit but fucking racist basturds an fucking all of y'all who is racist," Thomas G. Smith had written on a local police department's Facebook page. "Fuck them nigers policy bitchs wat the you got on us not a darn thing so fuck off dicks," he added. The cops thought those were "fighting words," but the appeals court disagreed, saying the state had failed to show that "Smith's comments had a tendency to incite an immediate breach of the peace by others against the police."

That decision illustrates continuing uncertainty about the contours of the First Amendment exception described in Chaplinsky. The Supreme Court's ruling involved a face-to-face confrontation in which the putative threat to public order was the potentially violent reaction of the person who had been insulted. But in Smith's case, the appeals court suggested "fighting words" could include speech that threatens to "incite an immediate breach of the peace by others." It also said "fighting words" are not necessarily "limited to situations in which the speaker and listener are in physical proximity," leaving open the possibility that online comments could fall into that category, although they did not in this case.

Flag Burning 'May Incite Violence'

The president is, if anything, even more confused about the meaning of Chaplinsky. "Burning this representation of America may incite violence and riot," Trump said in his executive order targeting flag desecration. That symbolic act, he suggested, might be "a form of 'fighting words.'"

Inconveniently for Trump, the Supreme Court has explicitly rejected that very argument. In the 1989 case Texas v. Johnson, the justices ruled that prosecuting a protester for burning a flag during the 1984 Republican National Convention in Dallas was inconsistent with the First Amendment. That ritual did not amount to "fighting words," Justice William Brennan said in the majority opinion, because "no reasonable onlooker would have regarded [Gregory] Johnson's generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs."

The state's position, Brennan said, "amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis." But "if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Congress swiftly responded to that decision by approving the Flag Protection Act of 1989, which applied to anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States." Legislators voted overwhelmingly to criminalize conduct that the Supreme Court had just said was protected by the First Amendment. Unsurprisingly, the Court did not think that act of defiance changed the relevant constitutional analysis. In the 1990 case United States v. Eichman, it again rejected the argument that flag burning constitutes "fighting words."

In Trump's view, only "stupid people" think "it's unconstitutional" to jail flag burners. Yet both of the Supreme Court's flag-burning decisions were joined by Justice Antonin Scalia, a conservative icon whom Trump has described as the very model of a "great" jurist. "If I were king, I would not allow people to go about burning the American flag," Scalia remarked in 2012. "However, we have a First Amendment, which says that the right of free speech shall not be abridged. And it is addressed, in particular, to speech critical of the government."

Bondi did not explicitly invoke "fighting words" when she talked about targeting "hate speech," and she later claimed she had been referring to "threats of violence that individuals incite against others." But that rationale did not make much sense either. Under the Supreme Court's 1969 ruling in Brandenburg v. Ohio, even explicit advocacy of violence is protected by the First Amendment unless it is both "directed" at inciting "imminent lawless action" and "likely" to have that effect. The "hate speech" that Bondi presumably had in mind—comments celebrating Charlie Kirk's murder or justifying violence against conservatives in general—would not meet that test.

Whatever Bondi may have meant, people who favor legal restrictions on "hate speech" frequently invoke the "fighting words" concept. In 2015, for example, then–CNN anchor Chris Cuomo, who has a law degree, claimed that "hate speech is excluded from protection" under the First Amendment. When that comment provoked criticism, Cuomo conceded that "hate speech is almost always protected" but argued that "hate speech can be prohibited" as "fighting words" under Chaplinsky. Even if the comments that got Chaplinsky into trouble "would not qualify as fighting words by today's reckoning," he said, "the test still stands as good law."

That same year, Pope Francis condemned "provocateurs" who "speak badly" about "other religions." If someone "says a curse word against my mother," the pope said, "he can expect a punch," which is a "normal" response. He added that the same goes for people who "insult the faith of others," which is why "you cannot make fun of the faith of others."

'Getting Up in Officers' Faces'

The pope's argument probably would not fly even under Chaplinsky, since it equates any mockery of religion with face-to-face insults that "tend to incite an immediate breach of the peace." But that sort of conflation is common.

In 2012, for instance, the Washington Metropolitan Area Transit Authority rejected a subway ad that read: "In any war between civilized man and the savage, support the civilized man. Support Israel. Defeat jihad." Those were "fighting words," the transit authority argued. U.S. District Judge Rosemary Collyer disagreed. Under Cohen, "fighting words" must be "directed to the person of the hearer" and "likely to evoke a violent response," she noted. "As a message communicated in advertising space, Plaintiffs' speech does not meet the Court's description of this category of unprotected speech."

Five years later, Howard Dean, former chairman of the Democratic National Committee, cited Chaplinsky to argue that conservative commentator Ann Coulter should be banned from speaking on college campuses. That decision, Dean claimed, showed that Coulter's opinions are "NOT protected speech under the first amendment."

While Coulter is unlikely to be arrested for uttering "fighting words," the same cannot be said for ordinary Americans who express anger at police officers or other government officials. "Court convictions for offensive speech, commonplace in the states, invariably stem from statutes that have vaguely incorporated selected parts of the Chaplinsky holding without citing the case, or from arguably overbroad statutes in which no mention of the fighting words doctrine exists," Caine noted in his 2004 law review article. "In defiance of the Supreme Court, states do what they want when it comes to suppressing speech."

A bill Kentucky legislators considered in 2021 exemplified that tendency. The bill, which passed the Kentucky Senate by a 2–1 margin but failed in the House, would have expanded the state's definition of "disorderly conduct" to include anyone who "accosts, insults, taunts, or challenges a law enforcement officer with offensive or derisive words, or by gestures or other physical contact, that would have a direct tendency to provoke a violent response from the perspective of a reasonable and prudent person."

The bill's lead sponsor said he was responding to the previous year's protests against police abuses, including the March 2020 death of Breonna Taylor in Louisville. "In these riots, you see people getting up in officers' faces, yelling in their ears, doing everything they can to provoke a violent response," state Sen. Danny Carroll (R–Benton), a retired police officer, told the Louisville Courier Journal. "I'm not saying the officers do that [i.e., respond violently], but there has to be a provision within that statute to allow officers to react to that. Because that does nothing but incite those around that vicinity, and it furthers and escalates the riotous behavior."

Carroll's defense of his bill, which relied on Chaplinsky, illustrated the confusion engendered by that decision. The bill applied to speech that "a reasonable and prudent person" would think was apt to "provoke a violent response," presumably from the insulted police officer. Carroll's comments confirmed that impression, since he described protesters who tried to get a rise out of cops. At the same time, Carroll cast doubt on the notion that police were apt to punish words with violence and suggested the real concern was incitement of other protesters—a threat more logically analyzed under the Brandenburg test.

Carroll was rightly criticized for trying to punish criticism of the police. As Justice Brennan noted in the 1987 case Houston v. Hill, "The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state." But Carroll's position stemmed directly from the dubious assumption at the heart of Chaplinsky. The justices implied that it would have been perfectly understandable for Bowering, upon hearing the epithets racketeer and fascist, to punch Chaplinsky in the face. They thought it was unrealistic to expect that a sworn peace officer would restrain himself in that situation.

The Court's subsequent decisions contradicted that premise, suggesting that police officers, given their training and experience, can and should resist the urge to meet words with violence. Still, if there is anything left to the "fighting words" doctrine, it is the assumption that violence is a natural, predictable, and even excusable response to offensive speech—a position that is hard to reconcile with the ostensible goal of keeping the peace.

The post The Enduring Fight Over 'Fighting Words' appeared first on Reason.com.

As New Jersey faces a major impending budget deficit in the next few years, Democratic Gov. Mikie Sherrill is asking lawmakers to fund a crusade against social media companies in the name of "online safety." 

During Sherrill's first budget speech on Tuesday, in which she said her state is facing a "$3 billion structural deficit," the governor warned of the ills of technology on kids. Big Tech "isn't just the Big Tobacco of our era," Sherrill said, "it's worse, and it's exactly the kind of situation where government has a role to play to keep our kids safe." 

To address this perceived problem, Sherrill is proposing setting aside $125,000 in the state budget for a new Office of Youth Online Mental Health Safety within the Health Department. This office would "research and make recommendations to guide responsible use of social media platforms among youth" in "preparation for New Jersey's first cell phone-free school year this fall." She also proposed spending $500,000 on a new Social Media Research Center to "study the impact of digital technology on young people's mental health."

It is unclear whether such a research center would be guided by genuine scientific inquiry or by anti-tech ideology. Sherrill already seems convinced that digital technology negatively affects youth mental health. During her speech, she declared, "In New Jersey, we're not going to rely on Big Tech to come clean about the harm these technologies cause. We are going to lead the way." 

While a growing number of state and federal lawmakers are asserting that social media undisputedly harms teens' mental health, not all research supports this narrative, as Reason's Elizabeth Nolan Brown has frequently pointed out. One 2022 Pew Research Center study presented a more "nuanced picture of adolescent life on social media," finding that most teens say social media can strengthen their friendships, while still acknowledging that there are other pressures that may come from being online. Only 9 percent of the teens surveyed said that social media has had a "mostly negative" effect on them personally, with the majority saying the effect has been neither positive nor negative, and 32 percent of those surveyed described their experience as mostly positive. This is not exactly the picture of doom and gloom painted by Sherrill. 

Even assuming that social media causes harm, government interventions have often led to infringements on online freedom in the name of protecting kids. The U.K.'s Online Safety Act, which requires platforms hosting any sort of material deemed harmful to children to verify users' ages, has effectively censored swaths of the internet for those unwilling to give the government sensitive data. In complying with the act, social media sites in the U.K. have restricted posts about Ukraine and Gaza, Substack posts, and Reddit forums. The U.K. has even attempted to impose its country's online safety rules on U.S. companies, so far with little success. Alarmingly, U.S. lawmakers are eagerly trying to implement these policies on their own constituents. Several states, including Utah and Texas, have attempted to enact similar age-verification laws that would restrict access to online speech, prompting legal challenges from free speech groups. 

Although Sherrill has not yet proposed age-verification laws, she signed an executive order on her first day directing state agencies to prioritize promoting online safety. The order calls for preventing "harms such as cyberbullying, deepfakes, online exploitation, and exposure to harmful or addictive content." 

New Jersey legislators seem ready to back Sherrill's campaign against Big Tech. In February, a trio of lawmakers introduced a bill that would require certain social media platforms to display a "black box warning" detailing the dangers of social media use whenever a user accesses a platform.  These sites would also be required to monitor user activity "for problematic behaviors," as determined by the commissioner of health, and would have to give that user resources related to their "problematic behavior." 

Faced with a budget squeeze, New Jersey lawmakers are gearing up to splurge on government-run crackdowns on social media platforms. In addition to wasting taxpayer dollars, these projects could infringe on New Jerseyans' rights. 

The post Facing a Budget Squeeze, New Jersey Decides To Go After Big Tech appeared first on Reason.com.

0:00—Fake drinks with Marco Rubio and Pete Hegseth

5:25—"Regime change curious" again, but this time in Iran

17:16—Elizabeth Warren is the villain again in the housing policy world.

33:11—What is "slopulism"? And how is it different than slop?

45:56—The U.K. is taking humans off currency.

56:04—Superpowers to help you move

1:01:57—Invisibility can be creepy, except in Harry Potter.

1:16:40—Is time travel fun? Which TV shows do it best?

The post Elizabeth Warren Ruins Housing Again; Iran War Endgame? appeared first on Reason.com.

Friends, a while back IJ researchers went hard trying to find data on whether food sold by home-based vendors is safe. And looking at seven states with relatively liberal laws, we found not a single verifiable instance of a foodborne illness that could be traced to cottage food. Anyhoo, that's all to say it's super great that this week Indiana passed a food freedom bill that will expand opportunities for home-based entrepreneurs and allow more delicious eats in the Hoosier state. Click here to learn more.

New on the Short Circuit podcast: Sam MacRoberts of the Kansas Justice Institute inspects the Fourth Amendment's inspection exception (and exceptions to the exception)—and takes some exceptions.

1. In naming a new police chief, Bergenfield, N.J. passes over its white deputy chief in favor of an Arab-American captain. Miffed deputy sues for racial discrimination under state and federal law. Third Circuit (per Judge Bove): We predict N.J. Supreme Court would follow U.S. Supreme Court in disavowing a rule making it harder for plaintiffs in the supposed majority group to bring discrimination claims. And there's plenty of evidence of intentional discrimination to send both state and federal claims to trial. Concurrence (also Judge Bove): I personally think it would also be unconstitutional if N.J. didn't abandon its rule.
2. If you've ever wanted to know how to collect a judgment in West Virginia—or what the differences are between a "writ of fieri facias" and a "suggestion"—this Fourth Circuit opinion is for you. You will also learn that you can't sue your bank for following a court order to pay your creditors.
3. The majority and dissent in this Fourth Circuit case spar over everything from piracy to the nature of the "territorial jurisdiction of the United States" in the course of deciding 2-1 that a Virginia company can be held liable under the Alien Tort Statute for torts arising out of the torture of detainees at Abu Ghraib during the Iraq War.
4. The writing was on the wall for the Fourth Circuit's 2024 en banc decision declaring unconstitutional West Virginia's exclusion of sex-change surgeries from its Medicaid plan once Skrmetti issued. And sure enough, the High Court GVRed, and the Fourth Circuit came out the other way: The law classifies based on medical diagnosis, not sex or transgender status, and applies evenhandedly to everyone. And the law, motivated by the state's concern about costs, satisfies rational basis review.
5. Man uploads files containing The Bad Stuff to his Google Drive account. Google tips off law enforcement, and a detective has a peek at a few files without a warrant. When law enforcement follow up months later, the man confesses and directs officers to incriminating evidence. Fourth Circuit: The initial peek was an unlawful search. He had a reasonable expectation of privacy in his account (knowing Google might take a look doesn't mean one expects the gov't to) and in the files (deepening a circuit split on whether Google's hash-matching algorithm destroys privacy in digital files). But the later-discovered evidence comes in. In prison, he must stay.
6. Did Sulphur, La. officials retaliate against a police captain for being too public about his polyamorous relationship? Fifth Circuit (unpublished): Maybe, but we can't rule out the possibility that he was demoted because he was really bad at his job. Case dismissed.
7. You guys know Judge Per Curiam over at the Fifth Circuit? Us neither, but we are pretty sure someone in chambers is super into CrossFit (see p. 3).
8. Trigger-happy residents of Canton, Ohio have the habit of shooting firearms into the air to celebrate the New Year. As a police officer responds to the sound of gunfire shortly after midnight, he sees a man firing some 39 rounds into the air. The officer gets spooked and shoots the man dead. His widow sues. Sixth Circuit: And the case must go to a jury. The officer's claim that he saw the man point the firearm in his direction is a disputed fact that, if false, would mean no qualified immunity.
9. This Sixth Circuit case is not that big of a deal. But it's about escheatment, and there's a guy on the staff here who really loves telling people that the word "cheater" is derived from the word "escheator" because of the widespread (seemingly correct) belief that the king's escheators were more interested in gobbling up property for profit than anything else. So, there you go. Tell your friends.
10. If you had just told us the name of the lead plaintiff and nothing else re: this Ninth Circuit case, we would have predicted a perfunctory defeat for said plaintiff. And yet! The Imperial Sovereign Court of the State of Montana prevails (for now), and the state's restrictions on drag queen (and king) story hours remain preliminarily enjoined.
11. Allegations: California first-grader, B.B., upon hearing a story about Dr. Martin Luther King, Jr., draws a picture of "all her friends holding hands" with the message "Black Lives Mater any life," and gives it to an African American classmate, who thanks her. Following a complaint from the recipient's mother, the principal tells B.B. that her drawing was "not appropriate" (and possibly "racist") and bars her from recess for two weeks. B.B.'s mother sues for First Amendment retaliation. District court: The drawing is not protected by the First Amendment. Ninth Circuit: It very much is.
12. The California Age-Appropriate Design Code Act requires providers of online services that are likely to be used by those under 18 to estimate the age of child users with a "reasonable level of certainty." The law imposes other restrictions on how the providers can use data or interact with children. Service providers challenge that law and secure a preliminary injunction. Ninth Circuit: Vacated in part. There's no problem with the age-estimation, but some of the other requirements are unconstitutionally vague.
13. Man confesses to murder after a 15-hour interrogation in Riverside County, Calif. A series of prosecutors are assigned to the case, and, upon digging in, request that it be dismissed. Each time, the boss refuses and reassigns the case. Finally, nearly four years after his arrest and months after someone else confesses to the crime, the man is released and a court declares him factually innocent. Ninth Circuit (unpublished): A bummer, but he can't sue a prosecutor for failing to dismiss charges (absolute immunity), and he can't sue the county for acting in the name of the people of the state.
14. Colorado law previously prohibited convicted felons from changing their legal name except for "good cause." While taking public comments on proposed legislation to clarify that good cause exists when a change in legal name is sought to conform a person's name with their gender identity, Colorado legislators demand that witnesses refrain from "using derogatory language or misgendering witnesses, or using a witness's deadname." Speakers whose comments are curtailed sue, alleging a violation of their First Amendment rights. Tenth Circuit: Absolute legislative immunity.
15. Allegation: Escambia County, Fla. cops don't take required steps to verify missing-child report before heading to home where the child might be found. They don't activate their lights or sirens and don't announce themselves when pounding at the door (at night). When the man who answers sees that it's the police, he immediately puts his gun down and out of reach, and he tries to comply with their conflicting commands by lying down. An officer attacks him anyway, causing injuries that require multiple surgeries and that end his career as a cable-line technician. Oof! The missing-child report was bogus—filed by the man's daughter's incarcerated ex. Eleventh Circuit (unpublished): QI for entering the home, but no QI for the gratuitous force, rummaging through drawers, and refusing to leave for almost an hour.
16. And in en banc news, the Sixth Circuit will reconsider its decision that Barren County, Ky. could be on the hook for an attack on jail inmate—that left him paralyzed—by two other inmates with histories of violence who should not have been in gen pop.
17. And in more en banc news, the Ninth Circuit will not reconsider its denial of qualified immunity to a North Las Vegas, Nev. officer who, about 18 minutes after losing sight of a domestic-violence suspect, jumped a nearby backyard fence to look for him. (He kills two dogs in the backyard, but QI for that). Eight judges dissent, arguing the pursuit was still hot enough to dispense with the warrant requirement.
18. And in additional en banc news, the Ninth Circuit will not … erm, well, "This is a case about swinging dicks."
19. And in amicus brief news: The Supreme Court has taken up geofence warrants, and we say that the lower courts' disagreements over whether a geofence is a "search" reflects decades of confusion and distortion—and that either way, this warrant flunked the Fourth Amendment's probable cause and particularity requirements by handing judgment calls to an investigating officer instead of a judge.
20. And in more amicus brief news: IJ is weighing in for AT&T and Verizon in their Supreme Court fight with the FCC, which would very much like the Court to believe that a judge and jury need not show up at the start of an adverse gov't proceeding, so long as they remain theoretically available at some point down the line. Our brief explains why Article III and the Seventh Amendment do not tolerate that bait-and-switch. And indeed, many small businesses cannot afford to survive an agency proceeding and then finance another round of litigation afterward in a real court with a real judge.

New case! IJ clients David and Debbie Ross (no relation to your humble editor) run a small tobacco farm in Kentucky, and in 2023 they were stunned to learn that the Dept. of Labor wants to fine them over $70k for a variety of supposed employment-related issues, including, and this is an actual quote from the agency's letter, for "[insert description of violation]." David and Debbie emphatically deny the allegations, and they want an Article III court to hear the case—something the Supreme Court recently said the Constitution guarantees. But DOL is pursuing creative arguments for why that decision is not binding and trying to punish the Rosses through its own in-house administrative adjudication system, where the rules are all stacked in favor of the agency. So this week the Rosses filed suit in a real court. Click here to learn more. Or click here for The Wall Street Journal editorial board's take.

The post Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal appeared first on Reason.com.

In Europe, it's not just making fun of a president's wife or making edgy jokes on social media that can lead to fines and jail time, but criticizing authoritarian leaders, too.

In early February, Rainer Zitelmann, a German historian and sociologist, received a letter from Berlin police informing him he was under investigation for violating Germany's criminal code by using "symbols of unconstitutional and terrorist organizations."

"I will turn 69 in June, and it is the first time in my life that I have come into conflict with the law," Zitelmann tells Reason. Zitelmann, who has written for Reason, wrote his doctoral dissertation on the evils of Nazism and its anticapitalist roots.

The post in question, which Zitelmann reshared, showed a side-by-side image of Adolf Hitler and Russian President Vladimir Putin. Hitler's speech bubble read, "Give me Czechoslovakia and I won't attack anyone else!" and Putin's read, "Give me Ukraine and I won't attack anyone else!" It was not the quote that put Zitelmann in trouble with the law, but Hitler's swastika armband.

pic.twitter.com/o2FGdmoPp8

— Rep. Don Bacon ???????????????? (@RepDonBacon) December 11, 2025

Under Section 86a of the German criminal code, it is illegal to distribute Nazi symbols and related expressions. This includes "flags, insignia, uniforms, slogans and forms of greeting." Violators of the law can be fined and face up to three years in prison. What was intended to prevent open neo-Nazi propaganda has been increasingly used to silence political opponents. 

"So far we do not know who reported me," Zitelmann says. "However, one can assume that it was one of the so-called 'Meldestellen' ('reporting centers') that have been set up all over Germany. There, citizens can denounce other citizens who have said something that is perceived as wrong."

Zitelmann's case is not unique. In 2025, police officers visited Norbert Bolz, a German media theorist and scholar, at his home and questioned him about an X post in which he mocked a left-wing newspaper by quoting the Nazi-affiliated expression, "Deutschland erwache!" (Germany, awake!). Commenting on his visit by Berlin police, Bolz said his house was searched because of the post and "young, nice police officers…ultimately gave me the good advice to be more careful in the future. I will do that and from now on only talk about trees."

In March, conservative journalist Jan Fleischhauer was placed under investigation for using the same phrase in a podcast about the newly established youth wing of the AfD, Germany's far-right political party. The investigation was dropped after Fleischhauer paid a fine in "the lower four figure range" to a charity, reports the Frankfurter Allgemeine Zeitung.

Unfortunately for Germans, such cases are becoming increasingly more common. In 2024, the most recent year for which data are available, the Federal Criminal Police Office registered 31,229 "propaganda offences," a 57 percent increase from 2023.

The Trump administration has been critical of European speech laws, even as it has cracked down on its own citizens' free speech rights. In an address at the Munich Security Conference last year, Vice President J.D. Vance said, "in Britain, and across Europe, free speech, I fear, is in retreat." He added, "democracy rests on the sacred principle that the voice of the people matters. There is no room for firewalls. You either uphold the principle or you don't."

Although he is "skeptical" of President Donald Trump on the topic of free speech, Zitelmann agrees with Vance. "The developments in Germany, but also in other countries such as the U.K., are becoming increasingly troubling," he says. "In the past, people like me were attacked through 'cancel culture.' That no longer works; it has lost its impact. So now the approach is to use more repressive state power."

Zitelmann says the state has, thus far, been slow with his case, and the investigation could take weeks or months before it's resolved. This has pulled him away from other projects, including his new book, which comes out this year. "I now have to spend the entire day talking about Hitler."

The post Police Investigate German Historian for Hitler-Putin Meme appeared first on Reason.com.

This is a common feature of contemporary debate: it is worse to use problematic language to describe something that to acknowledge how that thing is actually problematic.

First, the most salient example concerns abortion. For years, people were appalled when pro life advocates would display gruesome photographs and videos of abortions being performed. To this day, there is outrage at the detailed statement of facts in Gonzales v. Carhart about how partial birth abortions function. Justice Kennedy's majority opinion felt compelled to explain why he was using such graphic language: "The Act proscribes a particular manner of ending fetal life, so it is necessary here, as it was in Stenberg, to discuss abortion procedures in some detail." Here is an excerpt:

A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus. The steps taken to cause dilation differ by physician and gestational age of the fetus. A doctor often begins the dilation process by inserting osmotic dilators, such as laminaria (sticks of seaweed), into the cervix. The dilators can be used in combination with drugs, such as misoprostol, that increase dilation. The resulting amount of dilation is not uniform, and a doctor does not know in advance how an individual patient will respond. In general the longer dilators remain in the cervix, the more it will dilate. Yet the length of time doctors employ osmotic dilators varies. Some may keep dilators in the cervix for two days, while others use dilators for a day or less.

After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor, often guided by ultrasound, inserts grasping forceps through the woman's cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed.

Some doctors, especially later in the second trimester, may kill the fetus a day or two before performing the surgical evacuation. They inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic fluid. Fetal demise may cause contractions and make greater dilation possible. Once dead, moreover, the fetus' body will soften, and its removal will be easier. Other doctors refrain from injecting chemical agents, believing it adds risk with little or no medical benefit.

The real problem was that those abortions were actually being performed, not that judges accurately described them.

Can you imagine if Judge VanDyke included in his opinion a photograph from the record of a "swinging dick" in a women's spa? There would be outrage that VanDyke included the graphic photo, but silence about the fact that the photo exists. (I doubt any such photo exists in the record, but in a normal case, discovery would generally require showing what it is the plaintiff seeks to do, even in a redacted form.) How many members of the Ninth Circuit would take their young daughter to the Olympus Spa?

Second, there is almost a visceral reaction to "misgendering" a transgender person--even by describing the person's anatomy. There is even greater opposition to describing what happens at "Drag Races" and other "Drag Queen" story times where children are present. But descriptions of these actions are an effective way to demonstrate why governments seek to regulate them. Consider these findings of fact from Spectrum WT v. Wendler, a case from NDTX about a drag event at a public university where children could attend. Judge Matt Kacsmaryk spares no details:

The 2023 on-campus show "was to be emceed" by a man named Michael Arredondo, whose drag performer name is "Myss Myka." Spectrum WT v. Wendler, 151 F.4th 714, 719 (5th Cir. 2025) (citation modified), reh'g en banc granted, opinion vacated, 157 F.4th 678 (5th Cir. 2025). Michael "had performed in a highly sexual drag show" in February 2023, about a month before Spectrum's show would have taken place in Legacy Hall. Id. He also performed in the off-campus March 2023 show—and would have performed in Legacy Hall, had the show taken place there. Myss Myka's performances routinely veer into salacious, sexualized conduct. For instance, in a five-minute span during a February 2023 performance, he made the sign of the cross before gradually stripping off his angel costume, twerking, and graphically simulating male masturbation onto an audience member. He also squeezed his prosthetic breasts together suggestively and placed a spectator's hand on them. He ended his routine by grinding his near-bare crotch on another audience member, an act sometimes described as "frottage." Spectrum "d[id] not dispute" that Michael engaged in this behavior during its appeal of this Court's denial of a preliminary injunction. Spectrum WT, 151 F.4th at 719 n.2.

Spectrum expressly invited Myss Myka to host its 2023 and 2024 drag shows. Children—of any age—would have been present at these shows. Spectrum's only requirement was that minor children be accompanied by a parent or guardian. But Spectrum had no way to ascertain whether a child was accompanied by a parent or guardian, as opposed to any other adult. Nor could Spectrum have known whether participating PUP students were minors: PUP participants receive the same student ID as full-time West Texas A&M students, and those IDs do not list students' ages. Even professors do not know which of their students are PUP students.

Don't skim it. Read it. Elites will be appalled these words appear in a judicial decision, but not that this behavior actually exists in the presence of children. How many members of the Ninth Circuit would take their young children to this drag show?

The court also included photos. I include them after the jump, because they are not safe for work, but apparently were safe for children:

Third, it is verboten to use the phrase "illegal alien" to avoid offense, but progressives downplay actual crimes committed by illegal aliens. Consider this recent editorial in the Wall Street Journal about how a progressive prosecutor in Fairfax County declines to prosecute people who could be subject to deportation. His policy is to "consider immigration consequences where possible and where doing so accords with justice."

Police allege that Abdul Jalloh, an illegal alien from Sierra Leone and a violent repeat offender, exited a bus with Minter and then stabbed her to death at the bus stop. Mr. Jalloh had been arrested more than 30 times for a litany of serious offenses. Maj. Jeffrey Mauro of Fairfax County's Mount Vernon District Station reportedly said that his station alone had "numerous dealings with" the suspect, and Capt. James Curry of Fairfax County Police said the department had "178 involvements" with him. Mr. Jalloh's criminal history includes five malicious-wounding charges—Virginia's equivalent of attempted murder—and three assault-and-battery charges. Mr. Descano's office dropped all but one of those charges. In the case in which Mr. Descano secured a conviction, Mr. Jalloh was sentenced to seven years, five of which were suspended.

While out on bond awaiting sentencing, Mr. Jalloh allegedly committed another stabbing. Then, within weeks of his release, he allegedly committed another. Released emails show that police urged prosecutors to pursue charges against Mr. Jalloh. Mr. Mauro of the Mount Vernon office wrote to Descano deputy Jenna Sands last year that Mr. Jalloh's behavior "appears to be escalating and becoming more violent and explosive" and that he was concerned it was "not a question of if, but rather when he will maliciously wound (or worse) again." Instead, Mr. Descano's office dropped the new charges and terminated Mr. Jalloh's supervision months before he allegedly murdered Minter.

I am not making any broad claims about whether illegal aliens are more or less likely to commit crimes than American citizens. My point is different. When such crimes occur, they should not be diminished for political purposes. These crimes should inform debates about immigration policy.

Fourth, I have long studied the phenomenon of mass shootings. My 2014 article, The Shooting Cycle, explains how much of the opposition to mass shootings follows a predictable political cycle. If the assailant fits the right mold--white and conservative--the story will dominate the headlines for a long time. But if the perpetrator falls into some "oppressed" demographic, the story vanishes. Moreover, the media demonstrates little curiosity in investigating why the person came to be a mass murderer. My long-held suspicion is that the media is so adverse to describing minorities in negative language that they avoid discussing their heinous acts. Focusing on a person's religion or calling them an illegal alien is beyond the pale. So to avoid feeding into that narrative, it is better to simply ignore what they've done.

Consider a few recent terrorist attacks involving naturalized citizens who committed acts of terror. There was a shooting at a popular bar in Austin that started blowing up on my news feed. Then it turned out the assailant was a naturalized citizen from Senegal, who was wearing a "Property of Allah" hoodie, had an Iran flag T-shirt during attack, and had photos of Iranian leaders at home. The story vanished. There was a shooting at Old Dominion University in Virginia that seems to already have been forgotten. The assailant was a naturalized citizen from Sierra Leone, had previously been convicted of supporting the Islamic State, and yelled "Allahu Akbar" during the attack. Did you hear these facts? Thankfully, members of the ROTC subdued and killed the assailant. Otherwise he would have inflicted more bloodshed. Just yesterday, a naturalized citizen from Lebanon drove his car into a Michigan synagogue and school, intent on killing as many Jews as he could. Thank the Lord there were no casualties, but Jewish students across the country now fear going to school. This story will be off the headlines by Monday. But maybe, just maybe, there is a problem with naturalized citizens engaging in acts of terror. There is less that can be done about homegrown terrorists, but something be done about admitting those who are or become radicalized. Can we discuss it or is that just hateful?

The problem with speech codes is that they prohibit people from talking about the actual world. Using euphemisms signals that society is unwilling to address problems. And this asymmetry only goes one way. Liberals can speak, conservatives cannot. For that reason, I appreciate Eugene Volokh's policy of not expurgating offensive language.

The post The Penis Mightier appeared first on Reason.com.

In an order imposing sanctions on Scott Mitchell Obeginski for citing fictional authority in Trial Court Cause Number 24-11-18234, the trial court ordered Obeginski, when making "any filing of any plea, pleading, motion, brief, or similar" in any capacity to "include with each filing with any and all Court(s) or Clerk(s) as attachments a copy of any and all legal authorities cited in the filing highlighting the portion of the legal authority attached which supports the proposition for which he cites the legal authority."

In a mandamus petition, Obeginski contends the trial court's directive is "an act far exceeding its jurisdiction" and argues that the trial court abused its discretion by failing to exercise its ministerial duty to vacate the order after "the loss of plenary power." Obeginski argues mandamus relief is appropriate to alleviate harm from "an unconstitutional restriction on court access." {The Order made additional rulings and imposed additional sanctions, but only the order to provide copies of cited case authority is at issue in this mandamus proceeding.} …

The trial court had personal jurisdiction over Obeginski and the inherent power to sanction him for his improper conduct in [that court]. Thus, the trial court possessed the authority to sanction Obeginski for citing fictitious legal authority in his filings in [that case]. The larger question is whether the trial court possessed the authority to require Obeginski to attach a copy of the legal authorities cited in a filing Obeginski makes with any court, not just the [trial court that issued the order].

Generally, for a sanction to be just a direct relationship must exist between the offensive conduct and the sanction imposed, and it must not be excessive. Here, the offensive conduct was repeatedly citing fictious cases. Ordering the person who cited fictitious cases to attach highlighted copies of the cited cases to his filings relates directly to the abuse found. Under appropriate circumstances, "just sanctions" includes "the authority to issue injunctions to control a party's actions in another court." {A trial court's order directing a party to file supporting authority in a higher court could potentially interfere with the appellate court's jurisdiction, but … [n]othing prevents this Court from reviewing the sanctions order on appeal and deciding then whether Obeginski must file copies of his cited case authorities with the appellate court.}

Obeginski argues the trial court has placed an unconstitutional restriction on his access to courts. He does not explain how the trial court's command that he attach his supporting authority when he cites a case in a court proceeding encumbers his right to access courts. He has identified no language in the trial court's order that prevents him from petitioning any court at any time, and he describes no technical burden that makes including copies of cited case authority an impediment to his access to courts….

The post Litigant Who Cited "Fictional Authority" Ordered to Include All Cited Authorities in Future Filings in Any Court appeared first on Reason.com.

Gabriel Boric, the former student radical who rode a wave of left-wing unrest into Chile's presidency in 2021, left office Wednesday, replaced by José Antonio Kast, a right-wing populist who secured a landslide victory last December. Boric's election was supposed to be a watershed moment for a country long held up as Latin America's free market success story; it appeared Chile was repudiating the liberal economic model that had defined it for decades. Yet the leftist project collapsed under its own weight, and the Chilean pendulum has since swung violently in the opposite direction. But Kast arrives with a different set of dangers.

The story begins in the 1970s, when Chile transitioned from socialism to free market capitalism during the murderous dictatorship of Augusto Pinochet. Under Pinochet's predecessor, the socialist President Salvador Allende, the inflation rate had reached over 600 percent, and the nation's economy had been on the verge of collapse. That origin left an indelible stain on what became one of the greatest economic success stories of the past half-century. Chile's free market reformers struck a Faustian bargain with the Pinochet regime: In exchange for looking the other way as thousands were tortured and disappeared, they were granted enormous latitude to slash regulations, cut tariffs, and privatize state-owned companies.

But voters eventually opted to continue Chile's laissez faire economic agenda. For 30 years following Chile's 1990 transition back to democracy, left-of-center governments doubled down on free market policies, and the nation prospered. From 1990 to 1998, the poverty rate was cut nearly in half, while extreme poverty plummeted from around 13 percent in 1990 to about 6 percent. By the early 2000s, Chile had become one of the region's wealthiest countries.

In 2014, President Michelle Bachelet began to erode Chile's pro-market agenda, but policies such as private pensions, low tariffs, and light-touch regulation remained in place. The country had become "a case study in institutional resilience," Chilean economist Víctor Espinosa tells Reason. The free market order had become an institutional framework too deeply embedded and too economically valuable to dismantle easily.

By the 2010s, Chile was still outperforming every other Latin American country, but income inequality and corruption scandals were fueling a left-wing resurgence. Central to that backlash was the pension system. When the system of individual savings accounts (AFPs) was launched, officials indicated that it would generate pensions equivalent to 70 percent of a worker's salary at retirement. This 70 percent replacement rate became an "implicit promise" ingrained in the public's mind.

But the promise didn't hold. For the median worker, the replacement rate was less than 35 percent. For those with spotty work histories and low contribution density, self-financed pensions could amount to as little as 4 percent of their salary. On average, pensions hovered around 25 percent of final years' wages. The mandatory savings rate of 10 percent was "obviously too low" compared to the OECD average of 19 percent, as economist Sebastián Edwards describes it in The Chile Project. Life expectancy in Chile increased by 11 years between 1981 and 2021, but the retirement age stayed fixed, meaning the same volume of savings had to stretch over a much longer retirement, inevitably shrinking monthly payouts. Workers were excluded from AFP boards, fueling a sense that the pension system was something being done to them, rather than for them.

Chile's economic model faced a crisis of legitimacy. The country was still richer and more stable than its neighbors, but many Chileans judged the system by its perceived failures, especially the sense that the gains of growth were distributed too unevenly. The pragmatic formula for prosperity looked to its critics like an aging consensus, the legacy of a dictatorship, that no longer commanded public loyalty.

In October 2019, nationwide protests culminated in widespread vandalism, arson, and sustained clashes with police. What began as a fare hike dispute evolved into a broader rejection of the political establishment and laissez faire economics. In the streets of Santiago, Chile's capital, opposition to "neoliberalism" was inseparable from the moral indictment of the post-Pinochet order. Protest slogans such as "it's not about 30 pesos, it's about 30 years" framed the unrest as a social rebellion against the three decades of transition-era consensus. To many demonstrators, Chile's market institutions were inseparable from the dictatorship that had first imposed them.

A former firebrand student leader, Boric, emerged as the millennial face of a radical new left in Chile. His Apruebo Dignidad coalition represented an uneasy alliance between Boric's own progressive Broad Front and the orthodox Communist Party. Boric framed the 2019 social unrest as a decisive break from the free market model pioneered by the Chicago Boys. "If Chile was the cradle of neoliberalism," he famously declared, "it will also be its grave." To the international left, his December 2021 victory looked like an opportunity to dismantle Latin America's free market experiment. By the time he took office, the movement to bury the Pinochet-era constitution was already underway.

Along with Boric's rise, there was the threat of a new constitution. To help restore order, President Sebastián Piñera had agreed to a referendum in which voters would decide whether to toss out the Pinochet-era constitution and start from a blank slate. Seventy-eight percent of voters came out in favor of launching a Constitutional Convention to begin the process.

The Constitutional Convention quickly turned into a farce. Two delegates attended sessions dressed as Pikachu and a blue dinosaur. Another delegate delivered a speech in the form of a folk song. The draft constitution that emerged comprised 388 articles, enumerating 103 social rights (more than any constitution on earth), including the right of glaciers not to be disturbed and a state obligation to promote the use of seeds historically used by Indigenous peoples. It declared Chile a "plurinational" state, created 11 separate justice systems, one for each officially recognized Indigenous people, and abolished the Senate.

And then voters reversed course. The draft constitution was rejected by a wide margin in a national referendum. A second attempt at a new constitution, drafted this time by a right-leaning convention, was also rejected in 2023. Chileans, it turned out, didn't want a radical remaking of the social order.

Boric did succeed in expanding the size and scope of the Chilean government. His government raised the minimum wage and expanded cash transfer programs. The most consequential reform came in the final year of his term when Congress passed a long-stalled pension reform that replaced Chile's predominantly individualized system, a flagship of the economic miracle. Instead, it created a mixed model that added mandatory employer contributions and gradually raised total contribution rates. Boric's signature tax reform, intended to finance a significant expansion of social services, was diluted. Promises of a broad social services upgrade gave way to incremental changes, hemmed in by budget constraints and a Congress that wouldn't play along.

Chilean economist Espinosa says Boric's agenda ultimately fell far short of expectations. "The distance between what was promised and what was implemented," Espinosa says, "is among the largest since the return to democracy." Boric's half-kept promises helped drive the pendulum in the opposite direction. The two failed constitutional processes, Espinosa argues, suggested that a social majority had come to see the problem not as the constitution itself, but as its use as an instrument for imposing a socialist project incompatible with growth and economic freedom.

What that rejection produced was a sharp lurch toward a different danger. Chileans were right to refuse a maximalist left-wing project that treated social frustration as an argument for dismantling economic freedom. But Boric's failure is not a vindication of the illiberal right. If the Chilean left tried to discredit the country's market order by portraying it as unjust, Kast risks discrediting it all over again by tying it to authoritarian nostalgia.

Kast, who takes office after a decisive presidential victory, is not a conventional conservative correction to Boric. He campaigned on fiscal austerity, reduced public spending, and incentives for investment, presenting himself as a defender of Chile's economic institutions. Yet he is also a right-wing populist with open admiration for Pinochet: He voted "yes" in the 1988 plebiscite to keep him in power, said in 2017 that Pinochet "would vote for me if he were alive," and has floated pardons for some former regime officers imprisoned for human rights abuses.

That nostalgia helps explain the hard-edged politics of order and exclusion that run through his agenda. Kast warned the roughly 340,000 undocumented immigrants to leave voluntarily before his inauguration, after which they would face prosecution or deportation. He has proposed fortifying Chile's northern border and creating an ICE-style enforcement agency to carry out mass deportations. He opposes abortion and same-sex marriage. He wants to emulate El Salvador's Nayib Bukele by deploying soldiers in gang strongholds and dramatically expanding the prison system.

Chile's free market miracle survived two attempts to rewrite the constitution and a president who promised to bury the framework that made the country prosperous. Its deepest strength was that, for decades, democratic Chile chose to preserve and adapt the institutions that generated growth. That democratic legitimacy is the model's greatest protection. Kast's danger is that he could once again fuse economic liberalism to nationalist reaction and Pinochet nostalgia. If that happens, the backlash Boric rode to power will return in a new form.

The post How Chile's Free Market Miracle Survived a Resurgent Left appeared first on Reason.com.

Nadine Realme tripped and suffered an injury in a San Antonio park while participating in a community Thanksgiving "fun run" known as a turkey trot. She sued the City, claiming its negligent maintenance of the park caused her injury. But according to Texas's Recreational Use Statute, TEX. CIV. PRAC. & REM. CODE § 75.002(f), the City is not liable for ordinary negligence when a person "engages in recreation" on government property. Is a holiday-themed community footrace "recreation"? We hold that it is, and we reverse the contrary decision below.

There is a lot of analysis about when the canons of construction apply, and when they do not. I find that one of the biggest mistakes that students make is jumping to the canons too quickly before doing the hard work of carefully reading the statute. And if you read to page 7 there is a discussion of the different types of vehicles, but nothing about whether those vehicles can be in a park.

The post The First Opinion From Justice Hawkins on the Supreme Court of Texas appeared first on Reason.com.

On September 10, 2025, well-known podcaster Charlie Kirk was shot and killed during an event at a university in Utah. That same evening, the Plaintiff, who worked at the University of Mississippi as the Executive Assistant to the Vice Chancellor for Development, reposted on her personal social media account a statement regarding Kirk.

For decades, yt supremacist and reimagined Klan members like Kirk have wreaked havoc on our communities, condemning children and the populace at large to mass death for the sake of keeping their automatic guns. They have willingly advocated to condemn children and adult survivors of SA to forced pregnancy and childbirth. They have smiled while stating the reasons people who can birth children shouldn't be allowed life-saving medical care when miscarrying. They have incited and clapped for the brutalizing of Black and Brown bodies. So no, I have no prayers to offer Kirk or respectable statements against violence.

The statement garnered a great deal of attention and was widely commented upon and negatively received. The Plaintiff removed the statement from her account four and one-half hours later and posted an apology….

Stokes was fired, and the court concluded the firing likely didn't violate the First Amendment:

The Pickering v. Bd. of Ed. balancing test [applicable to government employers' decisions to fire or discipline employees based on their speech -EV] requires courts to weigh both the "the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions." The Supreme Court has further explained that "[a] government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations."

In conducting this balancing test, the Court considers "whether the speech was likely to generate controversy and disruption, impede the defendant's general performance and operation, and affect working relationships necessary to the defendant's proper functioning." The Supreme Court has also previously recognized as pertinent considerations "whether the statement … impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." Ultimately, the Court must weigh the Plaintiff's rights to speak on matters of public concern versus "the effective functioning of the public employer's enterprise."

Crucially, the Supreme Court has explained it is not necessary "for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action." Rather, "courts have consistently given substantial weight to government employers' reasonable predictions of disruption, even when the speech involved is on a matter of public concern." …

The Plaintiff's post was shared broadly on social media and eventually captured the public's attention; indeed, the reaction to the Plaintiff's social media post, according to her own testimony, was swift and substantial. Both personally and via her University email account and voicemail, the Plaintiff received a significant amount of hate mail, phone calls, and emails, many of which were threatening in nature. The Plaintiff herself testified to the level of disruption the post caused her, both personally and to her ability to conduct her job duties at the University. The Defendant presented evidence showing that the disruption and threat of further disruption ultimately caused him to conclude that the Plaintiff's "departure from the University was needed to resolve the disruption to the University's operations." Boyce further believed the University "needed to act quickly" to end the disruption to the University's operations. The disruption included the cancelling of a student phone bank event, disruption to the University's social media presence, the inability of the Development Office (where the Plaintiff was employed) to focus on its work rather than monitoring the response to the Plaintiffs post and managing the University's response, and the necessity for the University Police Department to patrol the area around the Development Office in light of the Plaintiff's post and given employees' fear for their personal safety.

In addition to the Defendant Boyce's statements regarding the disruption the Plaintiff's post caused the University, the University's Vice Chancellor for Marketing and Communications, Lisa Stone, provided evidence that the impact upon the Development Office's operations were significant and were continuing throughout the morning of September 11, 2025, without any end in sight. Further, the Plaintiff's direct supervisor at the University, Charlotte Parks (the University's Vice Chancellor for Development), detailed several of the ways the Plaintiff's post disrupted the Development Office, including disruption to other employees in the Office and the necessity for a former University employee to be called in to help perform the Plaintiff's work duties given the inability of the Plaintiff to report to work and perform her work duties.

The Court finds this evidence demonstrates the Plaintiff's speech disrupted the efficiency of the services the University performs through its employees. Further, it is clear to the Court the Plaintiff's post was "likely to generate controversy and disruption, impede the defendant's general performance and operation, and affect working relationships necessary to the defendant's proper functioning;" it is further clear to the Court the Plaintiff's post "impeded the performance of her duties" and "interfered with the regular operation of the enterprise." …

Here's part of what I wrote about the issue shortly after Kirk's murder:

[L]ower court cases [dealing with government employee speech] … have routinely turned on whether the speech created enough public controversy. When the government is administering the criminal law or civil liability, such a "heckler's veto" is generally not allowed: The government generally can't shut down a speaker, for instance, because his listeners are getting offended or even threatening violence because they're offended. But in the employment context, the Pickering balance often allows government to fire employees because their speech sufficiently offends coworkers or members of the public. (The analysis may differ for public university professors, though it's not clear how much; see this post for more.)

This conclusion by lower courts applying Pickering might, I think, stem from the judgment that employees are hired to do a particular job cost-effectively for the government: If their speech so offends others (especially clients or coworkers) that keeping the employees on means more cost for the government than benefit, the government needn't continue to pay them for what has proved to be a bad bargain. Maybe that's mistaken. Maybe it's so important to protect public debate, including on highly controversial matters, that public employers should have to keep on even the most controversial employees (see this article by Prof. Randy Kozel, which so suggests in part). But that appears to be the rule.

We see this, for instance, with statements that are allegedly racist, sexist, antigay, antitrans, etc.: If they cause enough public hostility, or seem highly likely to do so, then courts will often allow employees to be fired based on them. But if they largely pass unnoticed except by management and perhaps just a few people who file complaints, then courts are much more likely to hold that the firings may violate the First Amendment (see, e.g., this post and this post, though there are many other such examples).

There are other factors that courts consider, to be sure: For instance, if the employer can show that a person's speech shows they are unsuited to the job, that makes it easier for the employer to prevail. But even there the magnitude of public reaction is relevant, because one common argument is that one trait required for certain employees is the ability and willingness to instill confidence and respect in coworkers and clients, rather than to produce outrage and hostility.

And while some have tried to distinguish, say, racist speech from other speech on the grounds that it shows the speaker is likely to unfairly treat clients or coworkers who belong the groups he condemns, one can say that about many kinds of speech: Speech praising the killing of people who publicly advocate for certain views may be said to show the speaker is likely to unfairly treat members of the groups. (Such unfair treatment may often be illegal, especially by public employees, but in any event will often be unethical and contrary to the employer's mission.) As a result, the magnitude of the public reaction, which is often measurable rather than speculative, ends up playing a major role.

This creates an unfortunate incentive: Like any heckler's-veto-like rule, it rewards would-be cancellers, if they only speak out often enough and with enough outrage. But rightly or wrongly, that is how these cases generally shape up.

Note also that, according to the Complaint, Stokes' "tasks were administrative only:­ She managed Parks's calendar, arranged her travel, scheduler her recurring meetings, reserved her lunches and dinners with donors or other constituents, and processed requests for tickets to events."

J. Cal Mayo Jr. and Paul Bowie Watkins Jr. (Mayo Mallette PLLC) represent the defendant.

The post Yet Again with the Heckler's Veto in a Government Employee Speech Case appeared first on Reason.com.

MAGA's philosophical twists and turns are hard to follow given that whenever Donald Trump changes his mind his supporters have three go-to approaches. First, they claim his latest notion is part of a 3D chess game even if, by all appearances, Trump would struggle to play one-level tic-tac-toe. Second, they distract our attention: Didn't Barack Obama do this, too? Third, they get with the program and shamelessly back whatever the president is doing.

Sometimes MAGA-supporting influencers with their own agendas and philosophies take issue with some Trump policy. But rank-and-file MAGA always follows the Dear Leader even if it means contradicting some Deeply Held Principle they espoused weeks ago. The closest MAGA has to a firm belief set—outside of scapegoating immigrants—involves war and peace. I figured MAGA supporters were halfway serious about their often-touted goals of noninterventionism.

Then, boom—quite literally. MAGA cheered as Trump deposed the Venezuelan dictator to promote "freedom," although the administration bypassed the democratic resistance and replaced him with another authoritarian. They high-fived as Trump vowed to take over peaceful Greenland. Now "anti-war" paleoconservatives sound like the pro-war neoconservatives they've long criticized after the United States and Israel attacked Iran for a still-unclear purpose. And don't you dare bring up congressional war-powers authorization, as the Constitution requires.

Trump has long touted himself as the peace candidate. Before 2020, he warned that Joe Biden might start World War III. White House adviser Stephen Miller posted that "KAMALA WILL SEND YOUR SONS TO WAR" if she won. We know the president's determination to receive a Nobel Peace Prize—even a second-hand one—and his joyful acceptance of the international soccer league's toddler-appeasing peace prize, which seemed like something lifted from "Idiocracy."

Vice President J.D. Vance has also pivoted repeatedly to serve a man he once called America's Hitler. Nevertheless, Vance is unquestionably smart and, more than perhaps anyone else in this kakistocracy-like administration, has carefully detailed the case for opposing America's endless international interventions. I always thought his foreign-policy views, though often misguided, were at least heartfelt.

In a Wall Street Journal column in 2023, then-Sen. Vance argued Trump would break the consensus where U.S. officials tossed out "slogans about 'freedom' and 'democracy' while starting world-historic catastrophes in the Middle East." He preferred "reminding leaders in both parties that the U.S. national interest must be pursued ruthlessly but also carefully, with strong words but great restraint."

Well, so much for restraint. As the New York Times reported, Vance "argued in a White House Situation Room meeting that if the United States was going to hit Iran, it should 'go big and go fast,' according to people familiar with his remarks." In fairness, nationalist, populist Republicans have never really opposed military actions. They mainly oppose the regime-change, endless-war missions that our country has undertaken since Woodrow Wilson.

By the way, these folks are no friends of freedom and democracy, which helps explain why their "peace" stance in Ukraine aligns seamlessly with Moscow's, as they essentially argue the best way to stop the tragic killing is for victims to lay down their arms and submit to an invader. Trump and MAGA have even blamed Ukraine and NATO for Russian aggression and warned that U.S. support could spark the next world war. At least I can contort their position, however muddleheaded, into some anti-war narrative. But Iran? A war of choice seems more likely to spark widespread convulsions.

This is hardly America First. Furthermore, the administration's rationales keep changing. Apparently, the United States had to stop an imminent threat of Iran gaining nuclear weapons, although Trump had previously asserted that his limited previous air attacks on the country had already accomplished that goal. As others have noted, Iran is an "imminent" threat that's been imminent for decades. The country has been a source of relentless mischief, although MAGA used to argue it's not our role to launch special military operations against the world's many mischief-makers.

Trump also said the attacks would protect the Iranian people after the mullahs brutally repressed recent protests. Then he acknowledged that the new boss might be as bad as the old boss. Not that MAGA or Trump have shown the slightest concern about human rights, here or abroad. Whatever their real motives, this reminds me of George W. Bush's Iraq folly, which was followed by years of chaos and violence. Ironically, that war emboldened Iran, as the vicious Iraqi strongman was a regional counterbalance to the vicious mullahs.

We can expect the usual: a destabilized region, years of unforeseen and negative consequences, billions of lost American dollars, and lost lives. The one tiny potential upside of the populist movement was its apparent reluctance to plunge the nation into foreign debacles. That's gone now, but it shouldn't be a surprise given that MAGA isn't so much a political philosophy as a cult of personality.

This column was first published in The Orange County Register.

The post Trump and Vance Promised 'No New Wars.' What Happened To That? appeared first on Reason.com.

Bye-bye to build-to-rent housing. On Thursday afternoon, the U.S. Senate voted 89–10 to pass House Resolution 6644, otherwise known by its cumbersome title, the 21st Century ROAD to Housing Act.

The bill is essentially an amalgam of two pieces of wonky housing legislation that the House and Senate have been working on for over a year now, and which make a bunch of modest changes to existing regulations and grant programs with the aim of boosting housing supply.

As passed by the Senate, H.R. 6644 combines the two chambers' reforms and, controversially, includes a ban on large institutional investors purchasing new single-family homes and converting them into rental housing.

That latter provision likely turns the bill from one that would modestly increase new home construction to one that will significantly reduce new home construction.

Estimates vary, but build-to-rent housing comprises anywhere from 3 to 10 percent of new single-family home construction.

Earlier this week, H.R. 6644 was amended to include a policy that would require large investors to sell any build-to-rent units they own after a period of seven years. This provision is part of the bill's wider crackdown on large institutional investors owning single-family rentals.

These investors have become a scapegoat for high housing prices among both the right and the left. President Donald Trump called on Congress to ban their ownership of single-family homes in his State of the Union address. Sen. Elizabeth Warren (D–Mass.), one of the authors of the Senate housing legislation, was happy to oblige.

The alleged hope was that adding an investor crackdown supported by the White House would get the House to pass the amended H.R. 6644 quickly. That doesn't seem to have worked.

The House Freedom Caucus has already come out against the bill because of its exclusion of some community banking reforms the House wants, as well as the investor crackdown provisions.

That means it's likely due for rounds of amendments. Any delay in an election year means it might end up not passing at all.

Why this matters. In response to the bill's passage in the Senate, anti-market commenters on social media have leapt to defend the effective ban on build-to-rent housing and accuse the ban's critics of motivated inconsistency.

Reporter Ryan Grim best sums up this attack line in an X post from yesterday, in which he says that housing supply-siders have been downplaying the significance of "private equity" in the single-family market, only to now freak out about the crackdown on build-to-rent housing.

We spent the last few years being told by the Abundance types that the whole thing about PE buying up so many houses is a fake, made up panic. Now they're saying the housing bill just passed is a big problem because it would crimp that build-to-rent market, which we were…

— Ryan Grim (@ryangrim) March 12, 2026

Oren Cass, chief economist of American Compass and apparently determined to never be on the right side of an issue, argues that a ban on build-to-rent housing can't reduce housing supply because such a ban does not vaporize land, workers, and materials that could be employed for new home construction.

2/ BTR does not bring some new and marginal supply online where we otherwise would have nothing. To the contrary, BTR firms are operating in a supply-constrained market -- for land, for permits, for workers -- where we're trading off different types of construction.

— Oren Cass (@oren_cass) March 12, 2026

To take the latter point first, it's true that policy alone does not physically destroy the things that are used to build new homes. Contra Cass, policy can make market actors a lot less likely to finance the construction of new homes.

Which is what a ban on build-to-rent housing would do.

There are hundreds of thousands of families out there that would like to live in a new single-family home but do not want, or cannot qualify for, a mortgage. The build-to-rent market has popped up to service this niche of home-seekers.

Unable to meet the needs of single-family renters, investors will thus move their capital elsewhere. Perhaps some of that capital goes into for-sale housing or apartment development—likely, much of the capital leaves the housing market altogether.

Contra Grim, this can be a big deal, despite "private equity" and/or large institutional investors not being a major presence in the single-family market.

As has been pointed out ad nauseam, large investors own less than one percent of single-family homes. They buy maybe two or three percent of single-family homes sold each year. In more recent years, they've been net sellers of single-family homes.

The vast majority of homes sold (some 80 percent) are bought by individuals. The rest are purchased by smaller investors, most of whom own less than ten units.

Because large investors buy such a small share of existing single-family homes each year, it doesn't make sense that they would be the main obstacle to individual families purchasing an existing home of their own.

As mentioned, in addition to buying existing homes, large investors also finance and own build-to-rent communities that would not exist otherwise. Estimates vary, but build-to-rent housing comprises between 3 and 10 percent of new single-family homes built each year.

Banning build-to-rent housing would thus result in a significant reduction in new home development. One can understand why housing supply-siders would object to such a policy, particularly since it's being included in a bill intended to boost the rate of new home construction.

One needn't resort to conspiracy theories to explain the backlash on social media.

Scenes from D.C.: After a balmy 86-degree day on Wednesday in our nation's capital, it snowed yesterday.

I left an 80 degree D.C. two days ago, and just flew home to this.

Pls fix @capitalweather pic.twitter.com/YaZeP6i4Z1

— Brittany Prime (@PrimePoliticker) March 12, 2026

That's as good enough evidence that the government probably does not control the weather, because who would plan such wild swings?

QUICK LINKS

• You can tell the Iran war is going well when leaks start claiming Vice President J.D. Vance opposed it all along.
• A tanker plane has crashed in Iraq, killing four service members.
• Consumer prices were already on the rise before the Iran war choked off Gulf oil supplies.
• New York City considers a $30 minimum wage.
• I've seen worse ideas.

I have a plan. pic.twitter.com/HROyHy4QoM

— TelepathicPug (@TelepathicPug) March 12, 2026

The post Bye-Bye Build-To-Rent appeared first on Reason.com.

The National Aeronautics and Space Administration (NASA) faces delays in meeting its schedule for returning to the Moon, according to a new report by the agency's inspector general. Nevertheless, the project moves forward and remains largely within its budget—a testament to the abilities of SpaceX and Blue Origin, the two private companies participating. In fact, space exploration is largely a private effort these days, with profit-seeking firms developing not just launch capability but also technology for mining Earth's natural satellite.

Does the Lunar Environment Really Need To be Preserved?

Unfortunately, opening new commercial opportunities—even in the depths of outer space—is like ringing the dinner bell for bureaucrats and would-be regulators.

"Despite evolving technical capabilities, the international legal framework governing exploitation of the Moon is both very limited and frozen in the Cold War era," the RAND Corporation's Adam Urwick and Jessie Osborne fret in a recent commentary after discussing space developments. "The pursuit of profit raises paramount scientific and environmental concerns. Astronomers caution that large-scale mining activities could disrupt ongoing research and preservation of the lunar environment, leading to calls for development of comprehensive lunar laws and regulations to manage these activities responsibly."

Earth's moon is a dead place where nobody currently does anything. There is nothing to disrupt, let alone an environment to worry about unless you want to elevate the occasional boot print or tire tread in lunar dust to the status of a problem. The pursuit of profit there should raise no concerns beyond those of investors seeking returns—and investors and space ventures are looking for opportunity, assuming it's not strangled by red tape.

Looming Opportunities for Commercializing Space

Last year, Interlune and Vermeer Corporation revealed they've developed a full-scape prototype of an excavator "designed to ingest 100 metric tons of Moon dirt, or regolith, per hour and return it to the surface in a continuous motion. Interlune's immediate focus is harvesting helium-3 from the Moon." Interlune has since signed a contract with the Air Force to deliver lunar helium-3.

The partnership between Interlune, a space technology startup, and Vermeer, an established manufacturing company, illustrates the seriousness with which industry views the prospect of tapping into space resources. Rio Tinto, an Anglo–Australian mining giant, sees its expertise in automated mining as an advantage when it comes to extracting resources in space. The company joined an industry consortium to take its abilities off-planet. It's well-positioned to succeed in a new environment.

"While venture capital pours into space startups promising to revolutionize lunar resource extraction, the real winners may well be companies that have spent 150 years turning rock into revenue: Rio Tinto, BHP, Glencore and their peers," Stirling Forbes, a space industry investment matchmaker, wrote last October for Space News. "Lunar mining is fundamentally a resource extraction problem that happens to occur on the moon. Space startups excel at getting there. But once you land, the hard part is mining — and that's where most space companies have zero experience."

Private Companies Already Dominate Space Launches

"Getting there" is a challenge that private companies have been handling for years. NASA's role is now largely confined to planning missions and then picking among private vendors to do the—literal—heavy lifting. SpaceX has done most of the work, though Blue Origin is a player. Nipping at their heels are companies like Firefly Aerospace, which this week delivered a payload to orbit for Lockheed a year after successfully sending an unmanned lander to the Moon.

A hurdle for NASA's planned Artemis return to the Moon is that it's intended to introduce a permanent human presence on the satellite. That requires the unprecedented feat of in-space refueling. "SpaceX will be challenged to complete required milestones ahead of the Artemis III mission, starting with Starship's next major milestone—a large-scale, vehicle-to-vehicle cryogenic propellant transfer test," according to the NASA Inspector General. "This test was planned for March 2025 but has been delayed 12 months to March 2026."

Nobody really doubts that refueling in space will be accomplished. The question is whether it can be done before China sends its own manned mission there around 2030. SpaceX and Blue Origin are both making progress, according to the report, with the companies' costs increasing by only 6 percent and 1 percent, respectively. Worries over the project's status are mostly matters of flag waving.

As suggested by industry assessments and announcements by private firms, humans will return to the Moon one way or another, even if in the form of mining robots.

"There's certainly reasons to go to the moon that go back to national prestige, national security, some of the reasons we've always gone to space," Matt Weinzierl, a Harvard Business School economist and co-author of Space To Grow: Unlocking the Final Economic Frontier, told Marketplace's David Brancaccio in December. "But the new thing…is that some companies are raising money to go actually do things on the moon for profit, whether it's mining the lunar soil or providing services to other customers on the lunar surface."

Regulators Race Miners To the Moon

The 2015 U.S. Commercial Space Launch Competitiveness Act established grounds for recognizing private property rights in space so that private firms would have reason to take risks and make investments. The law was intended to end-run the 1967 space treaty's requirement that space exploration "be carried out for the benefit and in the interests of all countries." We won't have national territory in space, but the U.S. will recognize and enforce property claims.

But, as RAND's Urwick and Osborne make clear, natural-born bureaucrats are ready to assert their will even before the first commercial operation has extracted an ounce of resources in space. They want "binding international agreements…which emphasise principles of stewardship, clarify access rights and support common benefits from lunar development." To their voices you can add University of Bristol law lecturer Dr. Charles Ho Wang Mak's worries that "unregulated mining could contaminate lunar regolith or generate debris" and other early calls for red tape in space.

The Artemis Accords, signed by multiple countries since 2020, represent an early effort to encourage "space-based exploration, scientific discovery, and commercial utilization" that at least acknowledges the interests of private enterprise. Then again, the European Space Agency's Zero Debris Charter would export a sort of zero-gravity environmentalism to outer space.

Would-be regulators seem determined to insert themselves into the final frontier. The only saving grace is that if they want to assert their presence, they'll have to hitch a ride from a private space company.

The post In Space, Regulators Seek To Boldly Go Where No Bureaucrat Has Gone Before appeared first on Reason.com.

Plaintiff Harry Smith filed suit for alleged violations of the Fair Credit Reporting Act ("FCRA") arising out of an "employment purposed consumer report published by Defendant to non-party Turn Technologies Inc…. who then resold the same to Plaintiff's potential employer, inclusive of criminal records that had been pardoned and expunged years earlier." …

In February of 2020, Plaintiff appeared before the Board of Pardons (for an unidentified jurisdiction, but presumably Delaware) and sought a pardon for convictions that were more than a decade old. Thereafter, the Board of Pardons recommended that Plaintiff be pardoned. On May 26, 2020, then-Governor of Delaware John Carney granted Plaintiff a pardon for all of his convictions.

In July 2020, Plaintiff applied for expungement of his convictions.  On March 3, 2021, Plaintiffs petition for expungement was granted pursuant to 11 Del. Code § 4372(e)(1), which provides that, within 60 days of expungement, all criminal records must "be removed from the Court's files."  The expungement order further stated that Plaintiff need not disclose that he was arrested, charged, or convicted of the expunged convictions, for any reason except as provided for in 11 Del. Code § 4376(a).  That statute provides that it is "unlawful for any person having or acquiring access to an expunged court or law-enforcement agency record to open or review it or to disclose to another person any information from it without an order from the court which ordered the record expungement." …

The court rejected plaintiff's Fair Credit Reporting Act claim:

To prevail on a claim for violation of Section 1681e(b), a plaintiff must prove that: (1) his consumer report contains inaccurate information; (2) the CRA did not follow reasonable procedures to assure maximum possible accuracy of that consumer report; and (3) damages….

In Roberts v. Carter-Young, Inc. (4th Cir. 2025), … [t]he Fourth Circuit … referred to information as inaccurate only where it is "objectively and readily verifiable" as mistake-or error-free…. FCRA also contains specific provisions referring to convictions. Pursuant to that provision, "convictions may be reported indefinitely." Federal courts recognize that, regardless of any "diversionary disposition" or "unwinding," a finding of guilty still constitutes a conviction for purposes of FCRA and is reportable. See, e.g., Rhodes v. First Advantage Background Servs. Corp. (11th Cir. 2024) (finding "Record 1 is a 'conviction' that is not excluded under § 1681c," even where there was a diversionary disposition); Aldaco v. RentGrow, Inc. (7th Cir. 2019) (holding that federal law, not state law, determines the existence of a conviction for purposes of FCRA reporting requirements, and permitting reporting of a guilty plea despite dismissal of the charges by state court after a deferral period); Bugoni v. Emp. Background Investigations, Inc., (D. Md. 2022) ("Plaintiff's 'set aside' conviction still constituted a conviction subject to reporting under FCRA."), aff'd (4th Cir. May 30, 2023); cf. Petros v. Campbell (4th Cir. 1992) (holding that a deferred sentence of probation still constitutes a "prior conviction" for purposes of federal sentencing enhancements, although it was not a conviction under Virginia law). Indeed, the Supreme Court has held that, where a statute speaks of a "conviction" without a "modifier" or anything to suggest a "restriction on the scope of the term 'convicted,'" an "expunction" of that conviction did not change the fact of conviction.

Thus, applying the principles announced in these "conviction" cases, Plaintiff's expunged convictions still constitute convictions. Although not addressed specifically by the caselaw, the Court further notes that the precise language used by Section 1681c(a)(5) is not just "convictions" but "records of convictions of crimes." Interpreting the plain language of this provision, regardless of whether an expunged offense still constitutes a "conviction," records regarding that expunged conviction would still constitute "records of convictions of crimes." Furthermore, applying the Fourth Circuit's explanation of the meaning of "inaccurate" for purposes of FCRA, failing to report the later expungement is not inaccurate, because, as Plaintiff himself pleads, there are no public records of the expungement. Thus, under Roberts, the alleged inaccuracy—or really incompleteness as argued by Plaintiff—could not be verified by Defendant because there was no record of expungement.

Plaintiff argues that Defendant was required to "indicate that the criminal records were expunged and pardoned," but the FAC alleges that Defendant did not have access to the information necessary to make such a determination, and the Fourth Circuit has held that companies, like Defendant, are not "tribunals" and are not required to "make the kind of determinations about disputes that courts make." Essentially, Plaintiff argues that Defendant had stale information and should have known that it was stale but also acknowledges that Defendant lacked access to the information to make the record more complete. Thus, this Court joins the Bugoni decision from this Circuit and finds that reporting the expunged convictions was not inaccurate. {To the extent that Plaintiff argues that Defendant's report was misleading because it "reported] Plaintiff's records as current public record information," the FAC makes no such allegation regarding Defendant's representations about the currentness of the information in the report. And, it is axiomatic that a Plaintiff may not amend his complaint in opposition to a motion to dismiss.}

And the court also rejected Smith's defamation claim:

Plaintiff has alleged that he had criminal convictions in Delaware. Thus, any report by Defendant regarding those convictions was true, and Plaintiff does not allege otherwise. Plaintiff argues that Defendant "purported to report Plaintiff's expunged records as current public record information in connection with Plaintiff's employment background check." But that is not what Plaintiff has alleged. Plaintiff alleged that Defendant "sold and reported pertinent details of the criminal records that have been expunged."

Moreover, Plaintiff cites no authority for the proposition that accurately reporting on a criminal conviction that was expunged is defamatory. This is likely for good reason, as the Second Circuit has recognized, expungement "creates legal fictions, but it does not and cannot undo historical facts or convert once-true facts into falsehoods." Martin v. Hearst Corp. (2d Cir. 2015); see also Lueckenbach v. Horizon Mississippi Publications, Inc. (N.D. Miss. 2017) ("The fact that the charge was ultimately dropped and expunged has no bearing on the truth of the undisputed fact …."); G.D. v. Kenny (N.J. 2011) ("[T]he expungement statute does not transmute a once-true fact into a falsehood."); Bahr v. Statesman Journal Co. (Or. Ct. App. 1981) ("Because plaintiff admitted in his complaint that he had been convicted," it necessarily follows that "defendant's statement that plaintiff had been convicted was true[.]"). Here, Plaintiff's own allegations establish that the fact he had a criminal record is substantially true. Because the truth of Defendant's statements is clear from the FAC, dismissal of the defamation claim is appropriate.

Anastasiya Lobacheva, Charles E. Harris II, and Carmen Nicole Green (Mayer Brown LLP) represent InformData.

The post Background Check's Reporting Expunged Conviction Isn't Defamation or Fair Credit Reporting Act Violation appeared first on Reason.com.

While running for a seat on a local school board, Wilburn participated in a public forum at a middle school attended by Guthrie and her then-eleven-year-old daughter. At the forum, a moderator asked candidates about issues affecting the school district. One such question addressed "banned books": "How does the school board ensure that banned books do not negatively impact students' access to diverse educational literature?"

In response, Wilburn—who believed that certain books should not be available in public schools—read excerpts from three books that he said were available in school libraries in the district. He prefaced his reading from the books with the following:

I do not curse. I'm going to speak some words now that have not come from my lips in 30 years, and I apologize in advance, ladies and gentlemen, for what you're about to hear. These are books currently available in [the school district's] libraries. Please forgive me in advance.

He then read the following passage:

Title is Push. Page 32. "Daddy put his peepee smelling thing in my mouth, my pussy, but never hold me. I see when he first created pink dress dirty sperm stuff on it. About three months after baby was born, I'm twelve when this happens, mama slapped me hard. Then she picked up a cast-iron skillet and she hit me so hard I fall back on the floor. Then she kicks me in the ribs, and she say, 'Thank you Miz Claireece Precious Jones for fucking my husband you nasty little slut! Fat cunt bucket slut! Nigger pig bitch! All you tell them motherfuckers at the damn hospital? I should kill you,' she screamed at me."

After reading passages from two other books, Wilburn continued:

If you want your children to have access to and read this material, that's none of my business. But as an independent taxpayer in this district, don't ask me to pay for it. As a member of this board of directors, don't ask me to force you to pay for it because the answer to both is no.

According to Guthrie, her daughter was "shocked" by the readings and "immediately burst into tears" after the forum. Guthrie characterizes Wilburn's reading of these passages as the "public performance of pornography at a student-led event."

Wilburn was elected to the school board the next month. In the months that followed, Guthrie made several public statements criticizing Wilburn's conduct at the forum and accusing him of engaging in sexually predatory and other criminal behavior.

Guthrie also filed a complaint with the police, and petitioned that Wilburn be prosecuted. Wilburn sued over Guthrie's statements, and the court allowed the claim to go forward as to some statements but not others; the court's discussion summarizes the tenor of Guthrie's statements, but you can read the full opinion for further details:

A statement of opinion may be actionable as defamation if it is based on false or undisclosed facts. But if the factual context for the opinion is fully and accurately disclosed, the speaker's subjective characterization of those facts may constitute a constitutionally protected opinion….

We agree with Guthrie that several of her allegedly defamatory statements—specifically, those in which she described Wilburn's conduct at the forum and expressed her view that it was criminal or otherwise improper—are protected opinion. In these statements, Guthrie made clear that her accusations were based on her interpretation of the disclosed facts, not on some other undisclosed criminal act that Wilburn committed.

For example, in both the police report and the petition for prosecution, Guthrie began her statements by describing Wilburn's reading of the passages at the public forum. She also included a link to a video of the forum and identified the pertinent portions of the video. She then asserted that, by reading the passages aloud, Wilburn had "violated the rules and norms" of the forum and that this conduct was "criminal behavior" because Wilburn had previously referred to the book as pornography. And she said that Wilburn was a "child predator" for reading the quoted excerpts.

Many of Guthrie's comments at school board meetings and in social media posts were in the same vein. Her first post was similar to her statements in the police report and the petition, quoting the language Wilburn read, linking to the video, and asserting that he had "violated the set rules and decorum of the forum, broke [the] district code of conduct, and … traumatize[d] the young children in the audience." And in many other public comments, Guthrie explicitly tied her assertions that Wilburn was a "predator," a "pervert," and a "danger to children" to his readings at the forum.

Given the context and phrasing of these statements, no reasonable person would understand them as assertions of any fact other than that Wilburn had read from the books at the forum. To the extent Guthrie expressed her view that his doing so was criminal, predatory, or otherwise improper, a reasonable listener would understand these accusations as Guthrie's opinion of Wilburn's behavior. And Guthrie disclosed the facts that "would allow an average listener to evaluate" that opinion for themselves….

We also conclude that certain of Guthrie's other statements are not "sufficiently factual to be susceptible of being proved true or false." Such statements include Guthrie's alleged assertions that (1) Wilburn's actions were "grossly perverted and lewd"; (2) Wilburn "raped [her] child's mind"; (3) Wilburn is a "sexual deviant" and a "pervert"; and (4) Wilburn is "the biggest criminal" in the school district. These statements are the kind of subjective judgments and rhetorical hyperbole that cannot support a defamation claim….

[But] we have identified four categories of statements that are sufficiently factual to support a claim: (1) accusations of criminal conduct or predatory behavior that are divorced from the factual context for those accusations; (2) Guthrie's claim that Wilburn followed and harassed her; (3) the insinuation that Wilburn was under investigation; and (4) statements indicating that the CASB [Colorado Association of School Boards] had advised the school board to "exercise caution" in allowing Wilburn access to children.

First, … some of Guthrie's social media posts—at least as they are presented (and admitted) in the complaint—do not include any context for her accusations of criminal and predatory behavior by Wilburn. In one post, Guthrie asserted, without more, that her daughter was "the victim of one of the school board members who is a child predator." In another, Guthrie said, "[I]f [Wilburn is] convicted of the crime he committed[,] he will have to register as a sex offender and will not be eligible to hold a board director seat." Guthrie made other comments baldly claiming that Wilburn had engaged in "predatory behavior" and that there was a "child predator" on the board.

Without the context for these accusations, they could reasonably be understood to imply that Wilburn had committed an unspecified criminal act against children—a claim that is "sufficiently factual to be susceptible of being proved true or false." Opinions that "imply the existence of an undisclosed defamatory factual predicate may support" a defamation claim. And given the declarative and unqualified nature of the statements, they could reasonably be understood as literal assertions of fact rather than rhetorical hyperbole.

In other social media posts, the limited context Guthrie provided for her statements was glaringly incomplete. For example, in one post, Guthrie said that Wilburn had referred to the book he read as "p[o]rn," which she defined as "material used for purpose of arousal," and then leaped from there to the conclusion that Wilburn "read material that arouses him to little kids." Unlike the police report, where Guthrie posed the same syllogism, she did not include a link to the video of the forum or otherwise disclose Wilburn's prefatory and concluding remarks that made clear that he was not reading the book for purposes of sexual gratification. Nor did she specify what the book was. Without this critical context, this post too could have misled a reasonable reader as to what had actually occurred.

Second, Guthrie's statements that Wilburn followed and harassed her are factual assertions and would reasonably be understood as such…. [T]he context establishes that Guthrie made the statements primarily to convince law enforcement—first the police and then the district attorney—that Wilburn had in fact followed and harassed her, with the intent that they would charge Wilburn with a crime. {Guthrie also repeated this accusation in a social media post, again in a manner that "could reasonably be interpreted as stating actual facts."} And although disputed, Guthrie's account is susceptible of being proved true or false….

Guthrie contends that these statements are opinions because they describe her "subjective perception of a disclosed interaction." But unlike Guthrie's statements about the public forum, the facts of which are not in dispute, this claim is premised on Guthrie's factual account of what happened between the parties after the school board meeting. That account does not become an opinion just because it described "what [Guthrie] felt."

Third, to the extent Guthrie made statements asserting or implying that Wilburn was under investigation, those statements were factual assertions. Wilburn was either under investigation or he was not, regardless of what Guthrie believed or whether she agreed with law enforcement's decision….

Fourth, Guthrie's posting of the purported CASB quote—which she repeated at a school board meeting—embedded two factual assertions: (1) there was a pending investigation into Wilburn's behavior around children, and (2) the CASB had advised the school board to "exercise caution" in allowing Wilburn access to children. The first of these assertions is addressed above. The second is likewise "susceptible of being proved true or false": The CASB either issued the claimed advisement or not. And framed as a direct quote from the CASB and a statement by the executive director, reasonable people would take as fact that it had….

The post Who's Being Pornographic Here? (And Were Pornography Allegations Related to School Library Book Reading Defamatory?) appeared first on Reason.com.

In December 2022, Jewell joined [the U.S. Development Finance Corporation] as its Chief Diversity and Inclusion Officer (CDIO). After DFC's Equal Employment Opportunity (EEO) Officer resigned, Jewell took on the EEO Director position in addition to CDIO. Her "position description" stated that she was the "principal advisor" on DFC's EEO program; its Diversity, Equity, Inclusion, and Accessibility (DEIA) program; and its Justice, Equity, Diversity, and Inclusion program. She was also responsible for "government-wide policy to advance equity across the federal government."

On January 20, 2025, President Trump signed an executive order entitled "Ending Radical and Wasteful Government DEI Programs and Preferencing." The following day, the Office of Personnel Management (OPM) issued a memorandum directing agency heads to place employees of DEIA offices on administrative leave while each "agency takes steps to close and end all DEIA initiatives, offices and programs." On January 22, 2025, Jewell was placed on paid administrative leave, along with her deputy director of DEIA. Jewell's other team members, whose position titles referenced only EEO responsibilities, were not placed on leave.

On January 28, 2025, DFC's Chief Human Capital Officer gave Jewell a choice between resigning immediately or being terminated on February 22, 2025. Jewell was eventually terminated "without payment of the reduction in force severance pay contained in her contract." Jewell later learned that "other non-DEIA Administratively Determined DFC employees" were presented with a deferred resignation option that she was not offered.

Jewell sued, arguing, among other things, that the firing violated her First Amendment rights; but the court disagreed:

Jewell fails to state a First Amendment claim because she does not identify any speech made outside of her duties as Chief Diversity and Inclusion Officer at DFC. Jewell "did not act as a citizen" for "First Amendment purposes" when performing her "official duties" as CDIO. Garcetti v. Ceballos (2006). And her complaint lacks factual allegations about her speech "as a citizen" or any other activity protected by the First Amendment. See id. ("Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.").

Jewell's conclusory argument that her "claim arose not from the content of her official duties, but from the government's act of punishing her for an assumed political viewpoint," is unsupported by her factual allegations and therefore fails to "state a claim to relief that is plausible on its face." Jewell alleges that the President's Executive Order broadly disparaged DEIA programs. But she does not allege any facts to show that she was punished for her own protected speech or perceived beliefs about DEIA work. In fact, Jewell's complaint implies that she was terminated because DFC's DEIA program, which she headed, was shut down….

Jewell also argued "that she was deprived of her 'liberty interest in her name and reputation' without due process when the government made disparaging public statements about DEIA programs and then erroneously 'designated' her a 'DEIA employee' without giving her an opportunity to challenge that designation." The court rejected this claim as well:

 "This Circuit has recognized two theories under which federal employees may pursue a liberty interest claim based on adverse employment action taken against them." "The first, known as 'reputation-plus,' consists of defamation by the government 'accompanied by a discharge from government employment or at least a demotion in rank or pay.'" Jewell's claim fails on this theory because she does not allege sufficient facts to show that she was defamed in connection with her termination. The President's general disparagement of DEIA initiatives in an executive order as "wasteful," "shameful," and "divisive" did not specifically defame Jewell. And Jewell fails to allege a public statement that identified her and tarnished her personal reputation. Because Jewell does not allege facts demonstrating that DFC, or anyone else in the government, "actually revealed [her] identity in any defamatory public statement," her reputation-plus claim fails.

The second theory, known as "stigma," "arises from the combination of 'an adverse employment action and a stigma or other disability arising from official action.'" A plaintiff must allege a "continuing harm associated with the employment action that either bars the individual (formally) from future government employment or that precludes him (formally or informally) from such a broad range of opportunities that it interferes with his constitutional right to pursue his chosen career."

Jewell's stigma claim also fails. She does not allege any facts demonstrating that she is barred from future government employment…. And Jewell neither alleges facts demonstrating that her "ability to pursue her chosen profession [outside of government] has been seriously affected, if not destroyed," nor satisfies the Circuit's "require[ment] that there be some statement of an attempt to obtain subsequent employment and a rejection for the job resulting from the alleged stigma." …

Dimitar Georgiev-Remmel represents the government.

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The Age of Disclosure, a documentary by Dan Farah, promises to prove that the U.S. government is hiding evidence of alien visits to Earth. Farah gets an impressive 34 government officials and advisers on the record about the alleged cover-up—even Secretary of State Marco Rubio winks at the conspiracy theory, without outright endorsing it—but the film is frustratingly thin on specifics.

Many of the officials claim they cannot share more evidence for or details about the claimed alien encounters because they remain classified. The film's most explosive allegation, that an alien species actually made contact with the government, is mentioned once and never revisited.

But while the film isn't convincing, it does make for an unintended metacommentary on national security politics.

The original UFO craze was a product of the Cold War, with its secrecy, high-tech competition, and nuclear-powered paranoia. The Age of Disclosure is clearly a product of the war on terror and the mass surveillance age. The whistleblowers speak in overwrought intelligence jargon, as photos of their early careers fighting in the Middle East float across the screen. They complain that the national security state is being prevented from dealing with threats. "There's this hidden hand that is blocking all of these actions," former intelligence officer Jay Stratton claims. "A subversive government overriding the real government."

The eagerness of so many government insiders and national security hawks to talk about UFOs is itself somewhat suspicious. Early in the film, former Rep. Mike Gallagher (R–Wis.) posits that UFO sightings could be part of "a robust counterintelligence program to cover up for a U.S. government effort that has fallen away from congressional oversight." That is an interesting line of inquiry, and Farah fails to follow up on it.

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Train Dreams is a movie about a complicated truth: that life can be beautiful and cruel at the same time. Based on Denis Johnson's novella, it follows Robert Grainier, a logger in the Pacific Northwest during the age of westward expansion.

Grainier helps build the railroads, a job that ends up shaping his life. The trains represent progress—speed, connection, a modern world shaped by technology—but they also transform the land. Forests are cleared, landscapes change, and something old disappears as something new takes its place. Grainier's own life follows the same pattern: He builds a home and a family, and then watches much of what he loves disappear through fire, loss, and time.

The film never treats loss as a reason to reject change. Grainier himself finds moments of curiosity in what's new, riding a train to Spokane and marveling at how a quiet town turned into a modern city. Progress doesn't erase tragedy, but tragedy doesn't make progress meaningless.

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Australia's medical regulators ordered psychiatrist Andrew Amos not to post about gender medicine or transgender people on social media. Amos has been critical of transgender care and treatments. The Australian Health Practitioner Regulation Agency and the Medical Board of Australia said Amos must follow professional conduct rules online and stop commenting on topics related to gender identity or gender medicine. Regulators also limited his medical work so he can only take part in non-clinical roles such as administration, research, education, or policy work. Officials said the restrictions aim to make sure patients feel safe and free from discrimination when they receive healthcare.

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This is a case about swinging dicks. The Christian owners of Olympus Spa—a traditional Korean, women-only, nude spa—understandably don't want them in their spa. Their female employees and female clients don't want them in their spa either. But Washington State insists on them. And now so does the Ninth Circuit. You may think that swinging dicks shouldn't appear in a judicial opinion. You're not wrong. But as much as you might understandably be shocked and displeased to merely encounter that phrase in this opinion, I hope we all can agree that it is far more jarring for the unsuspecting and exposed women at Olympus Spa— some as young as thirteen—to be visually assaulted by the real thing. Sometimes, it feels like the supposed adults in the room have collectively lost their minds. Woke regulators and complicit judges seem entirely willing, even eager, to ignore the consequences that their Frankenstein social experiments impose on real women and young girls.

As you could imagine, this line infuriated Judge VanDyke's colleagues.

Judge McKeown issued a statement that was joined by twenty-eight members of her Court (the Ninth Circuit has fifty-one total active and senior status judges):

McKEOWN, Senior Circuit Judge, joined by MURGUIA, Chief Judge, HAWKINS, S.R. THOMAS, GRABER, FLETCHER, PAEZ, BERZON, CLIFTON, BYBEE, and HURWITZ, Senior Circuit Judges, WARDLAW, GOULD, RAWLINSON, M. SMITH, CHRISTEN, NGUYEN, FRIEDLAND, MILLER, KOH, SUNG, SANCHEZ, H.A. THOMAS, MENDOZA, DESAI, JOHNSTONE, and DE ALBA, Circuit Judges, respecting the denial of rehearing en banc:

The American legal system has long been regarded as a place to resolve disputes in a dignified and civil manner or, as Justice O'Connor put it, to "disagree without being disagreeable."1 It is not a place for vulgar barroom talk. Nor is it a place to suggest that fellow judges have "collectively lost their minds," or that they are "woke judges[]" "complicit" in a scheme to harm ordinary Americans. That language makes us sound like juveniles, not judges, and it undermines public trust in the courts. The lead dissent's use of such coarse language and invective may make for publicity or entertainment value, but it has no place in a judicial opinion. The lead dissent ignores ordinary principles of dignity and civility and demeans this court. Neither the parties nor the panel dissent found it necessary to invoke such crude and vitriolic language. Decorum and collegiality demand more.

Judges Owens and Forrest (a Trump appointee) issued a one sentence statement:

Regarding the dissenting opinion of Judge VanDyke: We are better than this.

Judge VanDyke responds to McKeown's statement:

Finally, I'll respond briefly to my colleagues' discomfort with how I've written this dissent. My distressed colleagues appear to have the fastidious sensibilities of a Victorian nun when it comes to mere unpleasant words in my opinion, yet exhibit the scruples of our dearly departed colleague Judge Reinhardt when it comes to the government trampling on religious liberties and exposing women and girls to male genitalia. That kind of selective outrage speaks for itself.

The public deserves a court that is actually trustworthy. We should be earning that trust, not demanding it like petty tyrants. Yes, the introduction to this dissent intentionally uses indecorous language. But that is quite literally what this case is about. Male genitalia is precisely (and only) what the Spa, for religious reasons, objects to admitting into its female-only space. The fact that so many on our court want to pretend that this case is about anything other than swinging dicks is the very reason the shocking language is necessary. The panel majority uses slick legal arguments and deflection to studiously avoid eye contact with the actual and horrific consequences of its erroneous opinion. The "ordinary Americans" affected by the majority's opinion don't have that luxury. Squirm as we might, I think it's only fair for our court to have a small taste of its own medicine.

Sometimes "dignified and civil" words are employed to mask a legal abomination. Or, to put it in vernacular perhaps more palatable to my colleagues' Victorian sensibilities: "In law, what plea so tainted and corrupt, / But, being seasoned with a gracious voice, / Obscures the show of evil?"

Sometimes coarse and ugly words bear the truth. I coarsely but respectfully dissent from our court's willingness to leave this travesty in place.

Some people suggest that Judge VanDyke is "auditioning" for the Supreme Court. Before this opinion, I could have told you that he most certainly is not. Watch my interview with Judge VanDyke. After this opinion, you should have no doubts. He truly believes what he is writing, and uses his pen to advance his understanding of the law.

Judge Tung also issued a dissent, which was joined by Judges Nelson, Bumatay, and VanDyke.

Let us be clear about what the law in Washington requires. Under its law, the State can disregard a small-business owner's Christian beliefs and force her familyrun Korean spa to allow a nude man (who claims to be a woman) into an intimate space reserved for its female patrons. Yet under that same law, private clubs embracing secular values can refuse entry to that man. Schools and cemeteries can refuse service to that man, too, so long as they are run by institutions deemed "sectarian." Thus, while the law purports to protect any Washington resident from so-called gender-identity "discrimination," the State's prohibition exempts some secular organizations and certain religious ones—it just does not exempt the small business in its exercise of its religious beliefs here. How is this at all a "neutral law of general applicability"? Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 879 (1990). It is not. The panel's conclusion to the contrary—immunizing the law from any serious First Amendment scrutiny—should have been vacated. I dissent.

This case will be swinging to a cert petition near you.

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This petition presents questions concerning crucial constitutional and statutory aspects of lifetime tenure and judicial independence, especially the availability of judicial review for intra-branch infringements on judicial service. These questions affect the very independence of Article III courts and potentially affect every member of the federal judiciary and every litigant who appears before them. For three years the Federal Circuit has been operating short-handed because the judges of that court have summarily removed its longest-serving and most storied jurist (its "Great Dissenter") from the bench.

The D.C. Circuit Court of Appeals held that the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 ("the Disability Act") bars review of the unlawful actions taken against Judge Pauline Newman. This administrative removal of a judge who is famous for dissenting from her colleagues, by those same colleagues, with judicial refusal to review the merits of the action, undermines the judicial independence that is a vital foundation of our constitutional design. Every judge who gets crosswise with her chief judge or her colleagues must now worry whether similar tactics could be used to remove them.

Judge Newman has continued to speak and write before the legal community, and no finding of disability has been made concerning her in the years since the unlawful administrative orders began. She voluntarily underwent and passed three expert evaluations of her mental fitness and was reported as having the mental ability of someone decades younger. She now has been suspended longer than any federal judge in history. The length of the suspension, the apparent intention to keep her off the bench permanently, the same judges acting as complainant, witnesses and judges, and the refusal to transfer the matter to another circuit for neutral investigation are unprecedented.

Judge Newman's petition also explains the practical reality that her removal from active service is, for all practical purposes, a stealth impeachment:

Chief Judge Moore is using the Disability Act to circumvent these constitutional protections, in an attempt to implement a constructive discharge of a judicial colleague with whom she no longer wishes to serve. These heavyhanded tactics cannot be tolerated if the independence of Article III judges is to be preserved. Other judges who are watching what is happening to Judge Newman can only wonder if a similar fate will befall them if they fail to stay on the good side of their chief judge. This Court cannot allow the internal politics of a court to sideline a Senate-confirmed judge and threaten the independence of other judges who may fear similar reprisals from their colleagues. All of this needs to be nipped in the bud before any further damage is done to the Constitution's protections of judicial independence.

Judge Newman's colleagues have thus far succeeded in silencing her frequently dissenting voice on the court, despite her presidential appointment and lifetime tenure. And, indeed, her effective removal from the bench has had a dramatic effect on the number of dissents issued in the Federal Circuit. One recent study concluded that since Judge Newman's removal from the bench, the rate of dissent in the Federal Circuit has dropped from 12% to 4%. Just losing Judge Newman's own dissents does not fully account for that drop. This means that other judges are dissenting less often than they used to when Judge Newman was actively participating and setting a good example. Or, perhaps what has happened to Judge Newman has raised the perceived costs of dissenting and intimidated some judges at the margins from authoring dissents. Either way, the Federal Circuit and those who litigate before it are worse off with the lack of vibrant dissent to stimulate more careful thinking and adjudicating.

Attacks on the independence of the judiciary have been increasing from both the left and right, and from the executive, legislative, and even within the judicial branch.
For those reasons—and for the reasons given above—it is imperative for the Court to step in and issue a strong statement in support of judicial independence and make clear that the only appropriate method of removing a federal judge is through the constitutional impeachment process.

You can read all of Judge Newman's strong cert petition here. It is important to note that the petition does not ask the Supreme Court to rule on the merits of Judge Newman's challenges, only that she is entitled to have a federal court consider her claims — both statutory and constitutional — to the extent that she is seeking forward-looking relief.

Note that, in the D.C. Circuit, I joined an amicus brief with former judges Susan Braden, Janice Rogers Brown, Randall Rader, and Thomas Vanaskie supporting Judge Newman — and may do so in the Supreme Court as well.

I hope that the Supreme Court will decide to review of this exceptionally important jurisdictional issue that, as the petition powerfully explains, goes to the very core of judicial independence.

The post Is Judge Pauline Newman Entitled to Her Day in Court? appeared first on Reason.com.

On the political right, the months since the death of conservative media superstar Charlie Kirk have been characterized by ever-escalating and internecine warfare between his would-be professional inheritors. In retrospect, it is now apparent that Kirk had held together a very fractious coalition.

Leadership of Turning Point USA (TPUSA), the flagship political organization for young conservatives that Kirk founded in 2012, has formally passed to his widow Erika Kirk. She has faced a barrage of attacks from Candace Owens, a former friend of Charlie Kirk who has made spurious accusations that TPUSA leadership and perhaps the state of Israel were involved in his death. On one level, this particular feud seems deeply personal, and it's hard to take Owens' vendetta seriously when it's mostly backed up by outright conspiracy theories; on the other hand, she remains incredibly popular and has a massive audience.

This fact tends to make more respectable conservative commentators nervous, since it reveals a very basic fact: The Owens faction is winning the hearts and minds of young Republicans, or at least appears to be prevailing among very online and politically active conservative Gen Zers. Some (admittedly wild) speculation says that around "30 to 40 percent" of young white male conservatives working in Washington, D.C., belong to the "groyper" movement of Nick Fuentes, whose fans overlap with Owens' despite on-and-off feuding between the pair. Owens can also claim Tucker Carlson and Megyn Kelly, two of the biggest names in conservative media, among her defenders.

The other faction is most prominently represented by Ben Shapiro and his organization The Daily Wire (though The Daily Wire's other most famous figure, Matt Walsh, is often at odds with folks on both sides), The Babylon Bee, James Lindsay, Dave Rubin, and others. Support for Israel, oddly enough, has become a defining issue for the right, and so Jewish and pro-Israel conservatives are universally opposed to the groyper faction. Their viewers, readers, and subscribers tend to be older, more traditional conservatives. They also watch Fox News and Newsmax. The Owens-Fuentes-Carlson-Kelly side is winning online and appears more attractive to young people. Looking beyond vibes and digging into the data reveals a mixed picture: There are polls that cast some doubt on the notion that Carlson's stridently anti-intervention, Israel-skeptical point of view is so popular with Gen Z. On the other hand, surveys of Gen Z Trump voters reveal worrisome levels of tolerance for antisemitism and hostile views toward Israel.

Speaking as a professional libertarian, it's tempting to look at all this infighting and say: not my circus, not my monkeys. I prefer the anti-interventionism of the New Right but decry the racism and antisemitism; with the establishment right, it's the reverse. Neither faction seems particularly inclined to cozy up to libertarians. The three-legged stool of fusionism that held up the modern Republican Party—religious social conservatism, foreign policy neoconservatism, and economic libertarianism—has long since broken apart.

But there's not cozying up and then there's denouncing by name. Increasingly, this seems to be the choice the New Right is making. That's why Kai Schwemmer has caught my attention. Schwemmer is another rising figure on the New Right: He recently became the political director of College Republicans of America, another campus conservative group. Unlike many New Right figures, he's Mormon. (The new right tends toward Catholicism, whereas the traditional right tends toward evangelical Protestantism.) He's also a former friend and associate of Fuentes, and as such, the enemies of the New Right have spent the past week vigorously denouncing him. The Babylon Bee's Joel Berry said people like Schwemmer give the GOP an image problem, and Lindsay took his turn as well.

I'm once again telling you College Republicans (of America) is a very radical wolf in sheep's clothing you should want nothing at all to do with. Look into it for yourself, starting with this guy. https://t.co/M5kWehkriw

— James Lindsay, anti-Communist (@ConceptualJames) March 5, 2026

Schwemmer, for his part, made a video explaining his views and followed up with the declaration that caught my eye: "Most importantly: I am NOT a libertarian."

Most importantly: I am NOT a libertarian, I am a conservative. I believe the state absolutely can and should be used by virtuous people to decrease and disincentivize vice, making it easier for good people to live good lives. The religious morality we have had since the nation's…

— Kai Schwemmer (@KaiSchwemmer) March 6, 2026

I admit I'm a little confused that a New Right figure would declare libertarianism his most hated enemy, particularly because it would seem like we were aligned on the issue they are most obsessed with: aid to Israel and foreign interventionism. Libertarians tend to oppose these things. The two most libertarian members of Congress, Sen. Rand Paul (R–Ky.) and Rep. Thomas Massie (R–Ky.), are the ones leading the intra-GOP opposition to the Trump administration's wars of choice against Iran and Venezuela.

But beyond that, it's genuinely surprising to me that young Republicans would conclude—after living through the past six years—that what went really wrong for them is government doing too little. Have we all forgotten about COVID-19? In response to the pandemic, the federal government implemented the exact program that nonlibertarians are calling for: a crackdown on inconvenient personal liberties in the name of the common good. The health and well-being of young people were particularly negatively impacted by the government's common-good statism in the form of school closures and bans on group social activities. Vaccine mandates, mask requirements, lockdowns, and the like were all justified under the framework that the government had a paternalistic responsibility to do things for people's own good, no matter whose freedom was harmed as a result. Disproportionately, the groups that got the shortest end of the stick were kids, teenagers, and college-aged students.

Indeed, I might have expected the post-pandemic generation of up-and-coming political commentators to all be radical libertarians, since they experienced firsthand the horrifying consequences of big government run amok during the pandemic—what 2020 Libertarian Party presidential candidate Jo Jorgensen called "the biggest assault on our liberties on our lifetime." But for whatever reason, that appears not to be the case.

This Week on Free Media

I'm joined by Amber Duke to discuss CNN's erroneous coverage of the Islamic State group–inspired (failed) terrorist bombing of protesters outside Gracie Mansion.

Worth Watching

I've now made it through the first four Miss Marple books, having just completed A Murder Is Announced, which has a nice twist. I would like to take a break from Agatha Christie, though, so I'm soliciting recommendations: anything but mystery novels.

The post The Post–Charlie Kirk Right Is at War With Itself. Libertarians Are the Odd Target. appeared first on Reason.com.