A short excerpt from today's longish Tenth Circuit opinion in VoteAmerica v. Schwab, by Judge Timothy Tymkovich, joined by Judges Michael Murphy and Joel Carson:

To reduce voter confusion and increase confidence in elections, the Kansas legislature prohibited private parties from partially prefilling applications for mail ballots before those applications are sent to registered voters. VoteAmerica and Voter Participation Center sued, alleging that the restriction infringed on their freedom of speech guaranteed by the First Amendment….

Relying on the political reaction against mail-in voting and Kansas's failure to prove an adequate fit between its stated interests and the Prohibition, the [district] court concluded that Kansas enacted the Prohibition to suppress speech supporting mail-in voting. Applying strict scrutiny (and intermediate scrutiny in the alternative), the court concluded that the law failed because it was not sufficiently tailored….

[W]e REVERSE the district court's judgment. The district court found an improper purpose without evidence from the Prohibition's justifications, text, or legislative history; it instead inferred an improper purpose from the national political debate on mail-in voting. That finding was in error. Because the Prohibition was enacted without an improper purpose, we apply intermediate scrutiny and find the Prohibition constitutional….

The court held the law was viewpoint-neutral (and content-neutral):

VPC [plaintiff Voter Participation Center] bears the burden to show that the Prohibition was enacted with viewpoint-discriminatory purpose…. A law is adopted with improper purpose if it was adopted "because of disagreement with the message the speech conveys." …

We do not, however, assume that a law is adopted with improper purpose simply "because it may disproportionately affect speech on certain topics," or because "it has an incidental effect on some speakers or messages but not others." McCullen v. Coakley (2014)….

Kansas contends that the district court wrongly inferred improper purpose when the Prohibition's text, enactment history, and the State's justifications for the law evince no such purpose. We agree.

First, Kansas's stated interests in the Prohibition are not intrinsically tied to restricting a viewpoint. Kansas stated that the Prohibition is meant to (1) minimize voter confusion; (2) facilitate efficiency in election administration; and (3) foster confidence in and protect the integrity of the electoral process. These are each legitimate interests—and they are independent of any alleged purpose in restricting VPC's pro-mail-in-voting viewpoint….

VPC counters that we must look beyond Kansas's stated interests to the Prohibition's operation. For, if "[e]very objective indication shows that the provision's primary purpose is to restrict speech that [advances a certain viewpoint]," we should not conclude that the provision was enacted with a proper purpose "simply because the statute itself and those defending it in court say that it is[.]" See McCullen (Scalia, J., concurring). VPC highlights the Prohibition's disproportionate effect on the pro-mail-in-voting viewpoint. It urges that the Prohibition functions to target only mail-in voting advocates because those against mail-in voting would not prefill applications.

That may be true, but caselaw forecloses VPC's argument. Without more, incidental disproportionate effect on one subject or viewpoint does not prove improper purpose. See McCullen (majority opinion) ("[A] facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics.")….

VPC fails to show that Kansas enacted the Prohibition to suppress its pro-mail-voting viewpoint. The district court's reliance on cultural antagonism against mail-in voting to infer the Kansas legislature enacted the prohibition with an improper purpose—when the law's justifications, text, and enactment history reveal no such purpose—was in error….

And the court held that the law passed the intermediate scrutiny applicable to content-neutral speech restrictions:

Speech restrictions survive intermediate scrutiny if they "(a) serve a significant government interest; (b) are narrowly tailored to advance that interest; and (c) leave open ample alternative channels of communication." …

Kansas's stated interests are significant… Kansas identified the harm of voter confusion that the prefilled applications caused. The State says some voters called in angry and perplexed by inaccurate prefilled applications. And it points to others who unnecessarily submitted multiple applications after receiving the prefilled forms. Kansas identified the administrative burdens caused by the erroneously prefilled applications, duplicate submissions (caused, at least in part, by the prefilling confusion), and time spent assuaging voters' concerns and confusion. And Kansas identified lost confidence in the electoral process. County election officials were flooded with calls and letters from voters frustrated by the purported incompetence of their county because of errors in the prefilled applications….

The Prohibition is also adequately tailored to address Kansas's legislative interests and does not restrict substantially more speech than necessary. And because the Prohibition minimally burdens speech, it was not necessary to point to alternative regulatory schemes.

First, minimizing voter confusion. Kansas cites evidence of voter confusion caused by the prefilled applications. Kansas showed that the prefilled applications caused confusion among voters because of the applications' errors and many voters' beliefs that they needed to sign and mail prefilled applications even if they had already submitted one.

The Prohibition is tailored to alleviate this harm. Because of the Prohibition, voters will receive blank ballot applications with no error, removing any confusion resulting when voters received erroneous applications but had previously reported their information change to the county election office. And we can reasonably infer that some voters who felt compelled to submit the prefilled applications will not feel compelled to do the same when they are blank….

[T]he evidence here directly relates to the Prohibition—county officials testified to voter confusion resulting from (1) error in prefilled applications, and (2) receipt of prefilled applications, when voters had already submitted applications….

The Prohibition also does not burden substantially more speech than necessary to minimize voter confusion resulting from prefilled ballot applications. Kansas's solution—outright prohibiting the prefilling of applications—was reasonable and "the threat to free speech posed by the Prohibition is sufficiently small." There are few (if any) less-burdensome alternatives that could cure the problem because "the use of forms by the government inherently requires content restrictions." This showing is sufficient to survive narrow tailoring….

Second, administering efficient elections. Kansas presented evidence of the administrative burden caused by the erroneously prefilled applications (and duplicate submissions of prefilled applications). Kansas demonstrated that county offices regularly received erroneous prefilled applications and duplicate applications because voters believed they needed to submit the prefilled applications they received. Kansas produced evidence that these erroneous prefilled ballots and duplicate submissions produced a significant administrative burden. The three to five minutes processing time for an accurate, non-duplicate application could increase to over thirty minutes. The Prohibition alleviates this processing burden by reducing the amount of erroneously prefilled and duplicate applications county offices receive.

VPC nevertheless counters that Kansas failed to provide evidence of harm because it did not show how many duplicate or inaccurate prefilled applications county offices received. But the record demonstrates that at least 3% of VPC's Kansas voter database was inaccurate, suggesting that VPC sent more than 15,000 erroneous applications to Kansans during the 2020 general election. And county offices reported, without providing exact numbers, that the number of duplicate and erroneous prefilled applications skyrocketed. Kansas offers sufficient evidence supporting the claim that prefilled applications caused administrative harm.

To rebut Kansas's showing of narrow tailoring, VPC also relies on the district court's conclusion that the "real issue" producing the administrative burden was duplicate applications. But Kansas shows that it expended extra resources on duplicates and error-riddled prefilled applications. And Kansas points to evidence showing that voters submitted duplicates in part because they were prefilled—they thought they had to.

The district court reached the contrary conclusion that the prefilled applications did not cause administrative harm in large part because Cox and Shew testified that in some ways they preferred prefilled applications. But the district court erred in concluding that the Prohibition's potential allowance of one problem—increased human error in applications—negated the adequacy of the Prohibition's tailoring to a different problem, third-party error in the prefilled applications. Kansas has a right to act prophylactically to minimize administrative burden, and to do so in its best judgment by addressing one problem contributing to it.

Perhaps the Prohibition will be net neutral. But Kansas tailored the Prohibition to a discrete problem producing an administrative burden and directly ameliorated that problem. And because the Prohibition does not burden substantially more speech than necessary to further Kansas's interest in facilitating efficient elections, the Prohibition is narrowly tailored.

Third, fostering confidence in election integrity. Kansas offers record evidence of voter frustration and distrust caused by the prefilled ballot applications. Howell described voters venting frustration at the alleged incompetence of their county upon receiving applications that contained a wrong name and address; some who had previously communicated changes to the office were especially frustrated. The Prohibition addresses this distrust and frustration by removing the source of the voters' complaints….

Finally, the Prohibition leaves open ample alternative channels of communication. VPC "remains free to choose what avenue of communication it will use to advocate for mail voting, including the use of unsolicited mailers." It may even include a sheet with the previously prefilled information alongside a blank application….

Because the Prohibition is adequately tailored under intermediate scrutiny, its minimal restriction on the content of VPC's speech is permissible under the First Amendment.

Bradley J. Schlozman, Scott R. Schillings and Garrett R. Roe (Hinkle Law Firm LLC) represent defendants.

The post Kansas Ban on Private Parties' Partially Prefilling Voters' Mail Ballot Applications Upheld appeared first on Reason Magazine.

Some short excerpts from the long opinion in Computer & Comm. Indus. Ass'n v. Uthmeier, decided today by Judge Kevin Newsom, joined by Judges Robert Luck and Gerald Bard Tjoflat:

One of the most pressing is how and in what ways social-media use affects minors. According to the State of Florida, social-media companies seed their platforms with "addictive features"—push notifications, auto-play, infinite scrolling, etc.—in order to make them, well, addictive. These features, the state says, are "psychological hooks" that "overstimulate the reward center in the brain" and "foster compulsive overuse." Florida insists that children are particularly susceptible to these "addictive features" because their brains are still developing. In particular, the state contends, the features contribute to "[c]ompulsive or uncontrollable" social-media use among children and threaten a "youth mental health crisis." Children face "'sleep problems, attention problems, and feelings of exclusion,' all of which put [them] at risk of 'depression, anxiety, and neuroticism.'"

In an effort to protect children from social-media addiction and its ensuing effects, Florida passed HB3, which imposes age-restriction requirements on platforms that use "addictive features." In particular, HB3 requires platforms within its ambit to prohibit anyone under the age of 14 from creating an account, and to prohibit anyone else under 16 from doing so without parental consent….

[W]e hold that HB3 likely passes First Amendment muster because it is a content-neutral speech regulation that satisfies intermediate scrutiny….

The court held that HB3 was a speech restriction and thus implicated the First Amendment:

Florida contends that HB3 "regulates product design, not children's speech," and, accordingly, doesn't even implicate the First Amendment. In particular, the state says, HB3 restricts only the creation of accounts, not social-media access writ large, and thus regulates only "commercial transaction[s]"—namely, a platform's ability to "enter[ ] into a contract" with children of a certain age.

Even accepting the state's characterization, it seems clear enough to us that HB3 "disproportionate[ly] burden[s]" CCIA's member platforms' "protected First Amendment activities"—namely, "compiling and curating others' speech" for their users. In particular, HB3 burdens platforms' ability to communicate with their users by requiring them (1) to prohibit minors under 14 years of age from creating or maintaining accounts and (2) to secure parental consent before communicating with 14- and 15-year-olds.

But it concluded that HB3 was content-neutral:

HB3 is facially content neutral: It regulates social-media platforms based on their functional capabilities and features, not the content they communicate. The law neither references the substance of the speech on any platform nor draws distinctions based on it. Put differently, HB3 applies to platforms wholly without regard to the topics discussed or the ideas or messages conveyed on them. Truth Social is just as likely as Instagram to be affected by HB3 so long as (1) a proportion of minors under 16 spend an average of at least two hours a day on it; (2) it uses infinite scrolling, push notifications, auto-play, or livestreaming, or displays user-engagement metrics; and (3) it selects content algorithmically for users. And tellingly, neither a platform nor a user can "avoid or mitigate" the effects of HB3 by "altering" the substance of any posted expression.

HB3's justification is also content neutral: to "protect[ ] children from [social-media] addiction and associated mental-health harms." That purpose is "unrelated to the content of expression" on any given platform, and it doesn't "reflect[ ] disagreement with the message such speech conveys." …

CCIA contends that HB3 is content based because it applies only to so-called "social" speech: The law, CCIA asserts, targets websites "based on the 'social' subject matter 'of the material they disseminate.'" … [But t]he "social"-ness of speech is a function of its form, not its substance. Put simply, "social" speech, as CCIA seems to be using the term, is simply speech that occurs between users on social-media platforms, wholly without regard to "the topic discussed or the idea or message expressed." Users can engage in so-called "social" speech about any topic, from the sublime (religion, philosophy, etc.) to the ridiculous (celebrity gossip, cat videos, etc.)….

And it held that HB3 likely passed the "intermediate scrutiny" applicable to content-neutral speech restrictions, because the law "advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests":

CCIA doesn't dispute that HB3 advances an important state interest; it acknowledges that "protecting minors is certainly a laudable goal." Even so, it says, HB3 fails intermediate scrutiny's first element because Florida's interest "is plainly related to the suppression of expression." In particular, CCIA emphasizes that HB3 prohibits addictive features only on websites, not on other "services that disseminate speech"—like, for instance, "books that end in cliffhangers." Florida singles out social-media platforms, CCIA insists, because they host speech that Florida "distrusts."

CCIA's argument doesn't necessarily follow. It would hold up only if websites have an inherent expressive value that differs from the expressive value inherent in all books. But both books and websites communicate content that spans the full range of expressive values; they just do so in different formats. Absent a restriction on the substance of the topics, ideas, or messages communicated by websites as compared to those communicated by books, HB3's "singling out" of websites is not, as CCIA argues, "plainly related to the suppression of expression." …

HB3 [is] also likely … appropriately tailored to advancing Florida's interest in protecting minors. In particular, HB3 doesn't "burden substantially more speech than necessary" because it (1) calibrates its restrictions by age, (2) regulates minors' creation of social-media accounts, not necessarily their access to the platforms themselves, (3) covers only those platforms that have been determined to induce heavy use by children, and (4) applies only to platforms that use both algorithms and one of several addictive features.

First, HB3 is age delimited. It prohibits minors under 14 from creating accounts, and it requires 14- and 15-year-olds to obtain parental consent before doing so. Notably, it imposes no limitations for those 16 years of age and older. The law thus applies only to younger minors and recognizes the fine-grained distinctions even among those to whom it applies—namely, that 13-year-olds (in general, middleschoolers) are different from 14- and 15-year-olds (those starting high school), who, in turn, are different from those 16 and up (budding adults).

Second, even among those to whom HB3 does apply, the law restricts only their ability to create their own accounts, not their ability to access social-media platforms per se. The creation of a social-media account is a commercial act—a business transaction. Even a minor—indeed, even a young child—may continue to use the platforms provided he either (1) uses his parents' (or someone else's) account or (2) gains access without an account.

Third, HB3 targets only the platforms to which many minors are already addicted. As a reminder, a platform comes within HB3's purview only if at least 10% of daily active users under 16 years old spend an average of two hours or more per day on it. Together with its other limitations, HB3's tailoring efforts fall within the broad range of potential legislative solutions that intermediate scrutiny permits.

And fourth, HB3 operates not as an outright prohibition of platform usage but rather as a "conditional ban" of sorts—namely, on platforms' use of addictive features and algorithms. The law applies only to platforms that use a combination of algorithms and addictive features and that succeed in keeping many minors on them for an average of at least two hours a day. Refraining from using either algorithms or addictive features, or remaining below the temporal threshold, exempts a platform from the law's application.

Now, none of that is necessarily to say that HB3 embodies the best policy choice. Maybe, maybe not. But intermediate scrutiny affords governments "latitude … to design regulatory solutions to address content-neutral interests." Accordingly, it is within Florida's discretion to draw the lines it has—many of which, of course, narrow the law's scope. So, for instance, Florida may validly opt to prohibit minors under 14, rather than 16, from creating social-media accounts, and to require 16-year-olds, rather than all those under 18, to obtain their parents' consent before creating accounts. So too, it may validly train its attention on platforms that a segment of children use more than two hours per day, rather than one. And finally, it is free to focus on sites that use both algorithms and "addictive features," rather than one or the other of those….

Judge Newsom also added a very interesting separate opinion, focused on as-applied challenges and intermediate scrutiny; interested readers may want to look at it, as well as at the panel's discussion of overbreadth challenges and other matters.

The post Florida "Addictive Features" Social Media Restrictions on Minors Likely Constitutional, Eleventh Circuit Holds appeared first on Reason Magazine.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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In The News

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

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

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

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

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

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

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On Substack

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

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

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

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

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

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

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

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Read This Thread

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

— Max Gulker (@maxg_econ) October 12, 2026

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More Sex & Tech News

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Transporting beer. That was his crime.

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

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

Jouppi was convicted of bootlegging.

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

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

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

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

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

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

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

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

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

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

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

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

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

When they saw greenhouses, they fined property owners.

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

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

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

But it took four years.

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

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

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

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

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

COPYRIGHT 2026 BY JFS PRODUCTIONS INC.

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

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

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

 

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

4:13—Healthcare conglomerates and "contractual terrorism"

15:39—Drug pricing and pharmacy benefit managers

26:58—How AI will transform healthcare

33:04—The Trump administration's policy reforms

34:22—How does Cost Plus Drugs work?

43:08—The backlash against billionaires

47:52—Political parties and Texas governance

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

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

55:50—The influence of Ayn Rand

Producer: Paul Alexander

Audio Engineer: Ian Keyser

 

Transcript

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

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

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

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

What's the main problem with health care?

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

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

No, that's wrong…OK, let's just…

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

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

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

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

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

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

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

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

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

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

Oh, no, no. I know that. So explain—

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

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

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

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

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

Not at all.

We've streamlined like our costs—

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

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

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

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

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

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

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

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

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

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

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

Right. 

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

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

No!

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

Not the issue to me at all.

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

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

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

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

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

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

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

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

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

I'm like, "Why do you?"

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

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

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

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

So I call them contractual terrorism.

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

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

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

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

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

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

They all raised their hands.

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

That's the pharmacy benefit—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Right. Yeah, yeah.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Correct, correct.

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

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

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

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

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

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

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

So how did they get there? Vertical integration.

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

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

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

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

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

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

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

I mean…

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

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

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

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

It tries to end vertical integration or limit vertical integration.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In this particular case, absolutely.

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

One is drug discovery.

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

Make, like, personalized medicine.

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

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

Simple, simple, simple example.

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

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

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

I'll give you one more example.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So two different paths, right?

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

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

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

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

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

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

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

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

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

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

That's when we launched, January of 2022.

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

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

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

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

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

Go out of business.Yeah, yeah…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Where you live.

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

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

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

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

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

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

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

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

The only constant is change.

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

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

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

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

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

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

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

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

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

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

No.

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

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

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

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

Where did you get these? Social media.

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

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

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

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

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

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

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

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

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

Yeah, of course.

You start to figure things out.

Yeah, hopefully, right?

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

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

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

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

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

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

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

16 and under. 16 and under.

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

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

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

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

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

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

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

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

Objectivists.

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

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

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

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

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

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

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

You're going to blow up a building somewhere.

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

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

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

Please do. costplusdrugs.com.

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

Thanks for having me on. I really enjoyed it.

Thank you so much, Mark.

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

💾

© Illustration: Fatima Ruiz

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

---

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

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

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

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

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QUICK HITS

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

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

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

• Not wrong:

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

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

— Jack (@tracewoodgrains) October 13, 2026

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And his second tweet read:

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

• Fishing reels and rods: $1900
• Tackles boxes containing fishing lures: $150
• Cast nets: $150

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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High Costs and Political Bias Sour Americans on College

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

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

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

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

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

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

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

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

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College Still Offers Value for Those Who Choose Wisely

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

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

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

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

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Trade Schools Rise as Employer Demand for College Degrees Falls

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

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

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

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

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

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

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

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

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

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

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

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