Some colorful lawyer wisdom (see, e.g., Dunn v. U.S. (5th Cir. 1962)); I found versions of this in newspapers going back to 1931, though it may have been a familiar phrase even then.

The post "If You Throw a Skunk into the Jury Box, You Can't Instruct the Jury Not to Smell It" appeared first on Reason Magazine.

From Nunes v. NBCUniversal Media, LLC, decided yesterday by Judges Guido Calabresi, William J. Nardini, and Eunice C. Lee:

Nunes brought a single claim for defamation under New York law based on (as relevant here) a statement made by Rachel Maddow, host of The Rachel Maddow Show ("TRMS") on MSNBC (owned by NBCUniversal), for which Cory Gnazzo served as the executive producer.

In December 2019, Nunes, who was then a congressman and ranking member of the House Permanent Select Committee on Intelligence ("HPSCI"), received something known as the "Derkach Package," from Andrii Derkach—a Russian agent linked to Russian efforts to influence the U.S. presidential election in 2020. The Derkach package was the subject of public discussion over a long period of time, including in a declassified Intelligence Committee Assessment that was released on March 16, 2021.

Two days after that release, on March 18, 2021, Maddow reported on the Derkach package incident, saying on TRMS that Nunes "refused to hand it over to the FBI, which is what you should do if you get something from somebody that is sanctioned by the U.S. government as a Russian agent." Nunes provided the court with evidence that Maddow's statement (the "Statement") was false. More specifically, a former staff member from the HPSCI testified in a deposition that the package, addressed to Nunes, was received by committee staff, placed in a secure location, and turned over to the FBI about two days after its arrival.

The court held that Nunes hadn't introduced enough evidence that Maddow spoke with "actual malice," which means knowing the statement was false or likely false:

[T]he undisputed evidence showed that Maddow and Gnazzo relied on the earlier-published Politico article and that such reliance cannot support a finding of actual malice. The Politico article stated that the Derkach packets had been sent to four people: Nunes, Senators Graham and Grassley, and then-White House Chief of Staff Mulvaney. According to the article, "Graham and Grassley denied having received the material, and Mulvaney and Nunes declined repeated requests for comment. One person familiar with the matter said the information was not turned over to the FBI."

Nunes argues that the Politico reporting does not support Maddow's statement that Nunes "has refused to hand [the Derkach Package] over to the FBI." But that is a natural reading of the Politico article. The dictionary definition of "refuse" cited by Nunes includes this meaning: "to show or express an unwillingness to do or comply with." According to Nunes, this definition shows that a person can "refuse" to do something only if he is "unwilling[ ] to … comply with" a request that he do so, and there was nothing in the Politico article to indicate that he had received any such request. But that is only one possible scenario covered by those words.

Nunes overlooks the other part of the definition that he himself quotes: that a person can be said to have "refused" to do something if he has "show[n] an unwillingness to do" it. Here, the Politico article clearly indicates that Graham, Grassley, Mulvaney and Nunes were all sent the material in question, and none of them gave it to the FBI. A fair paraphrase of this reporting, that Nunes got the Derkach Package but did not turn it over to the FBI, is that he was not willing (i.e., he refused) to give it to the FBI. Of course, the Statement did not parrot the Politico article word for word. But "[l]iteral accuracy is not a prerequisite: if we are to enjoy the blessings of a robust and unintimidated press, we must provide immunity from defamation suits where the journalist believes, reasonably and in good faith, that his report accurately conveys the charges made."

Maddow and Gnazzo's undisputed reliance upon the Politico article defeats Nunes' defamation claim. In New York Times v. Sullivan (1964), the Supreme Court held that a defendant's reliance on a responsible source negates a finding of "the recklessness that is required for a finding of actual malice." "Similarly, this Court has held that where reporters' false statements in an article were based on reliable sources, the defendant could hardly be accused of gross negligence, much less actual malice."

Nunes provided no evidence at the summary judgment stage that provided any basis for a reasonable inference that Maddow or Gnazzo should have regarded the Politico article as unreliable. We therefore agree with the district court's holding that Nunes failed to present evidence that NBCUniversal or its employees acted with actual malice sufficient to defeat summary judgment….

Elizabeth A. McNamara and Jeremy Chase (Davis Wright Tremaine LLP) represent defendant.

The post Devin Nunes Loses Libel Suit Based on Rachel Maddow Show Statements appeared first on Reason Magazine.

School choice in Ohio has taken a big hit. On Thursday, a panel of the state's 10th District Court of Appeals unanimously ruled the state's Educational Choice Scholarship, or EdChoice, program unconstitutional.

Vouchers Hurt Ohio (VHO), a coalition of public school districts, banded together in 2022 to sue the state over the EdChoice program, which uses public funds to finance scholarships for K-12 students to attend private schools. Under EdChoice's "Traditional Plan," which has been around since 2005, students can receive annual scholarships as high as $6,166 for elementary and middle school and $8,408 for high school. The scholarship's "Expansion Program," which state lawmakers created in 2013, awards maximum scholarship amounts identical to the Traditional Plan, "but scale based on a family's income," according to EdChoice, an educational freedom nonprofit. The organization says the scholarship program supports more than 100,000 Ohio families.   

The VHO argues that the EdChoice scholarship program drains funding from the public school system, depriving Ohio students of much-needed resources. Its website states "private school vouchers create a system of state-funded discrimination" and that school choice is a "myth." Interestingly, the Court of Appeals of Ohio's 10th Appellate District largely concurred.

The court's ruling came down to Article VI, Section 2 of the Ohio Constitution, which says that the state must secure a "thorough and efficient system of common schools."

The panel held that the EdChoice voucher program violates this mandate by funding a "competing system of uncommon schools." Writing for the court, Judge David Leland took the argument further, contending that EdChoice schools "actually end up depriving families of choice." He cited private schools' selective admissions process and urban concentration, calling the defendants' appeals to choice "a fundamental misnomer," because the choice to admit students rests with the schools, not the families.

Keith Neely, an attorney at the Institute for Justice who represents families using EdChoice in the case, argues that the program funds families rather than a competing school system.

He also challenges the court's rationale that the state's obligation to fund public schools implicitly prohibits them from funding other forms of education. "I think that's just fundamentally wrong as a matter of constitutional interpretation and also just as a matter of public understanding," he tells Reason.

The court "seemed to take the view that any dollar spent on other educational programs like scholarships is a dollar that could be spent on public schools instead, but that's not how budgeting works," he says. 

Neely says that public education funding is separate from the scholarship program and that every funding decision has tradeoffs. If the court finds that EdChoice's school voucher program violates the state's obligation to fund public schools, what stops it from reaching the same conclusion for other programs, like the Jon Peterson Special Needs Scholarship or the Cleveland Scholarship program, which provides private school tuition scholarships for K-12 students living in the Cleveland Municipal School District?

Neely also points to Simmons-Harris v. Goff (1999), where the Ohio Supreme Court partially reversed a lower court's ruling and found that school choice was constitutional under the same public-education clause. The court invalidated the Cleveland scholarship program in question, finding that it was "improperly enacted by the legislature," according to the Institute for Justice. However, the Ohio Legislature later reenacted the program.

The families using the EdChoice scholarship program—as well as the state's attorney general—plan to appeal to the Ohio Supreme Court, and Neely is optimistic that history will repeat itself in this case. He tells Reason, "When you look at what the Constitution says, and you look at what the court said in Simmons-Harris, I think the only conclusion that the Ohio Supreme Court can walk away with is that programs like the Educational Choice Scholarship program are constitutional." Families will be able to keep their scholarships while the litigation is pending.

This case is just one battle in a nationwide war on school choice. A recent report from Reason Foundation, the nonprofit that publishes Reason, found that 80 percent of public-school students live in states with "weak or ineffective open enrollment laws." These laws "allo[w]  students to transfer to public schools other than their residentially assigned one, provided space is available," writes Jude Schwalbach, senior policy analyst at Reason Foundation. Several states are also holding out against the Education Freedom Tax Credit, a new federal tax credit that offers a dollar-for-dollar tax refund for donating to K-12 scholarship programs. 

The court's decision reflects the broader rationale fueling that opposition: that education dollars going to anything other than public schools are taken from ordinary students. For decades, policymakers have invested in that premise, yet student outcomes have little to show for it. The real myth isn't school choice; it's that giving families more options means betraying students' education.

The post Ohio Court Strikes Down a Scholarship Program That Supports More Than 100,000 Families appeared first on Reason Magazine.

From Lajara v. McMenamin, decided Wednesday by Pennsylvania Superior Court judge Brandon Neuman, joined by Judges Jack Panella and Carolyn Nichols:

Mother argues the trial court erred by entering paragraph 111 of the final custody order, which allows Child to decline attendance at religious or faith-based events beginning at the age of 14, and prohibits both parents from influencing, restricting, or limiting Child's participation in those events before or after age 14. In doing so, Mother claims this provision "infringe[s] upon the parties' First Amendment right to the free exercise of religion and the parties' fundamental right to parent their child." …

Under the Due Process Clause of the Fourteenth Amendment, a parent has a fundamental right "to make decisions concerning the care, custody, and control of the child." Under the Free Exercise Clause of the First Amendment, an individual has a right to religious freedom. Read together, parents have the constitutionally-protected "right to direct the religious upbringing of their children." [Under Pennsylvania precedent,]

[A] court may prohibit a parent from advocating religious beliefs, which, if acted upon, would constitute a crime. However, … it may do so only where it is established that advocating the prohibited conduct would jeopardize the physical or mental health or safety of the child, or have a potential for significant social burdens….

[E]ach parent must be free to provide religious exposure and instruction, as that parent sees fit, during any and all period of legal custody or visitation without restriction, unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of present or future, physical or emotional harm to the child in absence of the proposed restriction….

While the harm involved may be present or future harm, the speculative possibility of mere disquietude, disorientation, or confusion arising from exposure to 'contradictory' religions would be a patently insufficient 'emotional harm' to justify encroachment by the government upon constitutional parental and religious rights of parents, even in the context of divorce….

As noted by Mother, "[n]either party in this matter requested the trial court order any form of relief regarding the exercise of their religious beliefs or … [C]hild's attendance and participation in religious activities. No evidence regarding either party's religion or … [C]hild's attendance and participation in religious activities was presented at trial." The trial court explained its reasoning for this provision, stating:

This trial court was forced to anticipate, to the best of its ability and in light of the factors proscribing stability and consistency for … Child, that a high level of conflict is more than likely to arise as it pertains to religious activities. To put it simply, these parents have demonstrated that any disagreement or dispute has and can easily escalate quickly into full scale conflict that does nothing more than cause instability and emotional trauma to … Child.

As such, this trial court proactively prescribed a solution to any issues that may arise regarding … Child's attendance and participation in religious activities. This trial court acknowledges that neither parent raised the issue of religious activities[;] however, the tumultuous history of this case does not produce any optimism on the part of this trial court that they will be able to communicate and cooperate if religious participation becomes an issue. As such, it is in … Child's best interests to preemptively place parameters on his attendance and participation in religious activities….

Though we recognize the parties' behaviors do not produce optimism that religion will not become an issue in the future, based on the record before us, the restrictions set forth in paragraph 111 are contrary to our case law since there is no indication the parties' religious beliefs or practices present a "grave threat of harm," "a substantial threat of present or future, physical or emotional harm to the child[,]" or that the physical or mental health, or safety of the child would be jeopardized absent a restriction. Accordingly, the trial court erred in setting forth paragraph 111 of its January 6, 2026 order. Consistent with precedent, both parents shall be permitted to practice his or her religion with Child during their respective periods of custody, so long as there is no substantial threat of present or future physical or emotional harm to Child….

The post Anticipated Religious Clashes Can't Justify Current Restriction on Parents' Religious Upbringing of Child appeared first on Reason Magazine.

The Democratic Socialists of America (DSA) candidates running for the House of Representatives and endorsed by NYC Mayor Zohran Mamdani are all but guaranteed to win their general elections this November, but that does not mean the midterm drama is over in New York. In the state's 17th congressional district, which includes the lower Hudson Valley, Democratic challenger Cait Conley, a combat veteran who served on the Biden administration's National Security Council, could unseat incumbent Republican congressman Mike Lawler in one of the most consequential races of the midterms. 

The highly contested purple district voted for former Vice President Kamala Harris in the 2024 election while reelecting Lawler for his second term. Now, Lawler is attempting to win a third term as support for President Donald Trump wanes ahead of the midterms. As of Friday, The Cook Political Report lists the race, which could determine control of the House, as a toss-up. 

If elected, Conley would have far more in common with the "Badass Women" coalition of security state and military veterans than with DSA types (think more Sen. Elissa Slotkin from Michigan than Darializa Avila Chevalier). As Judge Street Journal's Timmy Facciola notes, "Conley's candidacy is testing the viability of a tactful centrism that rebukes left-wing positions like abolishing ICE or restricting weapon shipments to Israel." Lawler is also vying for moderates, pitching himself as "one of the most bipartisan members of Congress" and emphasizing his willingness to break with Trump occasionally while still welcoming Trump's support. 

While Lawler and Conley certainly are not pure MAGA acolytes or DSA members, both have leaned into a tech-critical position, much like that of more radical populists like Lina Khan or Steve Bannon, revealing how pervasive anti-tech sentiment has become in mainstream politics. 

This tech skepticism was on full display during an October 14 debate, when each candidate made the case for why they were the most equipped to regulate AI, insisting that the industry needs guardrails. 

Conley said members of Congress do not want to regulate AI because "they want to look out for their billionaire and trillionaire backers like Elon Musk, who is pouring over $260 million into this midterm election." She then added that Musk backed Lawler in his 2024 race. 

Lawler then accused Conley, who previously consulted for Primer AI, of being "the AI candidate for the AI industry."

While Lawler and Conley disagree on specific data center regulations (Conley supports Democratic Gov. Kathy Hochul's data center moratorium while Lawler supports local zoning control over data centers), neither wants to pitch themselves as an explicitly pro-data center candidate. During the debate, Conley claimed that, "On Mike Lawler's watch there have been five data centers built in Rockland County." Lawler has said that he had no say in the decision to build the data centers, and during the debate, he pointed out that the facilities were built for financial services. Lawler also attempted to attack Conley over data centers, slamming her in an ad for saying "we need data centers." Regardless of the candidates' specific policies on data centers, their attacks on one another demonstrate that cheerleading hyperscale data center development is a political liability. In their district, data center has presumably become a dirty term. 

The candidates' tech-skeptical rhetoric did not end with unchecked data center development. After the debate, Reason asked both candidates about their positions on age-verification laws for social media and AI, since such regulations raise significant privacy and censorship concerns by age-gating the internet. Unsurprisingly, both Lawler, who voted for the controversial KIDS Act, and Conley, who has proposed stricter age verification for AI tools, parroted platitudes about why such online safety regulations are necessary to protect children. 

"We have watched how social media is literally hurting the mental health of children," Conley told Reason. "And when you talk about the power of AI and what that power could do, we have to regulate this." 

Lawler gave a similar response, telling Reason that he respects free speech but that protecting children "is paramount." 

This bipartisan consensus over social media regulation has long been brewing in Congress. The mainstream political conversations about AI and data centers, however, are relatively new this midterm election cycle. And it appears both Lawler and Conley have figured out which way Americans' sentiment toward AI is leaning, and they have waged their campaigns accordingly. 

The post Nobody Wants To Be the Pro-Tech Candidate in This New York Race That Could Flip the House appeared first on Reason Magazine.

From today's decision by Judge Richard Mark Gergel (D.S.C.) in Bingham v. Wilson:

Plaintiffs filed this lawsuit on behalf of several South Carolina physicians seeking injunctive and declaratory relief against South Carolina's Abortion Ban….  [Plaintiffs] seek an order: "(1) requiring all counsel and witnesses to refer to Dr. Doe using her pseudonym at trial; (2) closing the courtroom to the public and members of the press during Dr. Doe's testimony; and (3) permitting limited redactions to the trial transcript to conceal any educational or professional information that could indirectly identify Dr. Doe." Defendants have not filed any memoranda opposing the instant Motion….

The court refused to close the trial during Dr. Doe's testimony:

The Supreme Court has noted that "[t]he Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open[,] … [and] historically both civil and criminal trials have been presumptively open." … "For many centuries, both civil and criminal trials have traditionally been open to the public" ….

"The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered."

Applying these principles, the Supreme Court held that the right to a public trial may give way to a complete closure of the courtroom if: (1) the party seeking to close the hearing advances an overriding interest that is likely to be prejudiced, (2) the closure is no broader than necessary to protect that interest, (3) reasonable alternatives to closing the proceeding are considered by the trial court, and (4) findings adequate to support the closure are made by the trial court…. When a party seeks only a partial closure of the courtroom, such as "where an exclusion is temporally limited to a portion of the hearing," a "less demanding" test applies, which permits a court to order closure if the moving party establishes "a substantial  reason"  rather  than  an  "overriding  interest"  justifying  closure….

[T]he Court will not close the Courtroom proceedings during Dr. Doe's testimony. Here there are not sufficient circumstances to warrant closing the courtroom given the public's right to access and interest in the proceedings, especially given the nature of this case. As discussed above, civil trials are presumptively open and are a hallmark of our democratic forum of government as open trials "embod[y] a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings." …

The Court takes Dr. Doe's concerns about her safety very seriously. But the Court finds that the public's right of access to access is high in this case given its subject matter. As such, the record before the Court does not warrant closing the proceedings to the public when alternative measures can ensure her safety. The Court therefore will not close the Courtroom during Dr. Doe's testimony….

But it allowed her to proceed as Dr. Doe at trial:

[A]bortion is a divisive issue and there is a long "national history of harassment and violence towards abortion care providers." Women's Health Ctr. of W. Virginia v. Sheth (S.D. W. Va. 2023) (granting an abortion provider's motion to proceed pseudonymously because "retaliation is a genuine concern" for abortion providers and there is a serious risk of "harassment, threats, or other retaliatory action taken by those that disagree with access to abortion care"); see Roe v. Aware Woman Ctr. for Choice, Inc. (11th Cir. 2001) (holding that plaintiffs in abortion cases may be allowed to proceed anonymously and collecting cases). Moreover, the Court finds Dr. Doe's expressed concern of retaliation against herself compelling because she has been the target of threatening mail and doxing by anti-abortion activists…. [This] risk of physical … harm to plaintiff … weighs in favor of allowing her to proceed anonymously….

[Plaintiff's claim is also made stronger] given her previously stated desire to protect her children from harassment and retaliation by remaining anonymous.

The [claim being against the government] weighs in Plaintiff's favor because "[a]ctions against the government do no harm to its reputation, whereas suits filed against private parties may damage their good names and result in economic harm." … [And] the threat of prejudice to Defendants to be minimal since Dr. Doe has proceeded anonymously up to this point and because there is no risk of jury confusion since this is a bench trial. See James v. Jacobson (4th Cir. 1993) (recognizing the "concern that the jury's very knowledge that pseudonyms were being used" could "tend to validate" the plaintiff's claims); Doe v. Ayers (9th Cir. 2015) (noting "risk that the … use of pseudonyms might prejudice the jury" in the anonymous party's favor). Based on the circumstances of this case, the Court finds that Dr. Doe's stated interests in protecting herself against retaliation and harassment can be balanced with the public's interest in the openness of judicial proceedings by allowing Dr. Doe to proceed under a pseudonym at trial.

And the court also concluded that it "will partially redact the portions of the transcript that could indirectly identify Dr. Doe":

Additionally, the Court finds that redaction of selected portions of the trial transcript is an appropriate alternative to sealing the transcript in its entirety. This decision strikes an appropriate balance between the public's right of access to judicial records and proceedings and Dr. Doe's interest in her safety. This is especially true because the public's right to access Dr. Doe's education and professional information is limited, especially given the Court's decision to allow her to proceed anonymously due to her safety concerns. Furthermore, the public will retain access to trial records except for Dr. Doe's identity and the related information that could identify her. The Court also believes that this is a reasonable alternative to closing proceedings and no greater than necessary. Thus, the Court finds that the same safety measures as closing the Courtroom can be achieved with reasonable alternative measure of allowing Dr. Doe to proceed anonymously and redacting the portions of transcript….

As such, it is ORDERED that Counsel and witnesses will refer to Dr. Doe using her pseudonym at trial and that the trial transcript will be partially redacted to conceal any educational or professional information that could indirectly identify Dr. Doe. However, the Court will not close the Courtroom during Dr. Doe's testimony….

This leaves open the possibility that a spectator who knows what Dr. Doe looks like will see her in court and publicly identify her—nothing in the order forbids that—or that identifying information that is orally presented at trial will be publicized by a spectator even if it's redacted from the trial transcript. But presumably the judge concluded that this risk is relatively modest, and is justified by the need to preserve public access to the trial.

The post No Closed Courtroom When Plaintiff Dr. Jane Doe Testifies in S.C. Abortion Ban Challenge appeared first on Reason Magazine.

The Georgia officer responsible for killing a 1-year-old miniature donkey, HeeHaw, has filed a motion to dismiss the lawsuit against him, claiming the body camera footage proves he "reasonably believed the donkey posed an imminent threat to a fellow officer." But even if it doesn't, the officer argues he is immune from liability. 

In the early morning hours of August 30, Hannah Michelle Israel was at her Cedartown home in western Georgia when she received a distressing phone call. A supervisor with the Cedartown Police Department "tersely informed [Israel] that a donkey on her property had been 'dispatched,'" according to her federal lawsuit. After some clarification, she learned that police had not only entered her enclosed private property in the middle of the night without permission while looking for a missing person, but also shot and killed her miniature donkey in the process. 

Israel immediately set out to search for her beloved pet, HeeHaw, only to find her bottle-raised donkey's lifeless body alone in her field. Israel told ABC7 News the incident has left her "traumatized and shocked." She continued, "I honestly can't even believe he's not here…There's no words."

Demanding accountability, Israel filed a lawsuit in the U.S. District Court for the Northern District of Georgia in September against the shooting officer, Officer Trenton Ryan Garner, for violating her Fourth Amendment rights and submitted a separate demand for $1 million from the City of Cedartown.  

Last week, Garner responded by asking the court to dismiss the case, arguing in part that he did not violate Israel's constitutional rights when he entered her property. Under the open fields doctrine, there is no reasonable expectation of privacy in one's pastureland, even if enclosed. Further, the motion argues, exigent circumstances existed in the search for a missing 12-year-old girl. 

As far as HeeHaw is concerned, Garner claims he acted reasonably by using deadly force and argues the footage clearly shows HeeHaw "charging" and posing an "imminent threat to a fellow officer." 

However, the footage, posted by the Civil Rights Lawyer Raw, may not be so clear-cut. Garner's body camera was off at the time of the shooting but had a "rolling buffer of video," a recording without audio of the 30 seconds preceding activation of the camera, according to court documents. During the silent portion, two officers and a bloodhound are in front of Garner with flashlights in a dark field. A small donkey, roughly 3 feet tall, appears and slowly moves toward one of the officers. The officer backs away slowly, but the donkey moves closer and picks up speed. Garner pulls his gun and fires. The donkey turns and runs before falling over.

Whether Garner reasonably believed HeeHaw posed an imminent threat to his fellow officer may be up for debate.

When the audio kicks in, a fellow officer asks, "Why'd you shoot it up?" "I don't know," Garner responds rather nonchalantly before telling dispatch he had to shoot a donkey because "it was trying to attack." If another officer on the scene wasn't sure why Garner used deadly force, perhaps the decision wasn't so reasonable after all. 

In her lawsuit, Israel accuses Garner of needlessly killing HeeHaw "maliciously…and recklessly, with deliberate indifference…for [Israel's] constitutional rights." The suit continues: "No reasonable officer in…Garner's position would have believed that such force was necessary or justified." 

But whether Garner acted reasonably or not by shooting HeeHaw, qualified immunity may still shield him from accountability. Qualified immunity is a legal doctrine that protects government actors from lawsuits alleging rights violations, unless the right is clearly established. In practice, that means plaintiffs must be able to point to a previous court ruling in a case with the same circumstances to show that the right was obvious to government officials. 

The bar can be quite high to show a right is clearly established. For example, in March, the Supreme Court reversed a 2nd Circuit decision in a case involving an officer who was sued for using a rear wristlock to arrest a protester. The 2nd Circuit denied qualified immunity, reasoning that a previous case from 2004 clearly established that rear wristlocks used to arrest anti-abortion protesters constitute excessive force. But the Court disagreed, stressing that "principles stated generally, such as that 'an officer may not use reasonable and excessive force,' do not suffice." 

And while there may be ample cases involving officers shooting pet dogs, cases involving miniature donkeys are in short supply. If the court finds that there is no clearly established rule that specifically prohibits officers from shooting a miniature donkey moving toward a fellow officer in the dark, the court may end up dismissing the case and sidestepping both the reasonableness and constitutional questions entirely.

The post Georgia Cop Who Shot a Miniature Donkey Says Body Camera Footage Shows an 'Imminent Threat' appeared first on Reason Magazine.

President Donald Trump on Thursday called off plans to livestream the December 3 military execution of Nidal Hasan after the announcement generated widespread disgust.

Defense Secretary Pete Hegseth announced last week that the U.S. government would livestream the firing-squad execution of Hasan, a former Army major who shot and killed 13 people at the Fort Hood Army base in 2009. A court-martial jury sentenced Hasan to death in 2013.

It would have been the first public execution in the United States since a hanging in Missouri in 1937, though the last well-known public execution occurred a year earlier in Kentucky. Rainey Bethea, a black man, was hanged before a crowd of roughly 20,000 people in Owensboro. Kentucky became the last state to outlaw public executions two years later.

The plan to livestream Hasan's execution drew comparisons to the Taliban. The U.S. Conference of Catholic Bishops called it "a barbaric promotion of a culture of death." Writing at The Lamp, an orthodox Catholic journal, Matthew Walther noted that it would be the "first ever government-sanctioned snuff film in American history."

However, Trump and Hegseth didn't trip over just liberal and religious pieties, but a deep-rooted American aversion to bloody displays of state power that goes back to the colonial era.

Lynn Novick, the director of Ken Burns' upcoming PBS documentary series Crime and Punishment in America, tells Reason that public executions "haven't been a regular part of American life since the Colonial time in the early years of the Republic, and there's really good reasons for that."

One of American colonists' many complaints about oppressive British rule was England's expansive criminal code, known derisively as the "bloody code" because it contained more than 200 capital crimes.

"In Colonial America, [an execution] was an everyday occurrence," Novick says. "There were executions all the time, and one of our scholars told us that most people would have seen someone executed in their lifetime."

Excessive capital punishment also ran contrary to emerging theories by leading Enlightenment thinkers that punishment should be proportional to the crime and not driven by revenge or bloodlust.

Perhaps more importantly, public executions were disorderly affairs that, rather than reinforce the power of the state, inflamed the passions of the mob to a dangerous degree. "In many cases, crowds would become very boisterous, riotous, angry, excited," Novick says. "There were sometimes violent outbursts at these events."

As a result, many of the Founding Fathers saw frequent public executions as disruptive to the fragile social order. The early American republic's move away from sanguinary spectacle was driven by a desire to create a stable, virtuous citizenry and sever itself from the European continent's tradition of public torture and execution.

As Reason described in a recent cover story, the result of this was the invention of the American penitentiary in the early 1800s, which was sold as a humane and rehabilitative replacement for the whipping post and gallows.

States transitioned from public to private hangings behind their newly built prison walls in the late 19th and early 20th centuries, before switching to the use of the electric chair. This was not done out of entirely humanitarian concerns, especially in the South, where public executions often became quasi-religious ceremonies, with the condemned declaring their ultimate victory over death (and the state) through Jesus Christ.

"Executions had contested meanings," Michael Ayers Trotti wrote in The End of Public Execution. "They were moments of justice, of state power; but they were also moments of religion, exceptional moments that transcended normal life."

The main reason that public executions disappeared over the long term, though, is obvious to anyone who's not a sociopath: It's weird and dehumanizing to gather in a crowd to watch someone else be killed, to participate in the government's promotion of its power to take a human life.

Rachel Abbott, who witnessed Bethea's 1936 hanging when she was 5 years old, told WKU Public Radio in 2016 that she had nightmares about it years later.

"I remember it well, but I didn't want to," she said. "I tried to get away from it because it was hurting me so bad. I started having me nightmares after I was older. It's like his spirit was just hanging all around me. The first thing you'd know I'd start crying because I felt he wanted me to help him get buried, get sent back to his gravesite by his father. I still have tears running when I think of it."

The post America Abandoned Public Executions for a Good Reason appeared first on Reason Magazine.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New case! Last year, Texas passed a law prohibiting municipalities from prohibiting home businesses, so long as they don't cause parking or traffic issues. And yet! The City of Venus says IJ client Rosi Paredes cannot open a daycare (with a max of 6 kids) lest vehicles parked out front for a few minutes during pick up and drop off discommode the community. Rosi even offered to stagger arrival and departure times and have parents park in the driveway. That's bananas! Rosi is state-licensed and inspected; she has lots of experience; and her neighbors are eager to enroll their kids with someone they trust close to their homes. Click here to learn more.

New on the Short Circuit podcast: Interested in how to hide several kilos of contraband in a minivan but don't have time to watch The French Connection? Our episode is shorter.

1. California conservation group publishes a report recommending against consuming American lobster because, it says, fishing practices endanger right whales. Unsurprisingly, Maine lobster fishers disagree. Many would consider that just a difference of opinion; but for litigious lobstermen, it's supposedly defamation. First Circuit: The "group defamation rule" bars this suit because general statements about a large group generally aren't defamatory against the individual members.
2. You may wonder what could have turned out differently for Sebastian Flyte, of Brideshead Revisited, if London bobbies hadn't caught him drunk driving. The same may be true of a Pennsylvania man who was convicted of two DUIs over 20 years ago and now can't own a firearm. Third Circuit (en banc): Wonder no more as disarming him is unconstitutional. Concurrence: For this guy, sure, but in the future the gov't has set up an administrative process that'll let us get out of ruling on these. Dissent: Cars, like guns, are dangerous.
3. An old DUI may be one thing, but if you're convicted of "terroristic threats" you ain't ever getting your gun rights back, says the Third Circuit (en banc). And that's true even though some states used to bar tramps from owning guns because they were "outside the social and political order." Concurrence 1: Felons are all the same. Concurrence 2: Maybe we shouldn't be relying on old laws that excluded minorities from firearms ownership? Dissent: I get this crime sounds bad, but the dude did the time and now just wants his rights back.
4. Fairfax County and Arlington, Va. school districts adopt bathroom and overnight-stay policies allowing students to use the facilities "consistent with the student's gender identity." Feds: That's a Title IX violation. Schools: Actually, not having those policies would be a Title IX violation. Feds: Whatever, we're cutting your funding. The schools sue. District court: Too bad I'm not the Court of Claims. Fourth Circuit: For an injunction district court is fine. Remanded. Dissent: "Plaintiffs cannot bypass Congress' choice and sneak into district court by dressing up a contract claim in statutory clothes."
5. Since 1998, USAC, a private corporation established by the FCC, has administered the collecting of billions of dollars from telecom companies for use ensuring universal service in rural and underserved areas. Fifth Circuit: But Congress didn't specifically authorize USAC, nor did Congress having USAC run some temporary programs during the pandemic belatedly ratify it. So the FCC is going to have to have another look at its Fourth Quarter 2025 contribution factor.
6. Home renter in Jackson, Mich. objects to code inspectors entering her home for a suspicionless inspection based on an administrative warrant. She's arrested for obstruction, charges are dropped, then she sues the arresting officials for violating the Fourth Amendment by arresting her without probable cause. Sixth Circuit (unpublished): May I introduce you to the "clearly established" prong of qualified immunity?
7. Milwaukee officer runs red light, kills motorist. He didn't see the light change because he was either looking at his phone—he'd been sexting on a dating app—or at his computer. District court: Might be a substantive due process violation. Seventh Circuit: Cancel the trial. This doesn't shock the conscience. (Negligence claims were reportedly settled for the max under state law, $500k.)
8. In 2019, mom wins at custody hearing, but both kids want to go home with dad. A Taney County, Mo. judge—now unrobed—overhears their argument in the courthouse lobby and threatens to put the kids in foster care. When they still won't leave with mom, the judge has them locked in holding cells. (They leave with mom.) Eighth Circuit (2023): No judicial immunity. Eighth Circuit (2026): And no qualified immunity. That was so obviously unconstitutional that a prior case on point isn't necessary. The jury verdict stands. (IJ filed an amicus brief at each stage, urging these results.)
9. California's No Vigilantes Act requires non-uniformed federal law-enforcement officers in California to display visible identification. Feds: Intergovernmental immunity! Ninth Circuit: Intergovernmental immunity. A preliminary injunction must issue.
10. Man is convicted of federal murder for his role in the shooting and drowning death of a man off a fishing boat nearly three miles off the coast of California. The Ninth Circuit first takes us on a fascinating jaunt through 200 years of the federal gov't's jurisdiction over crimes at sea, determining that the feds can prosecute murders at sea. Nevertheless, the court vacates the conviction on account of the district court's dismissal of a holdout juror experiencing a mental health crisis. Given that her crisis was based on pressure from other jurors to reach a verdict, a mistrial was the only path forward. (His co-defendant fared poorly in her appeal.)
11. The feds generally have jurisdiction to prosecute crimes committed in Indian country, but not when both the victim and defendant are Indians. Tenth Circuit (en banc): Overturning precedent, we now hold it's the defendant's burden to prove their Indian status. So these two guys, whose convictions for crimes against Indian kids were vacated because the feds didn't prove their non-Indian status, are now going to have to prove their ancestry, tribal affiliations, etc.
12. This Tenth Circuit (unpublished) opinion is notable less for denying collateral relief to a federal inmate on an ineffective-assistance-of-counsel claim, and more for helpfully (and in your summarists' experience, unusually) including Westlaw links for the cited authorities.
13. Tenth Circuit: It's clearly established that officers mustn't shoot nonthreatening people who are armed with something other than a gun. And the distinctions this Oklahoma officer makes between prior cases and his fatal shooting of a man holding a bat are too minor to trigger qualified immunity. To trial this must go.
14. To vote by mail in Kansas, a voter must first send a written application to their county election office requesting a mail ballot. In 2021, the state enacted a law prohibiting private parties from partially prefilling those applications before sending them to voters. District court: The law was enacted with an improper purpose, which can be inferred from contemporaneous widespread public vitriol about mail-in voting. Tenth Circuit: The law's justifications, text, and enactment history reveal no such purpose, so the inference was unreasonable. The law survives intermediate scrutiny.
15. After a pair of wrong-door raids by federal law enforcement in Collinsville, Ill. in 1973, Congress amended the Federal Tort Claims Act to ensure victims of such raids would have a cause of action against not only the individual agents but also the federal gov't. Eleventh Circuit (2024): This Atlanta family, whose home was mistakenly raided by an FBI SWAT team in 2017, does not have a cause of action. Supreme Court (2025): Try again. Eleventh Circuit (2026): Actually, the SWAT team leader does not get qualified immunity, and we should take this case en banc to reconsider our FTCA precedent. (This is an IJ case.)
16. Florida imposes age restrictions on social-media platforms that use "addictive features." Platforms sue, alleging a First Amendment violation, and get a preliminary injunction. Eleventh Circuit: Reversed! The law is subject—and likely to survive—intermediate scrutiny. (Ed.: Judge Newsom has a very interesting self-concurrence about the continued viability of as-applied challenges under intermediate scrutiny in the wake of a curious footnote in the Supreme Court's ruling in West Virginia v. B.P.J.)
17. Déjà vu! Georgia imposes age restrictions on social-media platforms. Platforms sue, alleging a First Amendment violation, and get a preliminary injunction. Eleventh Circuit: Reversed! Plaintiffs put all their eggs in the "facial challenge" basket at the PI stage, and they just didn't build the necessary record.
18. Admission to the Florida bar costs $700 if you apply soon after law school. But if you've been a member of another state's bar for more than a year, the cost jumps to $1.6k and can go as high as $3k depending on the applicant's years of admission. Members of the bars of New Jersey and Michigan sue, alleging that the law violates the Dormant Commerce Clause. Eleventh Circuit: Nope. The law treats applicants alike, and "[t]here's just more to investigate for experienced applicants than there is for new ones."
19. And in en banc news, the Fifth Circuit (10-7) will not reconsider its decision that Texas's no-snapping-pics-in-bathrooms statute likely doesn't violate the First Amendment rights of a woman who photographed a transgender politician hand-washing in the women's restroom of the Texas State Capitol.

Bananas! The City of Grapevine, Tex. has ordered a learning pod run by a teacher with nearly 30 years' experience to vacate its rented space in the offices of a local museum until 10 pages of outrageous and costly demands (like rezoning and renovating) are met. This month, IJ sent the city a letter urging them to knock it off.

Nuts! The Town of Ogunquit, Me., a touristy spot with no shortage of whimsical yard art, has fined a family nearly $2k for having tin roosters in their yard because, it is said, the roosters are unpermitted advertising for the family's small business, a breakfast restaurant that's attached to their home. In fact, the roosters are lawn art that have become symbols of autism awareness; their six-year-old autistic daughter has found comfort in them during transitions to and from the school bus. This month, IJ sent the town a letter urging them to knock it off.

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

As the Trump administration's short-lived Department of Government Efficiency (DOGE) project implemented its plan to downsize the federal workforce, there was much wailing from the liberal institutions in Washington, D.C.

Federal employee unions filed lawsuits to block the effort. NPR ran profiles of federal workers who, for the first time, faced the prospect of potentially not having absolute job security forever. The Brookings Institution wondered how many jobs the federal government could shed before it crashes.

The answer: plenty. The Trump administration has cut more than 10 percent of the federal workforce, and the government hasn't crashed. Indeed, it hasn't even shrunk—if you're counting by dollars spent instead of people employed.

In a new article for City Journal, Manhattan Institute senior fellow Judge Glock highlights the tremendous gap between the dire predictions about DOGE's cuts and the reality that has emerged, more than a year after DOGE was shut down. Despite having only a modest impact on spending, Glock writes, DOGE "had a massive impact on the federal civil service."

This is true—to a point, more on that in a moment—and notable. Aside from a modest downsizing in the 1990s, the number of people employed by the federal government has been steadily growing for decades. Reversing that trend is one of the few genuinely libertarian accomplishments by the Trump administration.

The cuts to the federal workforce prove that "DOGE worked," argues Glock.

Well, hold on.

Elon Musk and Vivek Ramaswamy (who departed the DOGE project before Trump's inauguration and is now running for governor of Ohio) set some very ambitious goals after being appointed DOGE co-chairs in late 2024. In an op-ed for The Wall Street Journal in November 2024 where they promised "we won't just write reports or cut ribbons. We'll cut costs."

Musk repeatedly attached some rather absurd numbers to that promise. He said DOGE would cut $1 trillion or even $2 trillion in federal spending. In the end, it didn't come close. By DOGE's own (questionable) accounting, it cut $170 billion. Meanwhile, overall federal spending has increased in each of Trump's first two years in office, and the budget deficit has widened as well.

Yes, Musk and Ramaswamy also said they would reduce the federal workforce. But that was presented as a natural consequence of cutting spending, not as the primary goal.

Think about it like this. If I spent months promising my friends and family that I would lose 50 pounds on a new diet, and then didn't lose any weight, would it be fair to say the diet worked?

What if I reduced the number of donuts I eat every day, but still didn't lose any weight? Sure, that might be good for my health in some way—just like reducing unnecessary workers in the federal government is good for America's fiscal health—but it certainly wouldn't mean I had achieved the goal of losing weight.

Finally, even the claim that DOGE cut the federal workforce requires an asterisk. As Glock also notes in his report, the decline in federal workers has been offset by an increase in federal contractors.

It's not a one-for-one trade, of course. The new contractors are overwhelmingly concentrated in places like the Department of Homeland Security and the Pentagon, while the cuts mostly targeted other areas, like the Department of Health and Human Services.

"Most of that increase came from the buildup in homeland-security and defense contracting, including purchases such as surveillance aircraft and tanks, rather than substitutes for government workers," Glock writes. "DOGE achieved real contract savings, but these were more than offset by higher spending elsewhere, reflecting a shift in priorities rather than an overall reduction in contracting."

So, the government is eating fewer donuts but more pizza.

There might be libertarian reasons to prefer contractors over government employees. They are less likely to hold those jobs for life, for one. But there's nothing inherently good about a government policy that cuts jobs in some areas just to create more room in the budget for poorly trained immigration enforcement agents and defense contractors. That may even be a negative outcome for liberty.

In the end, the DOGE project looks less like a meaningful attempt at cutting government spending or employment levels and more like a way to purge parts of the federal workforce likely to get in Trump's way during his second term. "As long as [Trump's] larger commitment is to extending his power rather than rolling back power itself, you shouldn't expect the government to stop growing," as Reason's Jesse Walker wrote last year in comparing DOGE to President Richard Nixon's attempted purge of the civil service.

Did DOGE work? Only if you grade it on a pretty dramatic curve.

Yes, it proved that a president can slash bureaucratic jobs—particularly the bloated managerial and administrative types—without doing much damage to the government's core responsibilities. That's a lesson future administrations should remember.

Maybe, someday, a president will try applying the same logic to government spending too.

The post DOGE Worked? Only If You Grade on a Curve. appeared first on Reason Magazine.

Janeese Lewis George, a D.C. councilmember and the city's presumptive next mayor, has come out against pending legislation that would allow autonomous ride-share vehicles onto city streets, citing the technology's potential to eliminate the jobs of ride-share human drivers. 

"DC is facing a jobs crisis. Rushing the legalization of autonomous vehicles is irresponsible given the anticipated AI-related job displacement and disruptions that put countless workers at risk," she said on X yesterday.  

DC is facing a jobs crisis.

Rushing the legalization of autonomous vehicles is irresponsible given the anticipated AI-related job displacement and disruptions that put countless workers at risk.

— Janeese Lewis George (@Janeese4DC) October 15, 2026

In a follow-up post, she said that the D.C. Council should delay consideration of a pending bill that would allow Waymo, which is currently testing its technology with human safety operators on District streets, to offer autonomous rides to the public.  

Ever since Lewis George won a commanding victory in D.C.'s Democratic mayoral primary earlier this year, pundits and wonks have been trying to read the tea leaves on how the Democratic Socialist will govern. 

D.C.'s economy is currently in a rough spot. Unemployment is high. The housing market is down. Population growth is slowing.  

Lewis George's comments about Waymo suggest the mayor has a deeply mistaken view about the effects and benefits of technological innovation. Contrary to her contention, Waymo legalization is unlikely to exacerbate a "jobs crisis" for at least three reasons. 

The first reason she's wrong is that very few D.C. residents work full-time as ride-share drivers. On her Capital Commonsense Substack, Ashley Schapitl reports that, by Lewis George's own estimate, there are only 200 District residents who work full-time as ride-share drivers.

For comparison's sake, the District has a labor force of roughly 400,000 people. So even if Waymo displaced all human drivers in the District, it would be a statistical nonevent. 

Few headlines, for instance, reported that D.C.'s labor force shrank by 1,000 people between May and June. Neither did many outlets report that the labor force grew by roughly 600 people between July and August. 

Yet here the mayor is talking about a "jobs crisis" over what would be an even smaller change in the number of employed workers in the city. 

The second reason not to fear an exacerbated "jobs crisis" as a result of Waymo legalization is that autonomous vehicles (A.V.s) will not completely replace human rideshare drivers in the foreseeable future. 

In the cities where Waymo has been active for years, A.V.s are still responsible for a minority of rideshare rides. 

That's the case in Phoenix, where Waymo has been offering autonomous commercial service since 2020. In an article from April, Business Insider cites one study that put Waymo's market share at 16 percent of ride-share rides. 

In other words, 84 percent of ride-share rides are still being performed by humans a full six years after A.V.s came onto the scene. 

That isn't to say the impacts of A.V.s are necessarily positive for human drivers' earnings.

Another study by Gridwise from August 2025 found that A.V.s appeared to be marginally reducing drivers' hourly pay and number of trips per hour. That's evidence of the market for rides becoming more competitive, but it's not, as of yet, evidence of a job apocalypse. 

Network design matters too. In places like Los Angeles and San Francisco, Waymo is a standalone competitor to traditional ride-share companies like Uber and Lyft. In Austin and Phoenix, Waymo partners with Uber to offer rides on hybrid human-and-A.V. networks. 

A report by EnoTrans, funded by a grant from Lyft, found that the later cities' hybrid networks actually increased human drivers' trips per hour. Their pay-per-hour fell, albeit less steeply than in cities without hybrid networks. 

All of that is to say that while Waymo, as a competitor to human-operated ride-share services, shouldn't be expected to have a positive impact on drivers' earnings. It shouldn't be expected to have a catastrophic impact on them either. 

The third and final reason that Lewis George is wrong to think that Waymo will worsen a coming "jobs crisis" is that Waymo's employment impacts are not limited to its effect on competing human drivers. 

If Waymo earns any market share at all, it'll be because it's offering some travelers a better transportation option than the ones that currently exist. Increased ease of travel within the city would be expected to raise employment levels, not lower them. 

If Waymo makes it easier or cheaper for people to get from home to the office or from the office to their kids' school, they might be more willing to live in D.C. over Arlington or Silver Spring. If it's more convenient to get to the movies or dinner, residents will be more willing to patronize local businesses. 

None of that even touches on the economic and human benefits of Waymo's likely positive impact on road safety. 

The direct effects of Waymo on drivers' employment must be weighed against all the other economic activity that autonomous vehicles will facilitate. 

In the long run, the economic effects of autonomous vehicles may well be revolutionary. In the foreseeable future, they'll make the market for for-hire rides slightly more competitive. 

A reasonable assumption then is that Waymo will have a modest, but positive, impact on overall economic activity and employment in the District, even if it has a modest, but negative, impact on the small number of full-time ride-share drivers who live here. 

If the new mayor can't even tolerate that level of economic disruption, that does not portend good things for D.C.'s economy under a Lewis George administration. 

The post Presumptive D.C. Mayor Janeese Lewis George Demands Halt to Waymo Legalization To Protect Drivers' Jobs appeared first on Reason Magazine.

The Trump administration's attempts to fast-track construction of the president's long-promised border wall through Texas' remote Big Bend region have ground to a halt amid fierce opposition, protests, and legal challenges from landowners and conservation groups.

A federal judge on Wednesday released an opinion explaining her decision to issue a preliminary injunction blocking border wall construction through the Big Bend area. U.S. District Judge Kathleen Cardone found that the plaintiffs, which included the Center for Biological Diversity and several longtime residents of the region, had shown a substantial threat of irreparable harm if the construction project is allowed to continue.

The Trump administration wants to spend $7.5 billion building additional security infrastructure along a 500-mile stretch of the U.S.-Mexico border running through the Big Bend region, which includes Big Bend National Park. The federal government began sending threatening letters to property owners announcing its intent to acquire necessary pieces of their land this summer, and it waived several environmental regulations, allowing it to put bulldozers on the ground inside the national park by September.

However, numerous groups and local landowners say the border wall project will alter their way of life and permanently scar one of the most rugged and pristine landscapes in the country. The project attracted bipartisan criticism and protests.

Cardone also found that the plaintiffs were likely to succeed on their claims that Department of Homeland Security (DHS) Secretary Markwayne Mullin exceeded his authority when he issued environmental waivers for the project.

The injunction is a temporary reprieve for property owners such as David Keller, an archaeologist and part-time river guide on the Rio Grande River. The original plans for the border wall expansion would have cut through Keller's 10-acre property near Redford, Texas, putting a 30-foot-tall wall on the levee that sits between the river and the rest of his land.

Keller says the Trump administration gravely underestimated how much anger its tactics and attitude would generate.

"It's a level of arrogance—they're just used to being able to bulldoze over people," David Keller says. "They were moving forward as if they weren't expecting any resistance, but boy, they're due for a wakeup call. And they're having it right now."

Keller is a plaintiff in a separate lawsuit against the DHS by Conserve Big Bend, a coalition of landowners, conservationists, river tour guides, researchers, and other affected parties.

Keller says he's loved wild, open country since he was a child, and as soon as he saw the region in the 1990s, he decided he would find a way to live and work there, which he's done for the past 25 years. "It's visually magnificent," Keller says. "It's incredible. It's like no other place I'd ever seen. It's one of the last unspoiled places remaining in the lower 48."

Keller says it's where he plans on being buried, too, although these days he's unsure whether to say "plans" or "planned." The proposed border construction is an existential threat to the life he's built, he says, and if the wall goes up, he'd likely move.

"I didn't come down here to live in a cage," Keller says.

The proposed border wall would not only block access to the river for farmers, ranchers, and outdoors enthusiasts along the river, as well as block the view into Mexico, it would wreck "the whole feeling of the place, the historical cross-border culture that we've developed," Keller says.

So far, the federal government has not tried to seize any private property in the Big Bend region through eminent domain, although it sent letters to property owners this summer requesting access to survey their land and warning them that it held the option to invoke eminent domain if they did not quickly sell.

Both Keller's and the Center for Biological Diversity's lawsuits argue that the department's justification for building and expediting additional border infrastructure in the Big Bend Region are factually and legally incorrect. The DHS determined that the sector of the border is an "area of high illegal entry."

However, despite making up roughly a quarter of the entire U.S.-Mexico border, the Big Bend sector only accounted for between 0.3 percent and 2.2 percent of total border-wide arrests over the past 30 years.

Cardone cited the low apprehension numbers in her finding that Mullin exceeded his authority to issue the waivers.

"The unrebutted evidence shows that the Big Bend Sector is, by far, the sector with the lowest rate of migrant apprehensions along the entire U.S.-Mexico border, both in terms of gross totals and apprehensions per mile of border," Cardone wrote. "Therefore, if the Big Bend Sector is an area of high illegal entry, so is every other sector, and the waiver authority would apply to the entire U.S.-Mexico border."

The post Landowners in Texas' Big Bend Region Fight Trump Administration's Attempts To Seize Land for Border Wall appeared first on Reason Magazine.

The article is here; from the Introduction:

According to the Supreme Court of the United States, I am the lead singer of The Slants. I am not. I have never been. I am the bassist—the founder, the bassist, and the person who spent the better part of a decade fighting the federal government over the right to use our band's name. Anyone who has ever listened to our music, attended one of our shows, or spent a few moments searching our name would know this. But the Supreme Court's opinion in Matal v. Tam says otherwise, and because it does, so do the law review articles, the IP textbooks, and the classroom discussions that have built up around the case in the years since it was decided.

I raise this not to embarrass anyone. I raise it because it is a precise and verifiable illustration of something that practitioners and scholars who study Matal v. Tam should understand: The legal record of a landmark case is not the same thing as what actually happened. The opinion is not the case. The briefs are not the strategy. And the story that has calcified in the legal literature—about what this case was, how it developed, and why the decisions made along the way were made—contains gaps and errors that only a firsthand account can correct.

This article is that account.

Almost a decade has passed since the Supreme Court unanimously struck down the disparagement provision of Section 2(a) of the Lanham Act. In that time, Matal v. Tam has been cited in hundreds of law review articles, briefed in subsequent First Amendment cases, and assigned in IP and constitutional law courses across the country. Scholars have analyzed the decision's doctrinal implications, its impact on subsequent cases like Iancu v. Brunetti, and its effect on the registration of marks by marginalized communities. What they have not done—because they could not—is tell the story of how the case was actually made.

That story is more complicated, and more instructive, than the legal literature suggests. Matal v. Tam is taught as a First Amendment case. It was not designed as one. It became one through a sequence of institutional interventions—each of which narrowed the legal question, foreclosed certain arguments, and ultimately transformed a trademark dispute about cultural identity into a constitutional referendum on government speech regulation. Understanding that transformation is not merely historically interesting. It changes how practitioners should approach impact litigation involving marginalized communities, how law professors should teach the case, and how future litigants should think about what they are actually fighting for when they bring a case that institutions decide to use for their own purposes.

The errors in the legal record are the place to start, because they are evidence that something is missing.

The post Journal of Free Speech Law: "How <i>Matal v. Tam</i> Became a First Amendment Case: The Record and the Reality" by Simon Tam appeared first on Reason Magazine.

Today's guest is Brazilian economist Fernando Ulrich, one of Latin America's leading experts on Bitcoin and a longtime advocate of free market economics. His 2014 book, Bitcoin: The New International Currency, helped popularize the cryptocurrency in Latin America, where decades of inflation and government mismanagement have made alternatives to state-controlled money especially appealing. But Ulrich doesn't believe Bitcoin needs to replace the dollar to succeed, and he argues that its greatest contribution may be challenging the government's monopoly on money.

Nick Gillespie spoke with Ulrich at the Winds of Change conference in Buenos Aires, where they discussed why the AI investment boom may be drawing capital away from Bitcoin, whether Javier Milei has delivered on his promise to transform Argentina's economy, and how stablecoins are threatening national currencies. They also explore the Austrian school of economics, the risks of protectionism, and why Ulrich believes Bitcoin can expand individual freedom even if it never becomes the world's dominant currency.

0:00—Is Milei delivering on his economic promises?

4:29—Argentina's central bank

7:35—Bitcoin as a payment system

10:10—Bitcoin's adoption rate and volatility

16:38—Is AI a bubble?

19:03—What does Paul Krugman get wrong about Bitcoin?

23:13—China's relationship with Bitcoin

24:24—Differences between Bitcoin and stablecoins

28:25—Subjective value theory

32:40—The Cypherpunks and the concept of exit over voice

37:49—Will an economic crash accelerate Bitcoin adoption?

40:04—Tariffs and free trade

44:18—Why Bitcoin won't replace all currencies

45:26—Nationalism

48:39—2046 Bitcoin prediction

The post Bitcoin Is a Threat to Government-Controlled Money appeared first on Reason Magazine.

We all know Elizabeth Holmes is a villain. 

She promised a radical new technology—bloodwork performed in a countertop-sized machine from a single droplet taken from your finger. She was young, photogenic, and self-possessed; she dressed like Steve Jobs. Her invention would disrupt the $60 billion bloodwork industry, bringing cheap, frictionless health monitoring to the masses. Or it would have, if it worked. Holmes was convicted of defrauding investors of nearly $500 million; she's currently serving an 11-year prison sentence. Holmes has been written about extensively, and her story was turned into an Emmy-winning Hulu series starring Amanda Seyfried. She is an avatar of Big Tech mendacity, a cautionary tale as much as a person.

Everyone knows the story. You would think there is nothing left to say. But you'd be wrong. 

Just before she entered prison, Holmes invited documentarians Nathan Fielder and Lance Oppenheim to live with her, her boyfriend Billy Evans, and their two young children in their beachfront San Diego rental unit, promising them full access, complete transparency. The result is this year's most entrancing documentary, You Can See Everything. When the camera captures Billy in the shower, the movie delivers on its titular promise; you, uh, really can see everything. 

Yet what you cannot see is who Holmes really is. The mystery of the era's most famous fraudster is the movie's central riddle: Is she cynical, calculating, a stone-cold liar and psychopath? Or is she something stranger—a damaged and delicate person who genuinely believes her lies, or at the very least, genuinely believes the stories she tells herself to justify those lies after the fact?

Fielder and Holmes seem uncertain themselves; the movie is, in part, their own attempt to wrestle with their own ambivalence, their own inability to come to a conclusion. It's a hall of mirrors about the infinite unknowability of a person, even given unfettered access. 

The documentarians do not absolve her of her villainy; the movie is not an attempt to excuse her fraud or build a case for her innocence. But they offer something exceptionally rare in this era of simplistic hero and villain narratives: genuine and deeply felt empathy for someone on whom the culture (not to mention the legal system) has cast final judgment. In the process, they have given us one of the strangest, most unsettling, and most poignant films of the year. You Can See Everything is a small miracle of a movie. 

It's sometimes said that the most compelling villains don't believe themselves to be villains. They have an internally coherent story to tell that excuses their actions, makes them the heroes in their own minds. Fielder and Oppenheim have given Holmes, and viewers, the gift of allowing Holmes a measure of psychological complexity. You don't see into her mind, because that's impossible. But you see that the story she tells herself is different from the story the world tells us about her. It's surprisingly kind and generous; it's also tricky as hell—to the point where you, the viewer, might wonder if you're the one being tricked. 

Halfway through, the movie takes a meta-turn that I won't spoil, entering into high-concept territory in an attempt to more deeply explore what art and images can reveal about a human psyche. It's formally audacious, often funny, and actually justifies the three-hour running time. I've never seen anything quite like it.  

The exercise left me just as unsettled as the documentarians seem to be themselves; uncertain about Holmes and her motives, and nearly as uncertain about Fielder and Oppenheim, two talented filmmakers who appear to be questioning not only the nature of their chosen form, but of reality, especially psychological reality, themselves. There are times when You Can See Everything borders on magical realism, except the magic comes from the complexity of human nature and storytelling, as if Gabriel García Márquez had written a story about a man with a camera that could see into souls. It's dizzying, dazzling, a sort of postmodern Rashomon of perspective shifting.

As I left the theater, in something of a daze, I found myself thinking of a line from the great Saul Bellow novel The Adventures of Augie March, "Nobody should be a mystery intentionally. Unintentionally is mysterious enough." In the case of Holmes, it's impossible to tell which it is. All we can say is this supposedly one-note Big Tech villain, like perhaps everyone, is better understood as some kind of mystery, even to herself. 

The post The Elizabeth Holmes Documentary <i>You Can See Everything</i> Is an Act of Radical Empathy appeared first on Reason Magazine.

Musk is the big Paxton funder: According to campaign filings released yesterday, Elon Musk sent $158 million in September to a super PAC that immediately gave that amount of money to a group backing Texas Republican Ken Paxton's Senate bid against Democrat James Talarico.

"On Sept. 9, the first day of the GOP midterm convention in Dallas, Musk gave $75 million to SLF," reports The Texas Tribune. "The next day, SLF put $75 million into a new entity called Texas PAC. By the weekend after the convention, the new super PAC was up on the air with a positive spot about Paxton's work on sex trafficking and a negative ad attacking Talarico as being for 'they/them, not you.'"

Then, two weeks later, "Musk gave an additional $83 million to SLF, according to the group's filing. Sure enough, SLF deposited $83 million into Texas PAC's coffers the following day."

It would be wild if Paxton still loses. Paxton has been embroiled in rolling scandals for years, and some current polls have him underwater by 13 points. A New York Times/Siena survey found only 38 percent of likely Texas voters believe he has "good character," versus 56 percent for Talarico.

Paxton was indicted on securities fraud charges in 2015, and that case dragged on for most of a decade before ending in a pretrial agreement. Then the Texas House, led by Republicans, accused him of bribery and abuse of public trust and successfully impeached him in 2023. The charges centered on allegations that he used his office to help donor Nate Paul—so you can imagine why Musk might want to curry favor with Paxton. Though Paxton was later acquitted by the state Senate, scandal keeps chasing him: Last year, his wife, state Sen. Angela Paxton, filed for divorce on "biblical" grounds, citing adultery as one of the reasons.

Of course, many Republican voters at the state level saw the impeachment as nothing more than a political hit job, one echoing what's happened to President Donald Trump at the national level. But what far-right, already-convinced Republicans believe about Paxton is sort of beside the point: He needs turnout, and he needs to win over more moderate Republicans and maybe even some fence-sitters if he hopes to beat Talarico. It's possible Musk's cash infusion will help, but it's also possible a cash infusion of many millions of dollars won't be enough to rehabilitate Paxton's shitty image.

A poll from the University of Texas and Texas Politics Project conducted in August "contained four major warning signs for Paxton: a drop in his support from June, lagging GOP motivation to vote, worse favorability numbers than Talarico and Trump's approval being underwater in the state."

Scenes from New York: "When Gov. Kathy Hochul first ran for re-election, Republicans in New York tried to prey on fears over crime, rising inflation and illegal immigration to boost the chances of their ticket statewide in the critical 2022 midterms," reports The New York Times. "The strategy seemed to work. Republicans flipped four House seats in New York, while putting a scare into Ms. Hochul, who eked out a six-point victory over Lee Zeldin, then a Long Island congressman who now leads the E.P.A." This year, Republicans have picked Bruce Blakeman, the Nassau County executive, as the guy with the best odds of beating Hochul, and they're running on crime fears again. But it's not working so well.

The crime and public disorder is, to my mind, still a problem, but it's not as rampant as it once was during the peak pandemic years. And it's certainly not perceived as very bad right now.

QUICK HITS

• "Three children and a teacher were killed, and two others were critically wounded, in a shooting Thursday at Silver Rail Elementary School in Bend, Oregon, authorities said," reports CBS News. "The suspect, a 16-year-old male, was shot and killed by a bystander, Bend police said.…Officials would not say exactly what type of weapon was used in the attack or how many rounds were fired. Multiple law enforcement sources told CBS News the suspect used a shotgun, and The Associated Press cited a law enforcement official briefed on the incident as saying it was a pump-action shotgun purchased by his mother."
• "A climate of radical paranoia around AI seems like it will be a feature of our world for the foreseeable future," writes Ross Douthat in The Free Press, "because human beings are really good at being paranoid about mysterious new things. With, of course, the AI doomers themselves being a prime example: As Mike Solana of Pirate Wires notes in his own recent reading of the doom canon, the prophecies of Yudkowsky and Co. are already moderately less credible insofar as they don't account for their own cultural success."
• "Taiwan is preparing to tighten export controls on AI chips to further align with US restrictions, according to a senior official in Taipei, joining a Trump administration clampdown on the smuggling of cutting-edge semiconductors to China," reports Bloomberg. "Taipei plans to add artificial intelligence servers and cutting-edge semiconductors to a list of controlled items, Taiwan's Minister of Economic Affairs Kung Ming-hsin told Bloomberg News. After the measures take effect, he said, shipping restricted AI hardware to China will become a criminal offense under the Foreign Trade Act."
• I'll leave you with a quote from Kennedy (not John or Robert) to start your weekend off right: "Kimberly [Guilfoyle] talked about sex so cavalierly that she made Samantha from Sex and the City seem like Greta Thunberg."

The post Musk's Meddling appeared first on Reason Magazine.

Here's what happens when I search for "mason soiza spammer with a gold lamborghini"; that headline is the title of a Times (London) article:

The article thus doesn't show up in the search results, though other items that point to it do show up. I get similar results when I search, without a site:thetimes.com limitation, for "web entrepreneur faces inquiry over online sale of painkillers" (another article about Soiza). And I get similar results when I search for site:thetimes.com "mason soiza":

The DMCA complaint specifically targeted, among other items, these Times pieces:

https://www.thetimes.com/uk/healthcare/article/web-tycoon-mason-soiza-24-faces-inquiry-over-online-sale-of-painkillers-3jhjzd5kz

https://www.thetimes.com/business/companies-markets/article/mason-soiza-spammer-with-a-gold-lamborghini-58gxblv9c

The claim in the DMCA complaint was that the Times articles infringed the copyright in an OnlyFans page, https://onlyfans.com/angiestonex. That claim appears not to be accurate, yet Google did indeed deindex articles in a major newspaper based on the claim. (The newspaper would presumably be able to file a DMCA counternotification and get the matter reconsidered, but they may have been unaware of the situation.)

Interestingly, the DMCA complaint also targeted one of my posts, ttps://reason.com/volokh/2018/11/10/forged-uk-court-order-aimed-at-vanishing/ ("Forged U.K. Court Order Aimed at Vanishing Newspaper Article About English Businessman Mason Soiza"), but that post has not been removed from Google search results.

The post Google Blocked <i>Times (London)</i> Articles About Businessman Mason Soiza, Apparently Based on Unjustified DMCA Demands appeared first on Reason Magazine.

My recent trip to Malibu from Los Angeles was my first post-wildfire drive through the Pacific Palisades and, my goodness, there's nothing like seeing something with one's own eyes to grasp the enormity of the devastation. The obliterated hulks along Pacific Coast Highway 21 months after the tragedy raise multiple issues, including ones related to the excruciatingly slow rebuilding process.

This being California, the state has yet to grapple sufficiently with the reasons the wildfires started—and the failed response to them. But late is better than never, so I applaud a new report that Gov. Gavin Newsom commissioned from the nonprofit Fire Safety Research Institute. Released this month, it looked at the nitty-gritty of how the fires started and how multiple agencies reacted. The results aren't pretty.

The New York Times provided the best summary: "The comprehensive analysis found that while several state and local agencies fell fatally short in their preparation and response, the clearest lesson from the disaster was the extent to which climate-driven fires are outstripping modern firefighting." The report found LA officials failed to take the fires seriously enough at the outset. County officials handled the Altadena evacuations in a "chaotic" manner. They were unprepared for the intensity of the fire storms.

We've all read about some of the inexplicable stupidity. The Santa Ynez Reservoir was empty during the fires because of a repair to its protective cover, yet it's empty again (although it's in the process of being refilled). The California Coastal Commission allegedly delayed new permits for the Los Angeles Department of Water and Power to install fire-resistant utility poles because of concerns about an endangered weed. The commission disputes that report—and there's still heated debate involving multiple agencies.

If we can't get multiple agencies on the same page on one minor question about milkvetch, I'm skeptical California can deal with the basics. The report said the tragedy involved "multiple interlinked systems rather than any single factor or failure." In one example by Patch, the Los Angeles County Sheriff's Department remained at normal staffing levels. The Los Angeles Fire Department was reportedly so concerned about overtime costs that it reportedly responded slowly.

This epitomizes California's approach to everything: Bigger agencies, higher spending, and expanded workforces. The left hand never knows what the right hand is doing. Other priorities outside of public protection—budgeting, meeting union demands, turf battles—take precedence. This isn't malicious, but reflects the fundamental nature of government.

Even after the state suspended rebuilding regulations, the rebuilding process is still in a quagmire because of the number of involved agencies. How could California realistically streamline a wildfire-fighting process that involves an alphabet soup of local, county, regional, and state bureaucracies? Even the feds are involved because around 45 percent of the state's land area is owned by them. The wildfire issue is a statewide problem, so the conclusions should resonate beyond LA.

Furthermore, the report argues that California needs to change its overall approach toward wildfire resilience. Back to the Times analysis, which noted that climate-driven fires are becoming more intense and that's challenging the traditional ways that the state has battled wildfires. But how often have you seen governments respond efficiently to external economic or environmental changes? All governments are slow-moving freight trains.

Everything government does is mired in the past. As an unrelated example, the nation's education system isn't much different than the one created in the 1800s—despite all the technological changes that should have sparked a revolution. When COVID hit, private schools adapted and provided successful at-home learning, whereas the public schools watched students fall behind and truancy rates soar. It's not any different with any public service, including firefighting.

My fear: California policymakers will read that summary about "climate-driven" fire risks and do what they always do: blame the problem on climate change and double down on the state's counterproductive climate policies. They are designed to change the entire Earth's weather patterns (even though California is responsible for less than 1% of the world's greenhouse emissions), rather than adjust our regulatory system to make us more resilient in the face of warming trends.

California's union-controlled state and local governments aren't about to adjust firefighting budgets so they can further stretch their dollars. State firefighters generally earn more than $250,000 in annual total compensation, with some Los Angeles firefighting officials earning pay levels that boggle the mind. Instead of trimming costs, California has been ratcheting up pay levels.

California state officials haven't even been forthright about their approach toward brush clearance. For instance, four years ago Newsom touted an important wildfire-prevention program that at the time hadn't completed a single project. We hear promises, but little action.

That's government for you. It doesn't do anything well and is incapable of learning the right lessons even from the best reports. Driving along PCH was just my latest reminder of this sad truth.

This column was first published in The Orange County Register.

The post Why Are California's Governments So Lousy at Fighting Wildfires? appeared first on Reason Magazine.

This week, the Trump administration announced it's expanding its stake in semiconductor manufacturer GlobalFoundries. This brings the government's share of the company to over $2 billion, according to President Donald Trump, and it's only one of roughly three dozen companies in which this White House has acquired a piece of the action. This is a disturbing development for Americans who favor free enterprise and don't want the government to control the means of production.

While it may be a while before the opportunity arises to roll back state intervention in the economy, given the drift of both major parties away from faith in the marketplace, the Cato Institute has launched a project to get the process started.

$2 Billion Government Stake in One of 35 Once-Private Firms

"The U.S. Department of Commerce will receive equity in GF of approximately four percent, further enabling the American public to share in GF's growth," GlobalFoundries announced Monday in a press release about a U.S.–Japanese initiative to open two new semiconductor manufacturing facilities.

"This brings our total Investments to 1.63 Billion Dollars, and now, the U.S. Government's stake is worth over 2 Billion Dollars," Trump confirmed on Truth Social.

The announcement's triumphant tone isn't necessarily shared by people who wonder what the government's ownership stake in one company will do to regulation and investment in the industry. Will fully private firms challenging a state-backed player experience an even playing field?

In a July CNBC survey of 1,000 U.S. voters, 49 percent of respondents said it is "not appropriate for the federal government to own a portion of a U.S.-based company." Nineteen percent considered it appropriate, and 32 percent had no opinion.

"Washington's expanding involvement in the businesses it regulates threatens the competition and innovation that underpin American prosperity," warns the Cato Institute's Tad DeHaven on the launch of the Restoring Free Enterprise project. "Our project will examine the consequences of that involvement and chart a path toward getting Washington out of the boardroom."

Restoring Free Enterprise's Government Ownership Dashboard shows the U.S. government owning shares in 35 companies. The recent deal with GlobalFoundries comes on top of an earlier equity stake, giving the government 7 percent ownership of the firm. Other big deals include an 8.4 percent stake in Intel, a claim on 20 percent of distributions above $17.5 billion in Westinghouse, and an arrangement granting the U.S. government the right to appoint a director for U.S. Steel and to veto decisions over matters including investment and production.

Why might this be a problem?

When Government Enters the Market, Competition Is Undermined and Decisions Politicized

In an analysis for the Center for Strategic and International Studies, Sujai Shivakumar, Charles Wessner, and Christina Tutino cautioned that direct government ownership could create "conflicts between the role of the government as an investor in a particular company and its role as a regulator (e.g., regarding export controls) of firms across the wider industry." They added that preferential treatment for state-linked forms could "distort competition, stifle innovation, and potentially lead to monopolies or market concentration in strategic sectors."

"Once government crosses the line into equity ownership, the game changes," agreed economist Vance Ginn in a 2025 piece for the American Institute for Economic Research. "It's no longer about setting fair rules of the road—it's about Washington joining the race as a participant. That undermines competition, politicizes corporate decisions, and exposes taxpayers to risks they never agreed to take."

Basically, when the government gets involved in any industry, it complicates matters for the companies in which shares are held, for competitors who must worry that regulators will put their thumbs on the scale to help favored firms, and for the market in general. Overall, government interference of any sort in market transactions does more harm than good, and direct ownership makes things even worse.

"Federal rate controls, excessive taxes, barriers to restructuring, and rigid labor rules weakened private railroads in the mid-20th century, just as automobiles, buses, trucks, and airlines were intensifying competition," Cato's Chris Edwards points out in a case study for the Restoring Free Enterprise Project. Congress then created Amtrak to maintain the passenger train service its red tape had helped strangle, but despite plans for the railroad to be self-sufficient, "it has never earned a profit and has received tens of billions of dollars in subsidies."

Proposals for Reform, but Is Anybody in D.C. Interested?

The project acknowledges the Trump administration's intention to encourage U.S. manufacturing and to meet strategic defense goals. But it points out that private, profit-seeking firms are what made the U.S. prosperous and dominant in so many fields to begin with. The government should get out of the way of the market if it wants the country to continue to thrive.

As alternatives to state ownership of companies, Restoring Free Enterprise proposes permitting and regulatory reforms that "shorten reviews, remove unnecessary requirements, reform the Jones Act, and recognize out-of-state licenses" for workers. The project also recommends free trade agreements that reduce barriers to international commerce, the removal of export and procurement barriers, tax reforms involving expensing, and immigration reforms that simplify processing and make it easier for foreign-born college graduates to remain in the U.S.

The obstacles to implementing these reforms are substantial. The administration, while criticizing the Democratic Party's growing affection for socialism, itself embraces government ownership of companies, mercantilism, and heavy state intervention in economic decisions and activities. The Democratic Party has long been less market-oriented than the Republicans, and despite the GOP's transformation, a growing share of Democrats are openly socialist advocates for state control.

"American political leaders on the left and right are rebelling against the market-first consensus that dominated Washington for four decades," concluded Axios's Courtenay Brown and Neil Irwin in July. "It's evident in everything from the Trump administration taking government stakes in dozens of private companies to socialist candidates winning Democratic primaries promising a more active government role in the economy."

U.S. politicians are happily adopting damaging policies that are at odds with the country's prosperity-building tradition of free markets. The Restoring Free Enterprise project would reverse that unfortunate trend, but it's not obvious that many people in D.C. are interested in joining the fight.

The post As D.C. Embraces State Economic Control, a Hopeful Project Seeks to Restore Free Enterprise appeared first on Reason Magazine.

10/16/1898: Justice William O. Douglas's birthday.

The post Today in Supreme Court History: October 16, 1898 appeared first on Reason Magazine.