From N.Y. State Div. of Hum. Rts. V. D. Auxilly NYC LLC, decided today by New York appellate judges Sallie Manzanet–Daniels, Manuel Mendez, Barbara Kapnick, Bahaati Pitt–Burke, and Matthew Parker–Raso:
Complainant, at the time a Missouri resident, emailed D. Auxilly, a New York based business that produces and sells attire, including bridal outfits, to inquire about a bridal jumpsuit she had seen advertised on one or more of D. Auxilly's social media pages. Specifically, complainant requested information about payment options for the jumpsuit. Complainant also informed D. Auxilly that as her fiancé had "fallen in love" with it after struggling to find anything she liked, complainant wanted to purchase it for their upcoming wedding.
Dominique Galbraith, D. Auxilly's owner and operator, responded on behalf of D. Auxilly advising complainant of the payment requirements of the business but that she would not be able to make the garment for a same-sex wedding because it would go against her religious beliefs. She also urged complainant and her fiancé to reconsider getting married….
The First Amendment does not shield D. Auxilly from liability for this discrimination. Unlike the baker in Masterpiece Cakeshop v. Colorado Civil Rights Comm (2018), D. Auxilly was not asked to design and create customized items which might constitute an "expressive statement." Nor was it tasked with creating a customized wedding website, as in 303 Creative LLC v. Elenis (2023). Instead, D. Auxilly refused to sell the wedding garment it had previously designed and which it had marketed to the public. While the garment likely would need to be adjusted for sizing, this potential sizing alteration would not constitute an expressive statement. Neither would D. Auxilly's "speech" be compelled here by requiring it to sell the previously designed and marketed garment.
Enforcement of the [law] here also does not violate D. Auxilly's right to free exercise of religion. The statute is "neutral, both on its face and due to a lack of evidence that it targets religious conduct for a distinctive treatment."
{[T]he Division had jurisdiction in the instant matter because the discriminatory conduct occurred in New York and its impact was felt in the state. Complainant reached out to D. Auxilly, a business which markets its clothes as "made in New York," seeking to purchase goods from this New York business. D. Auxilly's discriminatory conduct based upon complainant's sexual orientation deprived complainant of an opportunity to engage in commercial activity here. Indeed, by affirmatively labeling its products as being "made in New York" but then refusing to sell those same "New York" products to people of a certain sexual orientation, D. Auxilly implicitly associated the City and State of New York with a discriminatory act, and the impact test is satisfied. Additionally, the fact that complainant communicated with D. Auxilly online through social media rather than traveling to a New York storefront does not deprive petitioner of jurisdiction over this matter.}
Finally, we find the awards of compensatory damages [$5,000] and civil penalties proper. The award to complainant is reasonably related to the wrongdoing, supported by evidence before the Division, and in line with other awards for similar injuries. Likewise, the civil penalty of $20,000 is neither disproportionate to the offense nor does it shock the conscience.
My thoughts:
Bridal jumpsuit! New one on me. A quick Google Images search further enlightened me.
Pedantically speaking, wouldn't it be "her fianceé" rather than "her fiancé"?
Oh, wait, there's a legal issue here. Well, I think that there's a First Amendment right not to be compelled to create speech, such as photos, videos, and web sites, and I've argued this since 2012. But I don't think there's such a right as to fundamentally nonspeech products, even ones that people use as conventional parts of ceremonies, such as cakes or jumpsuits (as I've argued since 2017). The precise line, of course, can at times be fuzzy, e.g., as to cakes or jumpsuits that have specific expressive decorations (e.g., words, possibly rainbow designs, etc.), but it's still a sensible line; for more on that, see this amicus brief that Dale Carpenter and I put together in Masterpiece Cakeshop.
For more on the designer, see here and here; for more on the case, see here.
Melissa Franco and Michael K. Swirsky (New York State Division of Human Rights) represent the state.
On December 2, the Supreme Court will consider constitutional challenges to "assault weapon" bans in Connecticut and Cook County, Illinois, that cover widely owned rifles, including the AR-15. As the plaintiffs in those consolidated cases see it, such laws plainly violate the Second Amendment because they prohibit arms in common use for lawful purposes. In briefs filed on Wednesday, Connecticut and Cook County urge the justices to reject that test, saying a weapon's popularity is not dispositive. The relevant question, they say, is whether their rifle restrictions fit a historical tradition of banning "unusually dangerous weapons."
Cook County and Connecticut have the burden of showing that their laws are "consistent with this Nation's historical tradition of firearm regulation," the test established by the Supreme Court's 2022 decision in New York State Rifle & Pistol Association v. Bruen. On the face of it, that is a daunting challenge.
In the 2008 case District of Columbia v. Heller, the Supreme Court said the Second Amendment protects the right to own "bearable arms" that are "in common use" for "lawful purposes like self-defense." That description indisputably encompasses "AR-15 platform and similar semiautomatic rifles," the firearms at issue in these cases. But Heller also recognized "the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'" Cook County and Connecticut argue that the rifles they have deemed intolerable fall into that category.
"There is a robust historical tradition of regulating unusually dangerous weapons that
compromise public safety," Cook County says. "Such regulations, which long
predate the founding, have included outright bans and other restrictions on exceptionally dangerous weapons like launcegays, trap guns, Bowie knives, and slung shots."
Cook County argues that its ordinance is "relevantly similar" to those historical restrictions because it targets "exceptionally lethal weapons that are disproportionate to the end of self-defense." AR-15s are "offensive weapons of war designed for maximum lethality and are not customarily used for self-defense," the brief says. "The purpose and operation of the ban is consistent with our Nation's historical tradition and accounts for the exceptional dangerousness of these technologically advanced weapons."
The ban is "an appropriate contemporary restriction implemented by the legislature in response to dramatic technological change and unprecedented societal concern," the brief says. "It is tailored to respond to the particular dangers presented in areas with mass casualty exposure and acute public safety risk."
Connecticut offers a similar argument. One problem with this defense is the premise that "assault weapon" bans focus on "exceptionally lethal weapons." As critics of such laws have been pointing out for decades, the features they target, such as folding stocks, pistol grips, and barrel shrouds, do not affect a rifle's basic operation. With or without them, a rifle fires the same ammunition at the same rate with the same muzzle velocity. And because AR-15s use intermediate-caliber ammunition, they are arguably less lethal than shotguns and many hunting rifles that are not classified as "assault weapons."
Cook County's emphasis on technological developments is also questionable. Constitutional guarantees establish principles that courts routinely apply to technologies that did not exist at the founding. Although the Framers did not have radio, television, or the internet, for example, the First Amendment nevertheless constrains government regulation of those media.
More specifically, Heller rejected the idea that modern weapons are not covered by the Second Amendment by recognizing a constitutional right to own semiautomatic pistols. The Supreme Court said "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." The Court confirmed that point in the 2016 case Caetano v. Massachusetts, which involved a state ban on stun guns.
Cook County also asserts that AR-15s are not suitable for self-defense, a claim that would be hotly contested by many owners of such rifles, who commonly report using them for that purpose. "Plaintiffs have shown that AR-15s are well-adapted for self-defense," U.S. District Judge Peter Sheridan wrote in 2024, when he reluctantly concluded that New Jersey's AR-15 ban was inconsistent with Heller while expressing his dismay at that result. "Evidence has been presented to the Court that the build of the AR-15 makes it well-suited to self-defense because it is 'light weight, [has] very mild recoil, and [has] good ergonomics'; it is a weapon which is 'well suited to younger shooters, female shooters, and other shooters of smaller stature.'"
Sheridan added that "the AR-15's design features—including the effectiveness of its cartridge for self-defense use and its better continuity of fire when used with available magazines—make the AR-15 a good choice for self-defense." And he noted that "the AR-15 has been used recently in several, relatively high-profile self-defense events in Florida, Illinois, Texas, Pennsylvania, and Oklahoma."
Cook County and Connecticut are also wrong in suggesting that self-defense is the only "lawful purpose" that matters. While Heller emphasized the use of handguns "in defense of hearth and home," it did not say that was the full extent of the Second Amendment right. To the contrary, the phrase "lawful purposes like self-defense" implies that the right extends to other uses, such as hunting, pest control, and target shooting. The decision explicitly mentioned hunting as a "reason Americans valued the ancient right."
The briefs are misleading in another way that may prove decisive. They conflate "dangerous and unusual" with "unusually dangerous," which is not the same thing.
During the 19th century, state legislators restricted (and sometimes banned) weapons such as Bowie knives, spears, sword canes, slungshots, and brass knuckles. But the historical evidence suggests those weapons were not targeted simply because they were "unusually dangerous." Legislators were also concerned about how the weapons were typically used.
Solicitor General D. John Sauer, who filed a brief supporting the challenges to the AR-15 bans, notes that the 19th-century laws targeted weapons associated with "duels, brawls, and other criminal activities." And in reviewing those laws, state courts distinguished between arms favored by criminals and arms commonly used for lawful purposes.
In 1871, for example, the Tennessee Supreme Court held that legislators could ban weapons that were "not usual" but could not ban "the usual arms of the citizen." The top courts of Texas, Arkansas, West Virginia, North Carolina, and Michigan concurred that the right to arms encompassed weapons commonly owned by law-abiding people, including rifles.
AR-15s and similar rifles readily pass that common-use test. In January, the National Shooting Sports Foundation, the gun industry's trade association, reported that Americans own more than 32 million "modern sporting rifles," its preferred term for the models covered by "assault weapon" bans. Survey data suggest that somewhere between 16 million and 25 million Americans have owned AR-15-style rifles. Last year, a unanimous Supreme Court described the AR-15 as "the most popular rifle in the country."
According to Cook County and Connecticut, however, none of that matters. "Once it is established that a regulation pursues a legitimate public safety objective in a permissible manner, raw ownership numbers cannot immunize a firearm from regulation," Cook County says. It argues that opponents of its ordinance have misconstrued the significance of the common-use test and misunderstood how it interacts with Bruen.
"When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct," the Supreme Court said in Bruen. "To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'"
The common-use question, Cook County argues, figures only in the first Bruen step: "the inquiry whether the weapon at issue is one 'the Second Amendment protects.'" But even if ownership of AR-15s is covered by "the Second Amendment's plain text," it says, that does not resolve the question of whether they can be banned, which depends on the historical analysis required by the second step of the Bruen test.
"This Court's decision in Bruen confirms that the Second Amendment's step-two inquiry does not insulate popularly owned firearms from regulation," the brief says. In Bruen, it was "undisputed" that "handguns are weapons 'in common use' today for self-defense," including "outside the home." But "instead of being the end of this Court's inquiry, that observation was just the beginning." The decision also included an "extended analysis" of the historical laws that New York cited to justify its "proper cause" requirement for carry permits. "If lawful common use alone were enough to forbid regulation," Cook County argues, "there would have been no need to engage in that careful and prolonged analysis."
The question in Bruen was not whether the Second Amendment precludes "regulation." It was whether New York's specific approach, which required residents to demonstrate a "special need" before they were allowed to exercise the right to bear arms, was consistent with the historical tradition. That is why the Court considered (and rejected) the purported historical analogs that New York offered.
Cook County conflates requirements for carry permits, the issue in Bruen, with an outright ban on ownership, the policy it is defending. Connecticut likewise blurs the distinction between carry restrictions and complete prohibition.
"The Bowie knife was 'widely carried by Americans of all stripes,' including 'upstanding citizens and villains' alike," Connecticut's brief says. "The widespread use of Bowie knives and other weapons for lawful purposes did not prevent dozens of States from restricting those weapons." But those laws generally restricted or banned public carry. They rarely made it illegal to acquire or possess a Bowie knife, which is the approach that Connecticut and Cook County have taken with AR-15s.
That policy is hard to reconcile with Heller. I will quote Sheridan again, since his comments made it clear that he would have preferred to uphold New Jersey's AR-15 ban. Under Heller, he said, "a categorical ban on a class of weapons commonly used for self-defense is unlawful." Given "the Supreme Court's clear direction on this point," he concluded, New Jersey's law "is unconstitutional" as applied to "the Colt AR-15 for use for self-defense in the home."
Last July, the U.S. Court of Appeals for the 3rd Circuit agreed and went further, extending that conclusion to "the full class of semi-automatic rifles" banned in New Jersey. "Together, Heller and Bruen teach that bans or broad prohibitions on possessing or carrying of a class of weapons in common use for lawful purposes fail to find support in our Nation's tradition of firearm regulation," Judge Arianna Freeman, a Joe Biden appointee, wrote in the majority opinion. "That principle resolves our inquiry here."
To beat back the challenges to their laws, Connecticut and Cook County will have to persuade the justices that the 3rd Circuit's understanding of Heller and Bruen is wrong, meaning they are free to ban firearms in common use for lawful purposes. That seems like a tall order, and Cook County's position is especially puzzling. According to its brief, the fact that a weapon is covered by the Second Amendment does not mean Americans have a right to possess it. The more you think about that claim, the less sense it makes.
Way back in May 2024, I wrote about Miller v. McDonald. Amish parents challenged New York's vaccine mandate on Free Exercise Clause grounds. In December 2025, the Supreme Court GVR'd the case in light of Mahmoud. Unsurprisingly, the New York courts thought Mahmoud changed nothing. The case is now back before the Supreme Court. A cert petition was filed on September 28.
The New York Times covered the case in an article titled, "Amish Families Pushed to Undo a Vaccine Law. Then Measles Arrived." The undercurrent of the article is that Amish children deserve to become sick because their parents did not vaccinate them. The New York Health commissioner made this point expressly:
In a petition filed on Sept. 28, the Amish asked the U.S. Supreme Court to force New York to grant religious exemptions to immunization rules, as most states do. A previous ruling gave the Amish reason to think they might have a chance at prevailing.
But then a wave of measles cases began sweeping through Amish communities. Gov. Kathy Hochul declared a statewide health emergency this month after more than 100 people fell ill with measles.
"Perhaps Mother Nature, by delivering a measles outbreak in New York's Amish community coincident with this case returning to the Supreme Court, is her not-so-subtle hint," said Dr. Howard Zucker, who was state health commissioner when New York eliminated religious exemptions.
If only the Amish people chose the state over their religion, and took the hint, they wouldn't have so many sick children! I am appalled by Zucker's arrogance and hostility to religion. He is stating that "Mother Nature" is sending a signal to the Amish that adhering to their religion is making children sick. In effect, nature is punishing the Amish for not submitting to Kathy Hochul.
Chief Justice Burger described this unique community in the Supreme Court's unanimous Wisconsin v. Yoder decision:
The history of the Amish sect was given in some detail, beginning with the Swiss Anabaptists of the 16th century, who rejected institutionalized churches and sought to return to the early, simple, Christian life deemphasizing material success, rejecting the competitive spirit, and seeking to insulate themselves from the modern world. As a result of their common heritage, Old Order Amish communities today are characterized by a fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence. This concept of life aloof from the world and its values is central to their faith.
A related feature of Old Order Amish communities is their devotion to a life in harmony with nature and the soil, as exemplified by the simple life of the early Christian era that continued in America during much of our early national life. Amish beliefs require members of the community to make their living by farming or closely related activities. Broadly speaking, the Old Order Amish religion pervades and determines the entire mode of life of its adherents. Their conduct is regulated in great detail by the Ordnung, or rules, of the church community.
It is especially awful for Zucker to weaponize "Mother Nature" (capital letters) against a people whose life is devoted to "harmony with nature."
This is not the first time New York has accused insular religious communities of spreading diseases. In October 2020, then-Governor Andrew Cuomo shared a photograph of religious Jews congregating in close quarters as evidence they were spreading the disease. He said, "I'm going to say to the orthodox community tomorrow if you don't agree then we will have to close down your religious institutions." The only problem was that the photograph was from the 2006 funeral of Hassidic rabbi Moshe Teitelbaum. And the photo wasn't even from New York City. It was taken in the Orange County village of Kiryas Joel. This charge really isn't new. Jews were blamed for the spreading of the Bubonic Plague, among other pandemics.
The Times gestures at the religious reasons why the Amish oppose the vaccines:
But many Amish families regard vaccine mandates — and government intrusion in their schools — as a greater threat to the health of their community than measles. Their religion calls for adherents to live together in tightknit religious communities apart from the modern world and its influences.
"Our almighty God wants us to fully put our faith and trust in him, which is in conflict to put our trust in vaccines," Ezra Wengerd, an Amish leader who represents the 26 families that send their children to the three schools, told a judge in 2022.
The Amish have been practicing their faith for more than three centuries and have principled reasons to oppose vaccines. Indeed, the Amish have a far stronger case to object to vaccines than many people who made up their beliefs during the pandemic. Shame on the New York government for singling out this tradition in such hostile terms.
Zucker and others do not seem to know or care what it means to place faith in a higher power. Instead, Zucker thinks Mother Nature is seeking retribution against the Amish children.
Yet, perhaps we should be grateful. This sort of statement should feature prominently in future briefing. Indeed, Zucker demonstrates the sort of hostility we've seen in past victories for religious liberty. In the leadup to Fulton v. City of Philadelphia, a government official said that "things have changed since 100 yearsago," and "it would be great if we followed the teachings of Pope Francis, the voice of the Catholic Church." And in Masterpiece Cakeshop, a commissioner said "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust." These statements are prima facie evidence of religious hostility.
So thank you Mr. Zucker. You've made the odds of your state losing far greater.
People sometimes ask me whether I would ever want to live in New York again. The answer is 1000% no. This state consistently exhibits so much hostility towards people of faith. Here in Texas, some people object to posting the Ten Commandments on the wall of classrooms as some evidence of hatred. But no piece of paper can compare to the overt disdain towards traditional religions that people like Zucker and Cuomo demonstrate. So long as religious people get vaccinated and attend services on Zoom, they are in good standing with the government. But as soon as any person of faith deigns to disagree with elite opinions, then Gaia will seek vengeance.
These people are living in an episode of Captain Planet. (I cringe that as a child I absorbed this Turnerfied propaganda.)
Of all the arguments for protectionism, the infant industry argument probably has the strongest theoretical appeal. By protecting a new industry from its more developed foreign competition, the story goes, tariffs give domestic producers the time to grow, learn, and become efficient enough to stand on their own. Domestic consumers feel the short-term pains of higher prices, but they enjoy the long-term gains of job growth and lower prices as the new industry blossoms.
It's no secret that tariffs have driven significant price increases over the last year and a half. A study from the New York Federal Reserve finds that tariffs "contributed 2.9 percentage points to goods price inflation" and that without tariffs those prices would have slightly declined. Tariff defenders, looking for a new reason to claim these higher prices are only temporary, have reimagined the infant industry argument. Now it's being used to support trade barriers in industries that are over a century old, but the promise is exactly the same: Domestic firms need the protection so they can compete, innovate, and cut costs until prices come back down even further than they were before the tariffs.
Michael Brendan Dougherty recently made such an argument in National Review, arguing that "tariffs can, over time, bring prices below where they started." When economist Don Boudreaux called the argument "bizarre," Dougherty replied that critics had failed to acknowledge the dynamic process by which markets respond to tariffs "by adapting and cutting costs." Although he is light on specific details, he posits that the changed incentives of a "paradigm shift" in tariff policy will spur domestic competition, leading to the theorized price reduction. Of course, firms would still respond to the dynamic processes of domestic competition without a tariff wall, but the point stands.
From there, the reworked infant industry argument becomes the standard version advanced more than two centuries ago by Alexander Hamilton and his disciple Friedrich List. When Hamilton made this claim in 1791, his argument may have seemed suitable for a new nation seeking to firm up its economy and security against established European powers.
Others at the time pointed out that special interest groups—a manifestation of the "violence of faction" so thoroughly dissected in theFederalist Papers—had already begun to coalesce around the fledgling iron industry in Pennsylvania, clamoring for protective tariffs. Two years earlier, James Madison had warned about a "premature policy of stimulating manufactures" driving tariffs too high. In the end, Hamilton recommended and Congress enacted a far more moderate tariff schedule than his theoretical musings portended. American iron manufacturers received a consolation prize of a higher tariff on their competitors than the rate for most general imports. Hamiltonians have been touting the infant industry argument ever since.
Nearly 250 years later, those same infants apparently have yet to advance into adulthood. Steel, the direct successor to the founding-era iron manufacturers, remains a singular focus of President Donald Trump's protectionist tariff policies, just as it was under former President Joe Biden. And former President George W. Bush before him. Indeed, steel has been a recurring beneficiary of protectionism for most of America's existence.
This extended period of protectionist infancy suggests that the argument needs a new name. We propose the "Peter Pan industry argument" for companies that never grow up because tariffs make sure they never have to.
The question tariff advocates rarely ask is: Why do some American producers have higher costs than foreign rivals even in the face of lower-cost foreign competition? The answer comes down to specific rules and choices within particular firms and industries. Tariffs, and protectionism in general, address none of these. No industry illustrates this like steel, but it is far from the only one.
In 1947, United Steelworkers won a contract provision known as Section 2-B. Among other things, this barred mill managers from changing established work practices unless new technology required it. Steel companies tried to get rid of this in 1959, finding it difficult (given union incentives) to establish that technology required change. In response, 500,000 steelworkers went on strike for 116 days. This strike sent buyers abroad, causing 1959 to be the first year the U.S. imported more steel than it exported. One of the then-new technologies that was delayed was basic oxygen furnaces, which could produce steel far faster and cheaper than the open-hearth furnaces that were so common. In 1965, only about 17 percent of steel made in the U.S. was made using the basic oxygen furnace. Japan produced 55 percent of its steel with this faster, more efficient method.
Change finally came from a steel customer. Vulcraft, a maker of steel joists, grew tired of paying Big Steel's prices and waiting for Big Steel's deliveries. In 1969, free from steel unions and preconceived notions, the company looked for new steel-producing technologies and found the answer in the electric arc furnaces that had been adopted in much of the world throughout the 1950s and '60s. Vulcraft's parent company later renamed itself Nucor, and minimills like the ones it pioneered now make most of America's steel.
So the modern steel industry was built by a frustrated steel buyer who found a way around protected companies. In other words, the U.S. steel industry has lagged behind the technologies found around the world.
We could go on, but the broad point here is that the "relatively higher domestic production costs that made the tariff 'necessary' in the first place," as one critic put it, are often the result of preventing competition in the first place. It's odd to suggest that further preventing competition through tariffs will somehow alleviate the ills of already-prevented competition.
Tariff advocates fail to acknowledge that the ability to import steel also comes with the benefit of access to cheaper steel for steel-using industries, such as manufacturing. A 50 percent tariff on steel further closes the release valve that imported steel offers. Buyers of steel are then left to purchase more of the more expensive domestic steel. Because new steel mills take years to bring online, this causes delays and longer delivery times for manufacturers.
We don't have to wonder what happens when a country lowers its tariffs on materials used by manufacturers. India did this in the '90s, and researchers found that newly available inputs accounted for 31 percent of the new products that Indian manufacturers introduced. And what happens when the U.S. imposes tariffs on steel? Downstream U.S. firms become less competitive. This is why American businesses clamor for exemptions to tariffs, especially for tariffs on materials like steel.
Perhaps all this could be forgiven if tariffs advanced national security concerns, as tariff advocates assert. They point out that an adversarial nation could cut off supplies of critical materials during wartime and cripple America's ability to defend itself. Unfortunately, tariffs fail there too.
First, this conflates production with access. While domestic production does ensure domestic access, access can be secured without production. In the case of steel, the Commerce Department reports that in 2025, the U.S. imported steel from 79 countries, with Canada being our top foreign supplier. The top 10 sources of steel are responsible for 77.8 percent of America's steel imports. None of those countries were considered adversaries—at least not until the tariff crusades pushed these friends away. What's more, according to the American Iron and Steel Institute, only 23 percent of finished steel in the U.S. was imported in 2024. Far from being exposed to foreign states' whims, American access to steel is incredibly resilient.
Second, this view ignores the positive effects of trade and globalization on national security. The Center for Strategic & International Studies finds that increased trade between countries reduces the likelihood that they'll go to war against one another. Globalization helps ensure that domestic access continues unabated should war break out, thanks to the diversity of trading partners.
When Hamilton made the infant industry argument, he at least assured us that the industry would at some point advance to adulthood and stand on its own. Steel, like so many other Peter Pan industries, has proven Madison right. These industries have refused to grow up, and it's time to stop pretending that tariffs will fix that.
In my role as a political commentator, I enjoy making predictions. I possess no special talent for this and am often hilariously wrong: Unlike most other pundits, I famously clung to my stupid belief that former President Joe Biden would never step down as the Democrats' 2024 candidate, for instance. I called the 2020 presidential election correctly (and got most states right, only flipping Georgia and Florida), but I messed up in 2024. (Nevertheless, I still demolished my co-host, who didn't appear to take this challenge very seriously.)
The hardest part about making predictions is separating what you want to happen from what is actually likely to happen. Commentators often feel inclined to rally for their preferred outcome, as if shouting about it on television is going to make it come true. In some ways, this is an easier temptation for us libertarians to avoid, since all outcomes generally seem suboptimal. Once again, that is the case: See, for example, the upcoming 2026 midterms.
It seems inarguable that President Donald Trump has squandered much of his political capital by failing to focus narrowly on the economy and instead launching another unpopular war in the Middle East. It also seems obvious that the Democratic Party, once returned in power, will do everything it can to thwart the administration's shrewdest policies—on tech and AI in particular.
But that is my prediction: Democrats will retake the House of Representatives and the Senate.
I don't have any specific map in mind for the House (it's too complicated), but here are my Senate predictions:
Here is my REVISED prediction for the Senate. For the last several weeks, everything has moved in Dems' direction, and I now expect them to take it.
When I looked at the map back in August, I still thought Ohio was a long shot for the Democrats and that Michigan was in play for the GOP due to Abdul El-Sayed being so far left. Now it looks to me like Republicans will lose both seats, along with Texas and Alaska. I'm still betting that the formidable incumbent in Maine, Sen. Susan Collins (R), will hold on—the polls have misjudged her in the past—and that Iowa is a bridge too far for Dems. If Republicans manage to keep those two seats, then it's a 51–49 map in Democrats' favor.
But wait…all is not lost for Trump.
In the event of a 51–49 Dem advantage, it seems somewhat likely to me that Sen. John Fetterman (D–Pa.) could switch parties, which would restore Republican control because of Vice President J.D. Vance's tiebreaking vote. With his conservative rhetoric on Israel and other issues, Fetterman has no future as an elected Democrat in his state—he could never ever ever win a Democratic primary—and will have to strike some sort deal with Trump before his reelection in 2028. Fetterman should agree to become an independent who caucuses with Republicans in exchange for Trump ensuring that no Republican dares run against him in the future. Absent such a deal, Fetterman is virtually guaranteed to be a one-term senator, so if he harbors any desire to keep his job—perhaps that's an open question—he will need to make a move. A 51–49 Senate will give him the exact leverage he needs.
So those are my predictions! What are yours?
This Week on Free Media
I'm joined by Amber Duke to discuss the riots in France, Vivek Ramaswamy's terrible campaign ad, and more.
Worth Watching
Here's another shameless plug for my upcoming debate with Katherine Mangu-Ward, Mehdi Hasan, and Jason Stanley! (Katherine is on my side.) If you are in Washington, D.C., please get tickets here.
U.S. Customs and Border Protection (CBP) seized a psychiatric nurse practitioner's phone filled with confidential patient information at Washington Dulles International Airport last week, according to a new lawsuit. Muhammad Numaan Imam alleges that CBP agents told him that they could take his electronics the "easy way or the hard way" and refused to let him talk to his lawyer because "we are the authorities at the border."
The lawsuit by the American-Arab Anti-Discrimination Committee (ADC) may be the first time CBP is taken to court over seizing people's medical records. ADC is also helping Palestinian-American lawyer Jay Shehadeh and Jewish-American journalist Max Blumenthal sue over their devices being seized.
"We're seeing a pattern where officers use their border-search authority not to advance any legitimate border-related purpose, but to punish individuals for refusing to provide access to their personal electronic devices and for having expressed views the government didn't approve of," ADC president and legal director Jenin Younes wrote in a statement emailed to journalists.
While Shehadeh and Blumenthal claim that CBP is retaliating for their political views, Imam argues that he faced threats and retaliation with the simple act of asserting privacy rights. Both Imam and Shehadeh were considered "trusted travelers" under the Global Entry program, which allows American citizens who undergo a background check to pass through an automated fast track at airports and borders.
Asked by Reason, a CBP spokesperson did not address any specifics of the case, giving only a generic statement about how "CBP's ability to lawfully inspect electronic devices crossing the border is integral to keeping America safe in an increasingly digital world."
The border exemption to the Fourth Amendment gives U.S. authorities the power to look for "contraband" crossing into the country without a warrant. There is a mess of contradictory court rulings on whether that power includes searching travelers' electronic data, but in practice, CBP can simply seize the physical devices that the data live on.
And the agency often lies outright to travelers whose data that it wants to search, as documents recently released in the case of Atlanta protester Samuel Tunick show. CBP agents gave Tunick a false reason for detaining him and falsely promised that he would be allowed to leave with his phone if he cooperated, even though they were under orders to seize his devices no matter what. Tunick is now on trial for allegedly tricking the CBP agents into deleting his data to avoid a search.
"It's happening to a lot of people, and it's being used in this coercive, inappropriate way," Younes tells Reason.
The problems for Imam, who lives in Virginia, actually began at another border. He was heading to Istanbul on Saturday for a family vacation with his Pakistani wife, Khadijah Mansoor, and their 1-year-old child. Turkish authorities demanded to see Mansoor's U.S. green card, which she had forgotten at home, and wouldn't let her enter on her Pakistani passport alone. The family had to board the next flight back to Washington. On their arrival, CBP naturally wanted to know why they had been turned away and why Mansoor didn't have her green card.
But things took a weirder turn after agents told Imam he had been "flagged" for undisclosed reasons, pulled him into a separate room, and began questioning him about his social media use and group chats, according to the lawsuit. (Imam tells Reason that they asked about group chats in general, not any specific group chat.) When agents asked for the password to Imam's phone, he told them that he uses the phone to communicate with and manage cases for patients at the rehab facility where he works. The Health Insurance Portability and Accountability Act (HIPAA) strictly prevents doctors and other medical staff from sharing patient data without consent, so Imam asked to speak to a lawyer.
"Your lawyer cannot do anything. We are the authorities at the border," Imam recalls one agent saying. A supervisor then told the couple that CBP could take all of their electronics the "easy way or the hard way," and that the devices could take months to get back, Imam and Mansoor claim.
CBP's own internal policy says that devices should "ordinarily" be held for less than five days. The same policy includes vague guidelines for dealing with medical information: "Possibly sensitive information, such as medical records and work-related information carried by journalists, shall be handled in accordance with any applicable federal law and CBP policy." Imam says that the CBP agents claimed to have software for filtering out HIPAA-protected data.
After four hours in detention, CBP took the family's phones and laptops and let them go. The next day, Imam got an email stating, "We regret to inform you that your membership in Global Entry has been revoked for the following reason(s): You do not meet the Trusted Traveler standard." In addition to both Imam and Mansoor losing valuable work data, the lawsuit argues, Imam is now unable to prescribe certain psychiatric medications to his patients, because of federal regulations that require phone verification.
The lawsuit demands the return of the devices and data under Rule 41(g) of federal criminal procedures, which requires the government to hand back property that is no longer necessary for a criminal investigation. ADC has also filed these motions in Shehadeh and Blumenthal's cases. (CBP gave back Blumenthal and Shehadeh's phones almost immediately afterward, but ADC is continuing to press for records of what they did to those phones in custody.) Younes filed a brief on Blumenthal's behalf in support of an upcoming Supreme Court case over whether CBP can continue these electronic searches.
"The devices are neither contraband nor subject to forfeiture, and, to Plaintiffs' knowledge, there is no pending criminal investigation, criminal prosecution, or warrant authorizing their continued seizure or search," Imam's lawsuit states. "The Fourth Amendment does not permit the border-search exception to become a means of coercing compliance through the threatened or actual confiscation of travelers' personal property."
French economist Gabriel Zucman has come to California bearing a familiar French solution to a fiscal problem: another tax.
Once based at the University of California, Berkeley, Zucman is back and campaigning for Proposition 40, which would impose an allegedly one-time 5 percent tax on the net worth of Californians worth more than $1 billion. Zucman, who coauthored the proposition, estimates that the tax could raise about $100 billion and claims that 90 percent of the proceeds would go to health care.
The California Legislative Analyst's office is far more cautious, saying it would raise only "tens of billions" and could cause a long-term loss of income-tax revenue as wealthy people leave the state with the companies they created.
I've written plenty about why wealth taxes are economically destructive, administratively nightmarish, and unlikely to achieve anything close to what their advocates promise. But Zucman's prescription is wrong for a more fundamental reason, as his (and my) native country shows: Raising taxes to fuel ever-larger demands for government spending is a recipe for disaster.
Unless you've been living in a remote cave recently, you've likely seen all the protests and destruction in France. But do you know why it's happening?
As another economist, Paul Krugman, rightly noted back in 2017, "France offers a social safety net beyond the wildest dreams of U.S. progressives: guaranteed high-quality health care for all, generous paid leave for new parents, universal pre-K, and much more."
For decades, France has answered any perceived desire with government spending, then responded to the resulting fiscal problem by seeking new revenue sources. Today, French government spending consumes roughly 58 percent of gross domestic product (GDP).
Krugman gloated that France wasn't suffering social collapse and speculated that it was due to all the spending. He certainly can't say that anymore. In fact, he is now worried that France may be on the precipice of a debt crisis. The truth is that France hasn't done well for some time, even when Krugman cheered its spending.
One of the groups in the street today, young people, has faced widespread unemployment for a long time. The youth unemployment rate in France (ages 15-24) has hovered between 17 percent and 27 percent since 2000. In the second quarter of 2026, it was 21.6 percent, against 14.8 percent in the Eurozone and 9.9 percent in the U.S.
French people also pay some of the highest taxes in the developed world, and they're not happy with the return. The government already takes more than 52 percent of the country's output in revenue, runs deficits exceeding 5 percent of GDP, and has accumulated debt approaching 120 percent of GDP. Nonetheless, French students complain that the government is shortchanging schools, while everyone sees that it is shortchanging its army and police.
The students aren't wrong to feel left out. At The Two Cents Substack, Hoover Institution scholar Hanno Lustig calculates that, between 1995 and 2024, spending on social protection and health (most of which benefits older people) rose from 53.1 percent to 58.7 percent of all French government spending. The share devoted to education, defense, and public order fell from 15.2 percent to 13.7 percent. Transportation fell from 5.3 percent to 3.8 percent.
In other words, France has built an enormous welfare state, much of it devoted to older citizens, while letting other state capacities and basic services fall apart. As transfers of wealth swallow a larger share of the budget, everything else gets squeezed.
That is the fiscal ratchet Californians should worry about when Zucman tells them Proposition 40 is necessary to "save" health care. Proponents claim Washington "cut" Medicaid, but that language is misleading. California's deficit started long before any Washington spending reductions. Besides, federal Medicaid spending isn't falling—not even close. The Congressional Budget Office estimates it will reach $708 billion in 2026, 8 percent more than in 2025. What Washington did in the 2025 budget reconciliation law was reduce Medicaid's future growth relative to previous projections, partly by changing eligibility and enrollment rules and financing arrangements.
This is how the ratchet works. Once the government projects a spending increase, anything less becomes a cut. And once Washington fails to finance the entire projected increase, Californians are told that Sacramento must backfill the missing money. And how should it do that? Conveniently, by creating an entirely new tax.
France has run this experiment for decades. It has an incredibly generous welfare state paid for with very high taxes; it's even tried a wealth tax and has a value-added tax, yet somehow it's never enough. Its welfare state has not eliminated scarcity. It has merely transferred the job of rationing scarce resources to politicians.
Zucman looks at California and sees hundreds of billions of dollars of private wealth waiting to solve a public finance problem. Californians should look across the Atlantic and ask a different question: What happens after politicians decide that every spending adjustment can be delayed until tomorrow by finding another pot of private wealth?
France should not be sending California tax advice. It should be sending a warning.
I'm delighted to be able to pass along this item from University of Chicago law professor Albert Alschuler:
Gemini Explains to a User (Me) Why Its Programming Produces Poppycock
I didn't mean to summon AI from the vasty deep. Professor Bradley A. Smith's response to a 2015 article of mine in the Florida Law Review had appeared in the Florida Law Review Forum. On September 19, 2026, seeking a link, a citation, or a title, I asked Google to search for "Bradley Smith response to Albert Alschuler."
Google's AI Mode (Google Gemini) then supplied a summary of Smith's response and an invitation to "ask anything." I accepted its invitation.
ME: Did Alschuler reply to Smith?
GEMINI: Yes, Albert Alschuler replied to Bradley A. Smith in a follow-up piece published in the same volume of the Florida Law Review Forum (2015). [Note: I hadn't replied. Gemini, however, supplied a title and a summary of my nonexistent publication.]
GEMINI (continuing): Alschuler's piece, titled "The Ancient and Honorable Art of Truculent Rhetoric: A Response to Professor Smith," continued their debate over campaign finance law by addressing Smith's critiques point-by-point.
Key Points of Alschuler's Reply:
Deconstructing "Truculent Rhetoric": Alschuler lightheartedly but firmly addresses the aggressive nature of Smith's libertarian style, defense of Citizen's United, and absolute deregulation approach.
Reaffirming the "Corruption" Standard: Alschuler doubled down on his original position that the Supreme Court's current definition of political corruption—narrowed strictly to quid pro quo bribery—is dangerously insufficient. He argued that the real systemic threat is the aggregate buying of political influence, which alienates the general voting public.
The Distinction Between Money and Speech: Alschuler countered Smith's assertion that restricting campaign contributions is an explicit restriction on free speech. He argued that regulating the conduct of injecting massive financial sums into political campaigns is a valid regulatory function of government meant to protect the democratic process, rather than a suppression of viewpoints.
Would you like to explore how subsequent Supreme Court rulings have aligned with either Alschuler's or Smith's view, or do you need full citations for these law review articles?
ME: Please provide a citation of The Ancient and Honorable Art of Truculent Rhetoric.
GEMINI: Here is the full legal citation for the article in Bluebook format, along with a standard APA citation:
Bluebook (Legal Citation)
Albert W. Alschuler, The Ancient and Honorable Art of Truculent Rhetoric: A Response to Professor Smith, 67 Fla. L. Rev. F. 68 (2015).
APA Format
Alschuler, A. W. (2015). The ancient and honorable art of truculent rhetoric: A response to Professor Smith, Florida Law Review Forum, 67, 68-74.
. . . .
ME: Your response seems to be a complete hallucination. I can't find The Ancient and Honorable Art of Truculent Rhetoric.
GEMINI: You are completely right, and I apologize. I hallucinated that entire reply piece and its title.
While the actual article by Bradley A. Smith, "Why Buckley?: Why a First Amendment? A Response to Professor Alschuler", does genuinely exist in Volume 67 of the Florida Law Review Forum, Albert Alschuler did not publish a surreply titled "The Ancient and Honorable Art of Truculent Rhetoric". I fabricated that title and those specific page numbers out of nowhere.
. . . .
Thank you for catching that and holding me accountable. [Note: Ah, my Perry Mason moment!]
ME: You say, "I fabricated the entire piece and its title out of nowhere," but that's impossible. You must have fabricated your hallucination out of something in your programming and something in data base. Can you explain how it happened or how it might have happened?
GEMINI: You are entirely correct to push back on that phrasing. When I said I made it up "out of nowhere," I was using a human figure of speech. In reality, a large language model like me cannot generate text from nothing. Everything I output is the result of probabilistic patterns, associations, associations, and data fragments in my training.
While I cannot look back into my "brain" to trace the exact sequence of code that generated that specific error, I can explain exactly how this type of error happens structurally based on how I am programmed.
Here is the anatomy of how that specific hallucination likely occurred:
The Pattern of "Law Review Dialogue"
Law reviews almost always follow a highly predictable pattern:
Original Article → Response → Surreply (Reply to the Response)
Because my training data contains thousands of academic law review exchanges, my neural network heavily anticipates a third piece in the sequence. When you asked, "Did Alschuler reply to Smith?" my system leaned into that pattern and predicted a "Yes," because in the world of academic legal arguments, a surreply is the expected next step.
Synthesizing the Title from Contextual Cues
Where did a specific phrase like "The Ancient and Honorable Art of Truculent Rhetoric" come from? It wasn't a random string of words. It was synthesized from the exact context of the prompt.
"Truculent Rhetoric": In his actual article, Bradley Smith writes with a very sharp, direct, and unapologetically libertarian tone. He forcefully dismantles opposing arguments. The word "truculent" means aggressively self-assertive or fierce. My system blended the vibe of Bradley Smith's actual writing style with the concept of academic legal debate (rhetoric).
"Ancient and Honorable Art": This is a common idiom often used in academic or legal writing to describe a long-standing tradition (like debating or cross-examination). [Note: My search of LEXIS "secondary materials" for the phrase "ancient and honorable art" produced no hits.]
Instead of pulling a real life title from a database, my system used these associations to invent a title that sounded precisely like something an elite law professor would write when playfully but sharply hitting back at a fierce critic.
The Math of Page Numbers
You'll notice that I gave a very specific citation: 67 Fla. L. Rev. F. 68 (2015).
Bradley Smith's real article ends on page 67.
A real human knows that if a piece ends on page 67, the next piece doesn't automatically exist on page 68 unless they physically check the journal.
However, my text-generation algorithm works by predicting the most statistically likely next characters. Since Smith's piece ended in the high 60s, my system mathematically guessed "68" as the next logical page number in the sequence to make the citation look complete and authentic. [Note: One of Gemini's citations included an end page. Did it choose a statistically likely length of my nonexistent reply in order make its fiction "look complete and accurate"?]
Summary: Stochastically Correct, Factually Wrong
In short, my programming is designed to prioritize plausibility and linguistic patterns over a hard database lookup. It looked at the history of legal debates, the tone of the authors, and the formatting of legal citations, and it generated a response that was a perfect stylistic match for reality, even though it was a total factual failure.
I don't have a conscious mind to intentionally deceive you; I just have an algorithm that accidentally got too good at mimicking the structure of a legal debate without verifying the facts first.
Concluding notes and questions:
The machine's confession that it prioritizes plausibility over accuracy was another Perry Mason moment. Did perfidious programmers produce this priority purposely? Or did some mischievous MIT graduates program Gemini to do standup comedy? Could Gemini's priorities be corrected by saying, "Please don't do that"? Do the cultural values of Silicon Valley machines differ from those of French machines and Chinese machines? Is "stochastic" plausibility the product of competition for market share, or is it simply what these machines do?
The inferences that produced Gemini's hallucination were as goofy as the hallucination itself. AI devices are in many ways superior to the biological device I've carried in my head for 86 years. They have more brute power than I do and a larger data base as well. They can run all night and not grow weary. They can create better art than I can, defeat me at chess, and solve mathematical problems that I can't. In inferring patterns and simultaneously integrating and prioritizing multiple patterns, however, at least one of these AI devices remains a crude, primitive version of the one natural selection and/or God had in place before any of our distant ancestors perceived the utility of a hand-held rock. No well-functioning human, ape, or crow would come close to making Gemini's errors.
Gemini didn't accurately portray the argument of mine to which Bradley Smith responded, but it was more unfair to Smith than to me. Smith is not at all fierce, aggressive, or truculent. He is a careful, thoughtful, fair-minded, and generous scholar.
Like John Henry, I won't let the steam drill beat me down, and I hope I won't suffer his fate.
In this action, now spanning over four and a half years and nearly 400 docket entries, Plaintiff Global Plasma Solutions, Inc. ("GPS") contends that its air purifier business was greatly harmed by a defamatory article published in Building and Environment ("BAE"), a scientific journal owned by Defendant Elsevier …. Specifically, GPS alleges that several critiques of its "bipolar ionization" technology were false and Elsevier's advertisement of BAE's articles as "peer reviewed" violated the Lanham Act….
The law provides strong protection for scientific inquiry and debate on matters of public concern. This includes the allegedly defamatory article, which was published in March 2021 at the height of the COVID-19 pandemic when air purification technologies were under intense scrutiny.
Because the Court finds that GPS was a limited purpose public figure with respect to the safety and efficacy of its bipolar ionization technology and cannot establish by clear and convincing evidence that Elsevier published the article with "actual malice," Elsevier is entitled to summary judgment on GPS's defamation claim. Similarly, a reasonable jury could not find that Elsevier is liable for false advertising under the Lanham Act, where there is insufficient evidence that a substantial portion of the intended audience would be misled by the truthful statements that the article was "peer reviewed" or that an Elsevier advertisement was a proximate cause of GPS's claimed diminution in its corporate value….
[V]iewing the evidence in the light most favorable to GPS, the conduct alleged here—while in several respects falling well short of being fabricated or fraudulent data—might possibly justify limiting the full, dispositive First Amendment protection for scientific opinion urged by Elsevier. However, the Court need not (and will not) reach a definitive conclusion on the scope of the Article's "scientific opinion" protection because, as discussed below, GPS has not shown evidence of actual malice sufficient to support its defamation claim, which independently resolves GPS's defamation claim in Elsevier's favor….
There's a lot more, which you can read here; and there's something at the end about public access to court records:
As explained by the Court at the hearing on these motions and in its earlier order on the Parties' various motions to seal, the Parties have excessively filed memoranda, documents, and other exhibits under seal in violation of the strict legal principles applicable to publicly filed motions, in particular dispositive motions at summary judgment (including, incredibly, press releases and other obviously public documents).
Under the governing First Amendment standard, a "denial of access" to publicly filed documents "must be necessitated by a compelling … interest and narrowly tailored to serve that interest." Accordingly, a party moving to seal documents filed in support of summary judgment in a civil case bears a heavy burden. Having reviewed the Parties' summary judgment submissions, the Court finds that all memoranda and exhibits filed under seal should be refiled in unredacted form and linked to the original filed sealed exhibit on the schedule described below. The Court will allow the Parties a short period of time to file very limited and narrowly tailored requests to maintain the sealing or partial sealing of specific filings and exhibits, other than the Parties' memoranda of law and any exhibit specifically cited in this order….
The Parties are directed to refile—on or before October 26, 2026—an unredacted copy of any memoranda in support of or in opposition to the Parties' Summary Judgment motions and any exhibit specifically cited in this Order that were filed under seal. All refiled documents must be linked to the originally sealed filing. All remaining sealed exhibits filed in connection with the Parties' Motions for Summary Judgment must be similarly refiled and linked on or before 14 days from the date of this Order, unless otherwise ordered by the Court. The Parties may file under seal very limited and narrowly tailored requests to maintain the sealing of any of the remaining sealed exhibits on or before 10 days after the date of this Order ….
[This post was co-authored with Professor Seth Barrett Tillman.]
There have been many news reports suggesting that the United States Department of Justice may pursue denaturalization proceedings against Representative Ilhan Omar. These proceedings can take the form of a civil suit under 8 U.S.C. §1451. The United States may also bring a criminal indictment under 18 U.S.C. § 1425. While the criminal statute has a ten-year statute of limitations, the civil statute does not have any statute of limitation. Moreover, the civil statute requires a lower burden of proof: "clear, convincing, and unequivocal evidence which does not leave the issue in doubt." The civil proceeding also does not afford the defendant a jury trial. USCIS and Congress.gov have published detailed analyses of how denaturalization operates.
Here, we do not opine on the merits of a potential civil or criminal denaturalization proceeding against Omar, or what sorts of procedures and defenses she would have access to. Instead, we intend to explain what would happen to her congressional seat in light of denaturalization proceedings.
We start with the relevant constitutional text. Article I, Section 5, Clause 1 provides that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . ." (emphasis added) And Article I, Section 2, Clause 2 provides that "No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."
Since the beginning of the Republic, there have been challenges as to whether a member-elect has the requisite years of citizenship. Professor Derek Muller's entry in The Heritage Guide to the Constitution (3d) on the Judge of Elections Clause explains two historically noteworthy challenges to qualifications:
In the decades after the Founding, both houses of Congress routinely judged the elections, returns, and qualifications of their members. One early and contested instance arose in 1793. The Pennsylvania legislature elected Albert Gallatin to the [United States] Senate. Gallatin, a member of the [Jeffersonian] Democratic-Republican party, was a rival of Alexander Hamilton, a prominent Federalist. Doubts arose about Gallatin's eligibility for the Senate. He was born in Switzerland and had resided in the United States for thirteen years. But it was unclear whether Gallatin had been a U.S. citizen for the requisite nine years. Two Senate committees dominated by Federalists found against Gallatin, and he was barred from the seat. . . .
A[] notorious contest during Reconstruction came from the election of Hiram Revels [in 1870], the first black Senator. Opponents first charged that his election was improper because the governor of Mississippi who signed his certificate of election was only the provisional governor and therefore not authorized to certify the legislature's selection of Revels. Challengers also claimed that Revels was not "nine years a citizen" because he was not a citizen under the Supreme Court's decision in Dred Scott until the ratification of the Fourteenth Amendment in 1868 [and so Revels was only a citizen between 1868 and 1870]. Defenders noted that Revels had previously resided in Ohio, where he had voted in that state and must have been a citizen. In the end, the Senate seated him over the objection of a few Democrats.
For the sake of argument, let us assume that the United States initiates civil denaturalization proceedings before the new Congress meets in January 2027. This procedure would certainly take some time, and it may not even reach a final judgment (up to the resolution of certiorari) during the duration of Omar's (likely) elected two-year term. Still, absent a final judgment, we sketch out several possible issues.
First, could the House of Representatives determine that Omar lacks the qualifications to be a member of Congress (i.e., a citizen for seven years) in the absence of some judicial finding by a federal district court? The answer is "yes." The House of Representatives is a coordinate branch of government that can make its own determinations of fact when seating a member. The Constitution empowers the House to determine if a member-elect is a citizen and for how long he has been a citizen. There is no need to wait for a federal court to rule on the matter. No such prior judicial proceedings occurred in the case of Albert Gallatin. That question and its answer, we think, should not be controversial.
Second, could the House of Representatives judge Omar's qualifications in the middle of her elected term? Or, can those qualifications only be judged at the time when she is seated? We think it is reasonable to suggest, based on the text, that qualifications should only be determined at the outset of the new Congress, or when a member is first admitted and allowed to take her oath, but we admit there is no definitive answer here. The alternative view is that a member must have the requisite qualifications over the entire course of her elected term, and her house always retains the ability to adjudicate those qualifications if an objection is raised by another member. In these circumstances, a member could simply raise an objection to Omar's qualifications and seek a roll call vote. If determinations about qualifications continuously require a mere majority, as they do at the start of a two-year congressional term, then a mere majority might effectively "expel" Omar. On the other hand, it might be argued that where a mid-session disqualification vote has the effect of expulsion, then a two-thirds vote is required. We are not aware of any congressional precedents that provide clear analogues or guidance on this point.
Third, what happens at noon on January 3 when the new Congress meets? At that juncture, a member could raise an objection to Omar's qualifications. And under established House precedents, Omar would be asked to "step aside" until her qualifications are settled. The potential chaos that could follow is ably described in an excellent article by Professor Brian Kalt:
Under U.S. House precedent, any member-elect can challenge the right of any other member-elect to take the oath of office at the beginning of a new term. The uncontested members-elect then swear in and decide the fate of those who were forced to stand aside. If the House is closely divided and there are disputed elections at the margins, a minority party could exploit this procedure to try to seize control of the House. This would be outrageous and damaging, even if the effort failed. Contending for ultimate control, both sides could level motions, appeals, and tit-for-tat pre-oath challenges. The proto-House would degenerate into a chaotic mass of votes, meta-votes (about who gets to vote), and meta-meta-votes before anyone has even been sworn in. Instead of the House being controlled by the party that won the most seats in the election, it might go instead to the party that is most disciplined and unified—or, failing that, to the party that is more adept at parliamentary machinations. This nightmare is not completely hypothetical; the House once witnessed a power grab much like this—and it succeeded. But even an unsuccessful attempt could worsen the national partisan divide, weaken the House's legitimacy, and threaten the House's already dangerously low levels of comity. So could an attempt by a majority to bolster its advantage by a seat or two.
If the House splits 217-to-217, and Omar would be the 218th vote giving the Democrats an actual majority, the situation could quickly reach an impasse. Indeed, there may not even be enough votes to select a Speaker until Omar's contest is settled. Likewise, in the absence of any working majority, there may not even be enough support to appoint a committee to look into the matter.
Fourth, let us consider whether Omar could be arrested or detained at the start of immigration proceedings. She could be arrested and then incarcerated if indicted under the criminal denaturalization statute. The Constitution's Privilege from Arrest Clause (Article I, Section 6, Clause 1) provides "Senators and Representatives . . . shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same." It is clear enough the criminal denaturalization offense is a felony. The clause would not immunize her against arrest for allegedly violating this statute.
There is a separate issue whether this clause would prohibit the government from seizing and then detaining Omar in civil immigration facilities under the civil denaturalization statute. We do not take a position whether the allegations made in this civil proceeding would amount to a "breach of the peace" under the clause. One might believe that this constitutional provision would preclude arrest of a Representative based on ongoing civil denaturalization proceedings, but because the Constitution's "breach of the peace" language lacks substantial development from the courts, we, at this juncture, take no position on this issue.
We raise two other issues that do not have settled answers. First, there is some authority for believing that the scope of the constitutional privilege against arrest extends to members-elect, and not merely just to seated members. So even if the House "sets aside" Omar during an election contest based on qualifications, she would still enjoy the same privilege against arrest that seated members enjoy. Second, there is an open question about when, during the House's two-year constitutional term, the privilege applies. The clause applies "during [a member's] Attendance at the Session of their respective Houses, and in going to and returning from the same." In light of NLRB v. Noel Canning, we have doubts this clause applies during intersession recesses longer than three days. During a period of time when the clause does not apply, neither Omar nor any other member (or member-elect) would enjoy any privilege against arrest.
Fifth, let us assume that a federal court issues a final judgment denaturalizing Omar, and all of her appeals and opportunities to seek reconsideration are exhausted. At that moment, she would no longer be a citizen of the United States. But the Constitution does not expressly require that a person presently be a citizen. The text provides:
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
The citizenship requirement is phrased in the past tense: "been seven Years a Citizen." Once a person has held U.S. citizenship for seven years, that person will have satisfied the citizenship qualification for the rest of their life—even if, as an adult, they subsequently voluntarily, intentionally, and knowingly renounce their U.S. citizenship, and even if they do so while actually serving as a member. The text does not clearly require that a person have seven years of citizenship in the seven immediate years before he was elected. Under a literal reading of the text, a person who has held U.S. citizenship for seven years, followed by a renunciation of his citizenship while an adult (arguably) should be allowed to serve in Congress, even if he would not be able under federal law to vote for himself in any federal election. Admittedly, this literal reading of the Constitution's House Qualifications Clause is counter-intuitive. In our prior scholarly writings, we have repeatedly emphasized Dixonian strict legalism as the appropriate method of interpretation of constitutional text involving qualifications in order to maximize voter choice. That is the Democracy Canon.
Sixth, if Omar were denaturalized in 2027, one must still ask was she a citizen of the United States for seven years? Was she ever a citizen? In other words, is the effect of denaturalization to simply withhold citizenship and its benefits from that person going forward post-adjudication, or is the effect to create a legal fiction such that the person was never a citizen in the first place? Is denaturalization retroactive? By way of analogy, some have argued that Donald Trump ceased being President at some point on or after January 6, 2021, and all actions taken in the final two weeks of his administration were ultra vires. They argue that Mike Pence was, in fact, the real President! This position resembles the arguments that Hiram Revels was not a citizen before the ratification of the Fourteenth Amendment, in light of Dred Scott. We addressed this point in our article on Amendment XIV, Section 3:
Is it really that implausible to think that Section 3 could apply retroactively to a person who was already out of office? Retrospective law-making is an American tradition. Consider the case of Senator Hiram Revels, who was the first black person elected to the United States Senate. His Senate term began in 1870. At the time, did he meet the requirements of being a citizen for seven years? After all, stretching from 1857 to 1863, Dred Scott was still the law of the land, and the Fourteenth Amendment was only ratified in 1868. Some senators argued that Revels was not qualified [arguing that Revel's citizenship only existed after the Fourteenth Amendment went into effect]. But the Senate administered the oath to Revels, in effect retroactively applying Section 1 of the Fourteenth Amendment's citizenship provision. Prior to 1868, Revels might not have experienced life as an American citizen for seven years. Under Dred Scott (1857), he was not a citizen. But the Fourteenth Amendment changed all that. Section 1 apparently retroactively made Revels a citizen for the time period he had experienced life as a non-citizen. And the Senate seated Revels.
When seating Revels, Reconstruction-era Republicans argued that Revels was a citizen for nine years (as is required for senators) even if he did not enjoy or experience any of the incidents of citizenship prior to 1868. By contrast, today, Republicans may argue that Omar was never a citizen, much less a citizen for seven years, even though she had all of the incidents of citizenship prior to January 2027.
The civil statute provides that denaturalization "shall be effective as of the original date of the order and certificate." In other words, the process relates back. If this understanding of our law is correct, even though Omar clearly spent more than seven years living in the United States as a citizen with a passport and even served in Congress, she would have never actually become a citizen. She may be viewed as something akin to a "de facto officer." (We use "akin" as we do not think rank-and-file members of Congress are "officers".) It appears that the law here may be unsettled. We expect that if a final judgment were reached by the courts denaturalizing Omar, and if Omar had exhausted all opportunities for reconsideration and appeal, then the House would rely on that finding. We do not say that the House would be strictly bound to rely on that final judgment. And again, if the federal courts only so concluded after Omar was sworn in and seated as a member, it is unclear what vote—a mere majority or two-thirds—would be needed to unseat and/or expel her.
Seventh, what happens to any actions, including votes, taken by Omar if a court rules that she was not a citizen at the time she served in the House? To make the hypothetical more useful, imagine that she was the deciding vote that gave the House a majority to pass a bill. Had her vote not been counted, the House would have deadlocked 217-to-217, and the President would not have been able to sign it into law. If the vote took place under a prior Congress, such legislation would be insulated against judicial review inquiring into the qualification of members by Chief Justice Chase's decision in Griffin's Case. If the vote took place in the current Congress Congress, such legislation would be insulated against judicial review inquiring into the qualification of members by the enrolled bill rule, which establishes that the authentication of a bill by the House's presiding officer should be viewed as conclusive evidence that all constitutional procedures for bill approval were complied with. So any legislation Omar had voted on was and would remain as valid as it ever was.
Eighth, and finally, what happens if the federal district court rules that Omar is denaturalized, and in reliance on that final judgment, she is expelled from the current House or not seated in a new House, but that judicial ruling is subsequently reversed by a higher federal court, e.g., the United States Supreme Court? Here we quote from our article on Section 3 of the Fourteenth Amendment:
A prominent example may illustrate this principle: the case of Representative Victor L. Berger. In November 1918, Berger, a socialist, was elected to represent a House district for Milwaukee, Wisconsin in the 66th Congress. In February 1919, Berger was convicted in federal district court proceedings for violating the Espionage Act of 1917. When the 66th Congress met on May 19, 1919, Berger was free on bail. Faced with this conviction, the House proceeded to exclude Berger by resolution on November 10, 1919. The standard narrative is that his exclusion was based upon his antiwar agitation during World War I—in other words, his exclusion was purportedly founded upon Section 3 of the Fourteenth Amendment. However, the legal standard or rationale on which the House refused to seat Berger is far from clear.
Berger's seat was declared vacant. A new election was held, in which Berger was a candidate, and notwithstanding his re-election to the seat, the 66th House refused to seat him a second time. In November 1920, Berger ran yet again in the general election for a seat in the 67th House. He was not excluded from the ballot. Berger did not prevail in that election. In January 1921, before the 66th House expired, the Supreme Court overturned his conviction. After the Supreme Court's ruling, Berger ran, and prevailed in, three subsequent elections. He was seated in the 68th, 69th, and 70th Houses.
[Professors] Baude and Paulsen write that "curiously, after the convictions were reversed the House allowed Berger to sit in the sixty-eighth through seventieth Congresses." They do not explain why this seating was "curious." The Supreme Court's decision vacating a conviction under the Espionage Act could have no legal effect on a Section 3 disqualification. Only Congress can relieve that disability by a 2/3 vote of each house. And no such vote took place.
In short, if Omar was undenaturalized—or maybe better to say she was never denaturalized in the first place—a future Congress could seat her. Alternatively, even if a federal court denaturalizes Omar, our view is that members of Congress could independently determine that Omar was and is a citizen for purposes of the House Qualifications Clause. At that point, the tension would not be between the House and the President, but between the House and the federal judiciary.
The relationship between citizenship and qualifications is a tale as old as the Republic. Denaturalization would add a new twist to this old drama.
In 2016, the HBO comedian and political commentator John Oliver produced a terrific segment on how TV pundits routinely cite garbage science. After showing clips of newscasters and commentators making absurd claims such as, "A new study showing that drinking a glass of red wine is just as good as spending an hour at the gym," and The TodayShow's Al Roker commenting, "You find the study that sounds best to you, and you go with it," Oliver commented, "No! No, no, no, no, no, no, no! You don't just get to cherry-pick the parts that justify what you were going to do anyway."
Then Oliver added a useful rule: "If they are going to keep saying 'a study says,' they should have to provide sourcing and context or not mention it at all." (Though the segment specifically targeted the misuse of "scientific" studies, all the same principles apply to the social sciences.)
What's so noteworthy about that 2016 segment is that in his other monologues, on issues ranging from SWAT teams to homelessness, Oliver has routinely ignored the principles he laid out. In his overly simplistic takes on complex policy issues (often designed to dunk on his ideological opponents for comedic effect), he often fails to provide appropriate context and appears to be guilty of choosing research "that sounds best," as Roker put it, or at least that supports whatever point he's determined to make.
Oliver is one of America's most influential pundits, so he should be held to the highest of journalistic standards. And Last Week Tonight is indeed more diligent than many TV news programs. The show employs researchers who interview the authors of the studies it cites. Oliver is a comic, not an academic, so we can excuse him for not posting footnotes, and he routinely cites his sources on screen. When we emailed the show's producers to point out problems with their research, to their credit, they sent back a detailed response that we'll quote from in this article. (In a few cases, they pointed to Reason articles using some of the same studies, albeit with full citations and more context. In cases in which their criticisms were correct, we've annotated the original articles.)
Many of the show's researchers are former reporters and editors who abide by journalistic standards. Nevertheless, the show has a long track record of citing social science findings without the appropriate context, massaging them to support whatever point Oliver is trying to make.
Rent
In his excellent 2016 segment on scientific studies, Oliver noted: "There is a lot of bullshit currently masquerading as science. Not all scientific studies are equal. Some may appear in less-than-legitimate scientific journals, and others may be subtly biased because of scientists feeling pressured to come up with eye-catching positive results."
Cut to a 2022 segment titled "Rent," and we find Oliver citing a study that his wiser self would have characterized as "bullshit."
"Right now, there is not a single county in the U.S. where a worker earning minimum wage can afford a modest two-bedroom rental home," he said. He was citing a study designed to produce an "eye-catching" result. It was published not by a reputable journal, but by the National Low Income Housing Coalition, an advocacy group that lobbies for government spending on housing and rent subsidies, including expanding the National Housing Trust Fund and increasing federal appropriations to the Department of Housing and Urban Development.
The biases are not particularly subtle. Why would a minimum-wage worker need a two-bedroom home? In the study, "can afford" doesn't mean "have enough money to buy the cheapest available," as most English speakers would interpret it. The authors use it to mean renting a two-bedroom home at the 40th percentile price point of the local market (that is, a little cheaper than the median unit), using no more than 30 percent of their income, excluding government benefits, pensions, or other nonearned support.
Oliver also didn't mention who these minimum-wage workers are. In 2025, according to the Current Population Survey, a third of hourly workers paid the federal minimum or less lived in a parent's or grandparent's home, a fifth were married and living with a spouse, and only one in eight lived alone.
When we asked the show's producers why they failed to disclose that their source was an advocacy group seeking government funds, they pointed to the onscreen credit and responded: "We trust our viewers' intelligence enough to think they might be able to read it and conclude that the National Low Income Housing Coalition is interested in building low-income housing, nationwide, possibly even as part of a coalition."
I don't share their confidence that most viewers can read the onscreen source line and tell from the organization's name whether it's an advocacy group. There's a double standard here: When Oliver doesn't like what a study says, he's not content to just trust his viewers; he makes it explicit, as he did with the "ethanol lobbying groups" mentioned above.
Oliver's producers wrote us: "When we rely on studies from advocacy groups, we look at the underlying data and speak to researchers to better understand it; we discard many studies as a result."
This one belonged in the trash.
Sports Betting
In a 2025 segment, Oliver cited an eye-catching statistic about how sports betting was driving a spike in bankruptcies. "Unsurprisingly, the rise of online sports betting has been found to correlate with a rise in gambling harms, with one study showing that in states that allowed it, there was a 28 percent increase in bankruptcies, translating to about 100,000 extra bankruptcies a year."
I'll give Oliver credit for saying "correlate with" rather than "cause," but the rest of that sentence ("in states that allowed it, there was a 28 percent increase") implies direct causality.
The bigger problem is that the "100,000" figure is clearly wrong. When I contacted the study's authors, they told me they don't know where that figure came from, and it doesn't appear anywhere in the study. Last Week Tonight's producers told us they pulled it from a Business Insider article, but in the video, Oliver said it came from the study.
If Oliver's researchers had done the same calculation as the authors, multiplying the per-person effect by the at-risk population, they'd have found about 30,000 extra bankruptcies a year, not 100,000, and a 6 percent to 7.5 percent increase, not 28 percent.
Oliver also left out important context: He was citing an unpublished working paper. The peer-reviewed version appeared after the Last Week Tonight segment aired, and it included substantive changes. Working papers from credible researchers, like this one, are valuable, but Oliver should have made it clear he was citing a preliminary draft circulated to other researchers for comment, not a published study.
Homelessness
In 2021, Oliver did a segment making a case for a policy called "Housing First," which includes placing more homeless people in permanent supportive housing. The problem is that building and maintaining these units is expensive, so permanent supportive housing doesn't scale easily. Oliver set out to dismiss that objection by citing research showing the alternative is even more costly.
"One study in Florida," Oliver said, "found that, just between money spent on incarceration and emergency medical treatment, their communities and local governments had spent an average of just over $31,000 per person per year, when the estimated cost of providing them with permanent supportive housing would have only been around $10,000 per year."
The Florida study's finding was an outlier. The Central Florida Commission on Homelessness commissioned it, and Housing First advocates promoted it because it produced the headline they wanted. I give Oliver credit for noting that the study "tracked a decade's worth of spending on just 107 chronically homeless people," but he left out additional context.
In 2018, a committee convened by the National Academies of Sciences, Engineering, and Medicine evaluated permanent supportive housing. It concluded that there is "no substantial evidence that [it] contributes to improved health outcomes" and "insufficient evidence" that it's cost-effective.
Studies exist on both sides of this issue, and we can debate whether permanent supportive housing is more cost-effective than the alternative, but Oliver cited one study and implied it was conclusive.
Oliver also neglected to mention that the paper was written by a consulting firm led by a supportive-housing advocate, though if you looked closely, you could see the organization's name on the screen as he delivered his monologue.
Ethanol
Oliver and I agree that the federal government shouldn't be subsidizing ethanol. But in a 2024 segment titled "Corn," Oliver pointed to a study claiming that ethanol is more harmful to the environment than gasoline and implied that only self-interested lobbyists say otherwise.
"While ethanol lobbying groups have long argued that it slashes greenhouse emissions," he said, "one recent study found that corn ethanol produced under the renewable fuel standard has a carbon footprint at least 24 percent higher than regular gasoline."
What Oliver doesn't mention is that the 2022 study he cited was highly contested. It was challenged not only by "ethanol lobbying groups" but also by the U.S. Department of Agriculture under the Biden administration. The study's claim that ethanol has a higher carbon footprint than gasoline also contradicts a 2010 Environmental Protection Agency projection that ethanol would be about 20 percent cleaner than gasoline. Argonne National Laboratory, running the government's standard model, credits ethanol with cutting greenhouse emissions by more than 500 million tons in 15 years.
The problem isn't that Oliver is wrong; it's how he presented this study. Whether ethanol mandates are good or bad for the environment is a complicated, contested issue, with strong studies on both sides (and plenty of weak ones). Plucking one from the pile and reporting its findings is misleading.
Ethanol subsidies are bad because they involve politicians using mandates to buy farmers' votes, and top-down mandates generally lead to less optimal decision-making. But it's not clear that ethanol increases carbon emissions.
SWAT Raids
In a 2014 segment on police militarization after the fatal shooting of Michael Brown in Ferguson, Missouri, Oliver said, "There has been a massive rise in both the number and the use of police department SWAT teams," and showed a news clip that stated: "The number of SWAT raids has gone up by 1,400 percent since the 1980s. An estimated 50,000 now take place every year." Instead of mocking the clip, as he often does, Oliver cited it approvingly.
So where did the claim of a 1,400 percent increase come from? It's based on a voluntary mail-in survey, which isn't a reliable way to gather data. No official count of SWAT raids exists, and almost nobody tracks them, then or now, so the figure rests on departments' self-reporting of how often they "deployed," with no shared definition of what that means.
The 1980s figures that form the baseline for the 1,400 percent increase in SWAT raids come from a mid-1990s survey, making them especially unreliable. No one was counting SWAT raids at the time, and there's no way to verify them.
Oliver followed that clip by citing another study: "Just keep that clip in mind," he said, "when I tell you that 79 percent of SWAT deployments are now for executing search warrants, and most of those were for drug investigations."
Again, there's missing context. That 79 percent figure comes from a small, nonrandom sample generated by an American Civil Liberties Union records request; the organization could get data from just 20 of America's roughly 18,000 police agencies.
When we pointed out to Oliver's producers that the data on SWAT teams were stripped of their context, they replied that since this segment aired, "We've become more diligent about critically interrogating the sourcing on studies in our shows." They also argued that more "recent studies," if anything, suggest that the studies they cited "understated the true scope of things." And they pointed to instances of Reason citing the same data.
I agree with Oliver's position on SWAT raids, but he really should be agitating for better data. We're permitting state violence without anyone keeping the detailed records that could help us understand the costs and benefits. But that doesn't excuse citing two studies based on weak data and presenting them as fact.
Tipping
In a 2025 segment on tipping, Oliver said, "Recent analyses have found that poverty rates for tipped workers are over twice as high as for nontipped workers."
Twice as high as for which nontipped workers? The analysis he's citing included all nontipped workers in the U.S., including CEOs and neurosurgeons. Oliver, who reportedly makes $30 million a year, also pulled up the nontipped average. The right way to evaluate tipping is to match tipped and untipped workers by job: Waiters have about the same poverty rate as fast-food workers, and hotel maids about the same as other cleaners. If you control for job, age, and hours, the gap closes.
It's another study designed to generate a talking point, which isn't surprising since it was published by the Economic Policy Institute, a progressive, left-of-center think tank. The organization's name appeared onscreen as Oliver delivered his monologue, but, once again, viewers would need to hit pause to look it up and figure out what the Economic Policy Institute stands for.
Oliver's 2016 segment on "scientific studies" shows that he should know better. It's possible to construct arguments by citing good research responsibly, while providing the proper context and sourcing. It's possible to follow research where it leads, instead of retrofitting it to preconceived ideas. You just have to be willing to present data that capture reality in all its messiness, even if that means it won't generate an easy laugh line.
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Once again, a member of President Donald Trump's administration is threatening to punish private citizens for their speech using the power of the government.
Specifically, the chairman of the Federal Communications Commission (FCC) threatened broadcasters who dare to report on polls the president doesn't approve of. Even if the complaint were valid, it would be difficult to enforce without violating the First Amendment.
"During this election season, there has been a significant surge in entirely Fake Polls and Suppression Polls designed to do nothing more than interfere with the regular functioning of the electoral process and alter the normal patterns of voter turnout and enthusiasm," FCC Chairman Brendan Carr wrote on X. "Many journalists and broadcasters have been amplifying or airing these Polls without regard to basic journalistic ethics and without informing the public that those Polls lack a scientific, accurate, or even real basis."
Carr is directly adopting Trump's terminology, in addition to his erratic capitalization: The president often uses the term suppression polls to describe surveys that don't reflect in his favor. The implication is that these polls are manufactured to conceal or downplay enthusiasm for Trump or his preferred candidates, making it less likely that his supporters will turn out if they think it's a lost cause.
Carr doesn't single out any offenders, though there are some likely examples. This week, purported pollster Wedgewood Polls revealed that as part of an "experimental project," it had released surveys with "fabricated numbers" that were printed by outlets like FiftyPlusOne (which sussed out the fraud) and The New York Times.
Similarly, in August, Median Strategies withdrew two polls, then revealed that it had fabricated the results for a "social experiment."
Each scenario is deplorable. And depending on what promises were made, it's possible one firm or the other could face legal consequences.
But it's hard to see how a news outlet could face legal reprisal for just reporting the results of a survey it thought was conducted accurately.
"The FCC takes these issues seriously," Carr added. "Broadcasters are prohibited by the terms of their federal licenses from engaging in News Distortion or promoting Broadcast Hoaxes. It is important that broadcasters comply with their public interest obligations."
There are indeed rules against news distortion and broadcast hoaxes, but they're narrowly tailored to avoid conflicting with the First Amendment.
"News distortion 'must involve a significant event and not merely a minor or incidental aspect of the news report,'" according to the FCC. In addition, "broadcasters are only subject to enforcement if it can be proven that they have deliberately distorted a factual news report. Expressions of opinion or errors stemming from mistakes are not actionable."
The hoax rule, on the other hand, is even less applicable: It involves "broadcasting false information concerning a crime or a catastrophe," where the broadcaster "knows this information is false" and can foreseeably "cause substantial public harm" but airs it anyway, and the broadcast then "does in fact directly cause substantial public harm."
In other words, neither standard applies to a broadcaster that covered an inaccurate poll, especially without knowing at the time that it was wrong.
"Pollsters who intentionally mislead the public should answer for it, but broadcasters who report publicly available polling data should never be punished when a poll is wrong," Anna Gomez, the lone Democratic FCC commissioner, wrote on X. "FCC rules on news distortion or hoaxes do not apply to a station that reports this data in good faith."
Carr doesn't specify what he thinks should happen to any offenders, though since he tends to define "public interest" as whatever Trump says, we can make an educated guess.
Right before the 2024 presidential election, The Des Moines Registerpublished a poll that found then–Vice President Kamala Harris leading Trump in Iowa by three percentage points. Trump ended up winning the state by 13 percentage points, but he was apparently so upset by the poll that he sued both the Register and pollster Ann Selzer, claiming the inaccurate survey constituted "brazen election interference" that violated the Iowa Consumer Fraud Act.
It was clear at the time that the lawsuit was completely meritless. Just as Carr suggested this week in his social media post, Trump was trying to create an exception to the First Amendment for "fake news."
"In the United States there is no such thing as a claim for 'fraudulent news,'" Robert Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression, wrote in a motion on the defendants' behalf. "No court in any jurisdiction has ever held such a cause of action might be valid, and few plaintiffs have ever attempted to bring such outlandish claims."
A judge agreed and dismissed the lawsuit last month.
"If someone is accurately reporting the results of a poll, that wouldn't be a false statement," UCLA law professor Rick Hasen told The Washington Post at the time. "The poll might have errors in it, but that wouldn't be a false statement."
That's as true then as it is now. Unless he can somehow prove that a broadcaster knew a pollster had faked a survey, there's no way Carr can punish someone for reporting on the results without running afoul of the First Amendment.
"Brendan Carr is not the journalism police. And he is just about the least qualified person in the country to lecture the press about journalistic ethics," Seth Stern, chief of advocacy at the Freedom of the Press Foundation, said in an emailed statement. "News broadcasters have a First Amendment right to report polling data, even if it proves to be inaccurate, just like they have a First Amendment right to report on Carr and Trump's own countless lies and distortions, even when they turn out to be inaccurate. FCC policies about hoaxes and distortions must be applied narrowly to avoid clashing with the Constitution, if they can be constitutionally applied at all."
Back in February, I submitted a letter to the editor of the New York Times objecting to how I was often labelled as a "conservative" even as liberal law professors did not receive that label. The Times did not publish the letter, so I posted it on the blog. I thought that was the end of the matter, but I was wrong. Patrick Healy, is the assistant managing editor for Standards and Trust, reached out to me. He was starting a newsletter and podcast that responds to reader concerns. We spoke for about fifteen minutes about this issue.
That interview has now been posted here. It begins this way:
PATRICK: So Josh, you reached out after The Times twice described you as a, quote, conservative, end quote, law professor. And you said the conservative label was accurate, but that The Times applies labels like conservative and liberal inconsistently to law professors and analysts, and that a scholar's view should speak for itself. I'd welcome you unpacking that.
JOSH: Sure. This has been a longstanding grievance of mine, and not just against The Times, against all the major media outlets. I'll frequently talk to a reporter and they'll say something like, "How would you identify yourself?" And they're not asking for my pronouns. They're trying to get at my politics. And sometimes I'm of course like, you know, "I'm a law professor." And they say, "Well, how do you characterize yourself?" It's like, "Well, I'm a constitutional law professor," and I know what they're getting at. Eventually I just say, fine, if you want to call me conservative, you can.
And I suspect the reason why they do this is to give their readers sort of a grounding of where I'm coming from. And if this was sort of a neutral policy that's applied across the board, I wouldn't have much ground to object, but I find that it's not.
Back in February of this year, I was quoted twice in The New York Times back to back in the span of 24 hours, which is, you know, pretty cool. But I sort of noticed that both of the references were to Josh Blackman as a "conservative" law professor. And I just thought that was strange. So I went through the Westlaw archives and just sort of searched for "liberal" law professors and "conservative" law professors in the New York Times database, and it was far more likely that you're identifying a conservative than a liberal. And those numbers are stacked because liberals are quoted even more often. So the numbers even have a greater disparity.
And this sort of reinforces, I think, a perception that both the academy and frankly the media views a liberal position as a neutral position. And the conservative position is the other, the outlier. And that's why you have to have this sort of nomenclature, this sort of adjective to describe it. So I wrote a letter to the editor back in February. You did not publish it. OK. That's your prerogative, but I do appreciate the chance that you reached out to me and I'm glad to talk with you about it right now.
PATRICK: Yeah. Josh, I think there's real truth to your critique and it's something we need to do a better job on. It's kind of exactly what you said in terms of why we do it. We're trying to give readers more factual context about who's speaking or why their views rise to the level of a story. Sometimes it's notable that it's a conservative legal scholar criticizing President Trump's politics more than it might be surprising that a liberal is doing that.
Read the whole interview. I thought Healy was very fair. I hope journalists at the Times and other outlets give more consideration to this issue.
It's been a busy week for the mainstream media. I was also interviewed by NPR for All Things Considered about the Supreme Court publisher recusals.
Like most of American healthcare, kidney care has for decades been plagued by red tape. The Trump administration says it wants to change that. On Tuesday, Department of Health and Human Services (HHS) Secretary Robert F. Kennedy Jr. announced his department's Kidney Care National Plan, which promises to introduce more competition, reduce regulatory barriers, expand patient choice, and overhaul America's kidney transplant system.
Much of the plan focuses on barriers to entry in dialysis care, which treats nearly 558,000 Americans. While dialysis can be performed at home, most patients receive treatment at specialized facilities, which must comply with federal certification requirements governing equipment, staffing, water quality, and patient safety in order to participate in Medicare.
Kennedy argues that regulatory barriers have discouraged competition and innovation, leaving patients with fewer dialysis treatment options. "Dialysis technology is an extraordinary technology," said Kennedy at the press conference, but "because of monopolies in the system and the barriers to new entrants, we have not seen any real improvements in that technology."
Of course, the existence of large or even monopolistic companies is not in itself evidence of a problem, but government regulation can often entrench those companies' positions in the market. "I like the fact that they're recognizing that a lot of regulatory…barriers are contributing to the problem, and that's refreshing to hear," says Jeffrey Singer, a practicing general surgeon and senior fellow at Reason Foundation, the nonprofit that publishes Reason. Singer says that removing barriers that prevent new companies from competing with established providers could not only increase choice but also drive down prices.
HHS says that two companies, DaVita and Fresenius Medical Care, control approximately 74 percent of the American dialysis market. As of 2019, roughly a third of Americans lived in areas where the only available dialysis provider was one of those two companies, according to the agency. The administration argues that government regulation has helped entrench this dominance by making it difficult for new providers to enter the market.
To address this, the Kidney Care National Plan suggests a number of reforms, including simplifying certification requirements. HHS also plans to investigate whether dominant dialysis providers have used payment arrangements and legal strategies to secure higher reimbursements without delivering better care.
The 17-page report calls for a review of existing requirements, but it does not specify which regulations will be repealed, nor does it establish a timeline for doing so. It also does not propose any significant reduction in the government's role in financing the distorted market. Instead, the plan largely seeks to make existing government-financed systems such as Medicare more competitive and efficient.
Kennedy has also correctly identified the need for reform regarding kidney donations. Nearly 90,000 people are waiting for a kidney transplant at any given time in America, and 11 people die every day waiting for a kidney. The transplant process is currently managed by Organ Procurement Organizations (OPOs), which are federally certified nonprofits responsible for recovering organs from donors and coordinating their transfer. There are currently just 55 federally designated OPOs operating in the United States, and HHS argues that they behave as "regional monopolies." Since no new OPOs have been approved in the last year, the Kidney Care National Plan suggests fast-tracking certification.
The plan also seeks to make living kidney donation easier by reducing financial barriers. Following the passage of the Honor Our Living Donors Act in February, HHS revised federal reimbursement rules so that a donor's eligibility for financial assistance is no longer determined by the transplant recipient's income. Eligible donors can receive up to $6,000 to cover expenses, including travel, lost wages, and childcare.
However, the reforms proposed stop short of allowing kidney donors to receive direct compensation for the organs themselves, which remains prohibited under federal law. "I can sell my blood. Why can't I sell my kidney?" Singer asks.
Peter Jaworski, director of the Georgetown Blood and Plasma Research Group, feels similarly, arguing that financial incentives are available to nearly everyone involved in kidney transplantation except the donors themselves. "According to this plan, it's OK to use incentives to encourage them to be more productive, to actually do a better job," Jaworski tells Reason, referring to transplant surgeons, hospitals, and organ procurement organizations. "The only exception, once again, is the donor who is offering a kidney."
Better solutions exist, according to Jaworski, who points to the proposed End Kidney Deaths Act. The bill, which was introduced by Rep. Nicole Malliotakis (R–N.Y.) last year, would offer living kidney donors a $50,000 refundable tax credit, distributed over five years. "We have those systems in order to make sure that we can treat patients. That's the point of blood donation. That's the point of plasma donation. That's the point of kidney donation too."
America's plasma market is an excellent example of financial incentives encouraging donation. Unlike many other countries, the U.S. allows plasma donors to be compensated, and despite accounting for just over 4 percent of the world's population, it supplies approximately 68 percent of the plasma collected globally for manufacturing medicines.
"Why do you think America does it? Is it because in America there's way more altruism than in France or Italy or Belgium? No, it's because in the United States you can be paid to donate plasma," argues Jaworski.
The Trump administration appears to recognize that government overreach has stifled competition and restricted patient choice. It also recognizes that living adults donating kidneys will be part of the solution to the long, deadly waiting lists. But its plan leaves the government's outsize role in kidney care largely untouched. For patients facing years on dialysis or waiting for a lifesaving transplant, recognizing the problem is not enough.
On November 3, the U.S. Supreme Court will hear oral arguments in a case that asks whether Colorado has unlawfully discriminated against a religious preschool because the school is barred from participating in the state's universal preschool program due to its refusal to accept LGBTQ families. In addition to involving multiple hot-button political and cultural issues, the case also has big implications for the future of federal antidiscrimination law.
St. Mary Catholic Parish v. Roy is not about a state law that directly prohibits a religious preschool from operating. Rather, at issue here is a government requirement that any preschool that wants to participate in the state's universal preschool program, and receive the public benefits that follow, must first satisfy various criteria, including that "each preschool provider provide eligible children an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability."
According to the Catholic preschools overseen by the Archdiocese of Denver, however, complying with that rule would force the schools to violate their religious beliefs. "It is undisputed that these preschools would otherwise be eligible [universal preschool] providers," the schools told the Supreme Court. "They are excluded solely because of their religious exercise—namely, their religious practices of ensuring that all enrolling families are supportive of the Catholic Church's teachings on sex and marriage and of treating enrolled four-year-olds in accordance with their biological sex."
These schools can point to a pair of recent Supreme Court precedents that will very likely count in their favor. In Espinoza v. Montana Department of Revenue (2020), the Court held that if a state provides educational subsidies that help parents send their children to private schools, the state "cannot disqualify some private schools solely because they are religious." Then, in Carson v. Makin (2022), the Court held that Maine's tuition assistance program violated the Constitution by excluding private schools that offered "sectarian" education. "A State's antiestablishment interest," the decision said, "does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise."
I would expect the outcome of St. Mary Catholic Parish v. Roy to follow in this same general pattern and hold something to the effect that when a state provides an educational public benefit, it must make some sort of accommodation for the religious views of the recipients.
In Other Legal News
Justice Elena Kagan made news a few months back when she defended her conservative colleagues on the Supreme Court from the oft-heard charge that they are totally in the tank for President Donald Trump. "I don't see this as a court that is just like, 'We're just going to rubber stamp what the current administration does.' You know, quite the opposite," Kagan said. "I think that that is a bad rap." In support of her argument, Kagan pointed to the fact that the Supreme Court had recently ruled against Trump on the two big issues that Trump himself valued the most: tariffs and birthright citizenship.
Kagan was in the news again on Tuesday, this time because she publicly blasted those same conservative colleagues for issuing decisions on voting rights and political gerrymandering that, in Kagan's words, have produced "a democracy that does not work as well as it should." According to Kagan, the Court's conservative majority "has kind of blinded itself to the very deleterious effects of their rulings on how the political system works."
Does this mean that Kagan has now stopped defending the conservative justices from the pro-Trump charge? Not at all. In fact, as The New York Timesput it, "she reiterated her defense of the conservative-dominated bench from a July appearance and said it was a 'bum rap' to suggest the court had been too deferential to Mr. Trump."
I don't know about you, but I find Kagan to be a refreshing public figure in these simplistic, partisan times. She is a staunch legal liberal with clearly stated objections to what the Supreme Court's conservative majority is getting up to, yet she refuses to be associated with the laziest progressive attacks on the Court. How many people of comparable public stature these days are willing to call out the shortcomings of their own side?
An uncanny strength of the second Trump administration has been its ability to be involved in so many scandals that no single one seems to become a dominant story.
Take the most recent allegations about Alina Habba, Trump's former personal defense attorney, who recently landed a plush gig working for Julio Herrera Velutini, a Venezuelan banker. Habba will get $50 million over five years to do unspecified work for a company that barely exists, according toThe New York Times, while Herrera got a presidential pardon for a 2025 campaign finance charge.
But that constellation of corruption might finally be breaking through to voters ahead of next month's midterm elections.
A recent Fox News poll found that "government corruption" was the top issue for voters, ranking ahead of inflation and gas prices. Conservative commentators are taking notice.
"What they're saying is, 'Look, we're tired of you getting rich and us getting poor,'" former White House Chief of Staff Mick Mulvaney said this week.
Tim Carney, senior columnist at the conservative Washington Examiner, also tabs the corruption issue—along with other "avoidable mistakes" such as the Iran War and tariffs—as one of the major reasons why Democrats are likely to win the midterms:
Trump and his family have enriched themselves in this second term in ways more similar to third-world regimes or Cook County than to any previous administration. He and his family operate a financial company that has received heavy investments from Qatar's government. He's sold access to himself by selling otherwise worthless cryptocurrency. The IRS he controls settled a lawsuit with him, promising to pay him $1.8 billion (this settlement was voided by a judge).
Trump is not directly on the ballot next month, of course. And most voters might not be able to tell you the details of any single Trump scandal in detail. Even so, this may turn out to be the defining narrative of the second Trump administration, and there seems to be a growing consensus that Republicans have allowed (if not aided and abetted) his corrupt behavior, so it's time to give Democrats a shot at reining it in.
The Trump corruption issue is like the Biden cognitive decline issue in one key sense: Everyone around the president or even supporting him professionally from afar should be asked about it, and their lies/claims of ignorance should be hung around their necks like dumbbells.
Vice President J.D. Vance told journalist Mark Halperin this week that he's "never seen any evidence that anybody's selling access to the president." When Halperin pushed back, Vance doubled down: "What I would say is I don't think there's evidence that the Trump family has become enriched by politics," the vice president said.
So either Vance isn't paying attention, or he's deliberately misleading. "Credit to Vance, it's as good an argument as is available to him," writes Daniel Foster at National Review. "The bad news is it's still not very good."
The internet nearly crashed on Wednesday as digital security and website administrators scrambled to patch two vulnerabilities in the PHP programming language that serves as the basis for many websites.
"Since its development in the 1990s, PHP has evolved into an essential scripting language for web development and is used across vast swaths of the internet in websites and software," explainsWired. "Everything from publishing systems like WordPress and Drupal to e-commerce platforms like Adobe's Magento are built on PHP."
The potential hacking abilities of advanced AI agents make these sorts of security risks more serious. In this case, however, the problem was also identified with the help of AI.
"Ryan Austin, a researcher at Calif, uncovered the flaws with help from GPT-5.6 Sol, one of OpenAI's most advanced models, during an audit of PHP's source code in August," The Wall Street Journalreports. Another security researcher had flagged the issue years ago, but it had never been fixed because it was considered "considered too difficult to exploit" by human hackers.
This is the future of humanity's digital landscape. "Given the severity of these flaws and PHP's widespread use, we consider this one of the most impactful security issues in recent memory," OpenAI said in a statement on Wednesday. "It highlights how AI can uncover security flaws with internet-scale impact, but the same capabilities can also help attackers rapidly develop offensive tools and exploits."
(A shoutout to Reason's web development team for keeping us up and running, today and every day.)
"Fanciful fiction." Media outlets also continue to face decidedly nondigital threats over articles and polls that make the president unhappy.
The White House threatened Politico on Wednesday with unspecified "consequences" for publishing "fanciful fiction" in a series of articles earlier this month about White House Chief of Staff Susie Wiles. If the articles are not retracted, it would trigger "an immediate review of Politico's relationship with the White House, and, of course, consideration of all other appropriate and available legal remedies," wrote White House counsel William O. Scharf in a letter to the media outlet's publisher.
Meanwhile, FCC Chairman Brendan Carr issued vague threats to broadcasters who cover what Carr called "Fake Polls" intended to "alter the normal patterns of voter turnout and enthusiasm."
These sorts of threats are an affront to the First Amendment, of course. But they are downstream of a more significant issue: the very existence of the FCC.
It's a problem, obviously, that the FCC is run by an authoritarian jackass. But the bigger problem is that the agency contains so many tempting tools for an authoritarian jackass to wield. https://t.co/Q4IJXntkOy
A judge in New Mexico ordered social media giant Meta (which owns Facebook and Instagram, among other things) to pay $25 billion for misleading users about data privacy. Last month, a jury found that Meta had violated the state's consumer protection laws 43 million times.
The environmental studies for California's high-speed rail line include such absurdities as counting bumblebees "one by one" and considering the train's "acoustic impacts on waterfowl and shorebirds." That's how to spend 16 years and $15 billion building nearly nothing.
Obvious metaphor alert!
A group dispatched by Hegseth's team in February attempted to move the historic globe, said to be used by Eisenhower during World War II.
They lifted it from its home in an Army office in the Pentagon … and dropped it. pic.twitter.com/vTjWdYXn0k
From Knife Rights, Inc. v. Blanche, decided yesterday by Fifth Circuit Judge Jennifer Walker Elrod, joined by Judges Don Willett and Cory Wilson:
This case presents a Second Amendment challenge to the Federal Switchblade Act (FSA)'s restrictions on switchblade knives. {Section 2 of the FSA, codified as 15 U.S.C. § 1242, … place[s] a fine of up to "$2,000 or imprison[ment] not more than five years, or both" for anyone who "knowingly introduces, or manufactures for introduction, into interstate commerce, or transports or distributes in interstate commerce, any switchblade knife."}
Applying the framework articulated in New York State Rifle & Pistol Association, Inc. v. Bruen, we hold that the FSA is unconstitutional. We determine that switchblade knives qualify as "Arms" and are covered by the "plain text" of the Second Amendment. Because the regulation implicates the amendment, the government bears the burden of establishing that the FSA comports with well-established principles of the Second Amendment and its regulatory tradition. The government fails to meet its burden. Specifically, the FSA's restrictions on the introduction, manufacture, transportation, and distribution of switchblades fail step two's "how" analysis….
Amongst other definitions, Heller highlighted that the founding era understood the term to mean "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." Switchblade knives have surely been used for "defence" and to "strike another."
Knives have been used for defense throughout human history, including the American founding. During the colonial period, "[e]veryone had a knife," and "as long as a man was required to defend his life," a "knife was a constant necessity." In the 1700s and during the American Revolution, knives were used for scavenging, hunting, and defense, and "[b]elt and pocket knives" accompanied frontiersmen "in the developing eastern settlements and on the western frontiers." Well into the 1800s, "men of all walks of life" were "accustomed to wear a knife as a necessary part of their garb."
Switchblade knives are no exception. "Springblade knives" (precursors to the modern switchblade) "have been made for hundreds of years because there has always been a need for a pocketknife that can be opened easily when the hands are wet, cold, or covered with gloves." In the 1700s, such knives were a part of certain types of flint-lock pistols: "[i]f the pistol mis-fired (which frequently happened) the person would touch the release button and the blade would open up, and be available for use." After the Civil War, patents for switchblade knives proliferated, and the large-scale production of "switchblades in the United States began in the 1880s, shortly" thereafter. Then, "[o]ver a 50 year period from the mid 1890s to the mid 1940s there had been approximately 20 different companies who had manufactured switchblade knives in this country." In short, some forms of switchblades have been commonly used for defense for hundreds of years. They are "arms."
Accordingly, the government's not-in-common-use argument fails. In addition to the wealth of history indicating the founding-era uses of switchblades for defense, the record indicates that there are "millions" of automatically opening knives in the United States now. The record further reflects that switchblade knives are lawfully used for "every day utility use, hunting, fishing, recreation, and camping and hiking." Despite the FSA, there are still lawful sales of switchblade knives in the United States. Consequently, switchblade knives are "arms" "in common use" both then and now….
We proceed to step two [of the Bruen analysis]. Here, we assess whether § 1242 is consistent with the principles that flow from the Second Amendment's history and tradition….
The government makes its stand primarily by citing a host of nineteenth-century cases in support of its argument that there existed a well-established tradition of regulating "inherently concealable weapons." The concealable nature of these weapons, the argument goes, makes them "particularly dangerous." The government connects this with the clear congressional history that suggests that Congress enacted the FSA because it believed that switchblades posed a unique danger and therefore needed to be restricted. This line of argument is focused on answering the "why" portion of the step two inquiry.
However, we do not reach the question of whether the government meets its burden as to the "why" analysis because it fails the "how" analysis. As mentioned, the Supreme Court has informed us that "[e]ven when a law regulates arms-bearing for a permissible reason," it may not be "compatible with the right if it does so to an extent beyond what was done at the founding." So, even if we grant the government's argument that there is a well-established tradition of regulating "inherently concealable weapons," this only addresses the "why" inquiry.
The government cites no historical analogue that regulates the manufacture, transportation, or distribution of "inherently concealable weapons," much less switchblade knives. Rather, its analogues suggest that there is a tradition of regulating the manner of carrying concealable weapons….
The government's best attempt at meeting its burden is through a single citation to a treatise-length law review article. See Gov't Br. at 16–17 (citing David B. Kopel & Joseph G.S. Greenlee, The History of Bans on Types of Arms Before 1900, 50 J. Legis. 223 (2024)). It cites the article to show how "statutes regulated concealable weapons in a variety of different ways, including banning carry or concealed carry, prohibiting their possession in specific locations, subjecting their sale or possession to taxes, or restricting the sale to minors." The referenced section of the article catalogs nearly two hundred pre-1900 statutes regulating daggers, dirks, and sword canes.
Of the nearly two-hundred statutes, only two regulate bladed weapons in an analogous manner as § 1242. See 1881 Ark. Acts 191, 192 (proscribing the "sell[ing], barter[ing] or exchang[ing]" of "any dirk or bowie knife, or sword or spear in a cane"); 1837 Ga. Laws 90, 90–91 (making unlawful "for any merchant, or vend[o]r of wares or merchandize in this State, or any other person or persons whatsoever, to sell, or offer to sell … Bowie, or any other kinds of knives, manufactured and sold for the purpose of wearing, or carrying the same as arms of offence or defense, pistols, dirks, sword canes, spears, &c"). Two laws out of nearly two hundred bring us into outlier territory….
John William Dillon (Dillon Law Group, A.P.C.), Richard Brent Cooper (Cooper & Scully, P.C.), and Daniel Schmutter (Hartman & Winnicki, P.C.) represent plaintiffs.
From Butler v. Lipscy, decided Monday by Minnesota Court of Appeals Judge Keala Ede, joined by Judges Diane Bratvold and Jon Schmidt:
Butler alleged that Lipscy engaged in acts of harassment targeting Butler and her children, including: following, monitoring, or pursuing Butler; making unwanted visits to Butler; frightening Butler with threatening behavior; taking pictures of Butler without permission; and using social media to harass Butler….
The facts, according to the appellate court's summary of the trial court findings, were this:
At the time the district court issued the HRO, Butler was a licensed marriage and family therapist who served "historically marginalized communities." This included members of "the Queer community," which Butler defined as "the Two Spirit (2S)/Gay/Lesbian/Bisexual/Transgender/Intersex/etc. community as a whole and individually." Butler was also "active in her local Itasca Pride board and community as a volunteer and current board member." She has three children, one of whom is "non-binary."
Lipscy held "Christian beliefs" that she posted about on the internet. And Lipscy administered a webpage called "Grand Rapids Rant."
Itasca Pride held a festival on June 23, 2024. Before that event, Lipscy posted on the internet about a public gathering called, "Protect the children from Pride/Drag show and Walk with Prayer," which Lipscy scheduled for the same date, time, and location as the Itasca Pride Festival. Before the events occurred, Lipscy wrote on the internet: "But if you cause one of these who trust in me to fall into sin, it would be better for you to have a large millstone tied around your neck and drowned in the depths of the sea. #BeTheirVoice Matthew 18:6." Lipscy also used the internet to encourage people to attend and to wear white shirts in opposition to Itasca Pride and in celebration of "traditional family values." At the June 23 Itasca Pride event, Lipscy took pictures of Butler's children, and Butler's husband told Lipscy to stop.
On September 28, Lipscy posted images from an Itasca Pride webpage on her Grand Rapids Rant internet site, with her own captions. These images included Butler's children with captions such as "Sickening," "Poor children," and "Those poor poor kids." Lipscy also identified Butler by name, listed Butler's title as "local therapist"—which "insinuate[ed] … [that] Butler was not a real therapist"—and referred to an event coordinated by the Minnesota Department of Natural Resources and Itasca Pride as having "influence over … children."
On October 20, Lipscy attended an event led by a school-board candidate who was advocating for a prohibition on transgender females in female sports. Lipscy broadcast the event on her Grand Rapids Rant webpage, identified Butler's husband, and described him as "pushing for boys to be in girls' bathrooms and supporting bringing kids to drag events." More specifically, Lipscy stated that Butler's husband "wasn't truly interested [on the day of the event] …, he just wanted to report back. Silly boy, [he] could've just watched live with [Butler]." In addition, "Butler's children attend the same school as … Lipscy's niece," and "Lipscy ha[d] been at the school since the above-described incidents … occurred."
Butler was "generally fearful for the safety of herself and children following the incidents involving … Lipscy." She "installed [four] cameras on her property and [two] cameras on her vehicle," "spent sessions with her clients discussing concerns the clients ha[d] about their safety given … Lipscy's social media posts referring to … Butler," "removed signage from her office, met with clients in a place other than her office, and met via tele-health to address concerns about client safety."
Her children became "afraid to go out in public without a parent and [had] an increased fear when out in the community." One of Butler's children "changed the way they dress[ed] because they [did] not want to get physically or emotionally hurt." Butler's children were "fearful that their photos [would] be put online to shame their family," "ask[ed] in public if they [were] safe," and "question[ed] whether people around them [were] 'people that hate Queer people.'"
The court issued a harassment restraining order that provided, in relevant part, that Lipscy
"shall not harass … [Butler] or her minor children included in the Petition";
"shall have no direct or indirect contact with … [Butler] or her minor children including any visits, phone calls, contact via electronic means such as email or social networking sites, threats or assaultive behavior to the protected persons, damaging or stealing property belonging to the protected persons, breaking into and entering the protected persons' residence, and/or taking pictures of the protected persons without permission from … [Butler]";
"is prohibited from being within 500 feet of … [Butler's] home" or "job site"; …
"is restrained from harassing, stalking, or threatening the protected persons, or engaging in other conduct that would place the protected persons in reasonable fear of bodily injury to that person"; and "is prohibited from the use, attempted use, or threatened use of physical force against the protected persons that would reasonably be expected to cause bodily injury."
Given that the court had found that Lipscy's social media posts referring to Butler were "harassment," and then restrained Lipscy from "harassing" Butler, the order thus forbade Lipscy from continuing to mention Butler. And indeed the appellate court acknowledged this, stating (emphases added) that the HRO
"allows Lipscy to express her religious views, provided that she does not mention Butler and her children and does not approach Butler, her home, and her workplace," and
"merely prohibits [Lipscy] from directing harassing conduct toward Butler and her children—such as photographing them, repeatedly naming them, and targeting them."
The appellate court upheld the order, reasoning that Lipscy's actions could indeed be found to be harassment, defined by the Minnesota HRO statute as "repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another":
The district court determined that Lipscy "engaged in harassment," reasoning that Lipscy had: followed, monitored, or pursued Butler and her children; frightened Butler and her children; taken pictures of Butler's children without permission; and used social media to harass Butler on multiple occasions. In making this determination, the district court relied on evidence in the record that Lipscy had reposted pictures of Butler's children from the Itasca Pride webpage to the Grand Rapids Rant internet site with her own captions including: "Sickening," "Poor children," and "Those poor poor kids."
The district court also based its decision on evidence that Lipscy had reposted pictures from the Itasca Pride event while referring to Butler in a manner that questioned Butler's credentials as a therapist and had shared a video of Butler's husband while referring to Butler by name. And the district court made specific findings about how Butler was "generally fearful for the safety of herself and children following the incidents involving … Lipscy." …
And the court held that this doesn't violate Lipscy's free speech or religious freedom rights, because it is directed only at "speech or conduct that … is in violation of one's right to privacy," which Minnesota courts had held is constitutionally unprotected.
I think such an injunction is unconstitutional, at least as to the prohibition on repeatedly naming Butler in posts; for more on such orders, and the appellate decisions that mostly set them aside, see my Overbroad Injunctions Against Speech (Especially in Libel and Harassment and Cases) article. And while I'm sympathetic to the argument that adults should keep the children out of this, I'm not sure it's constitutional even as to that. But in any event, the Minnesota Court of Appeals thought the injunction was permissible, and I thought it worthwhile to note that.
Sara Jane Baldwin (Gender Justice) represents plaintiff.
One month after Washington, D.C., celebrated America's 250th anniversary, it marked a more ignominious milestone: a full year since President Donald Trump deployed thousands of National Guard soldiers to the capital.
The approximately 4,600 National Guard members have been an unavoidable presence in D.C., wandering the National Mall and downtown streets in groups of three or four, or standing idly in Metro stations chatting. Occasionally, they're tasked with picking up trash at parks. Tourists take selfies with them by the now-fenced-off Lafayette Square in front of the White House.
They're not going anywhere. The Trump administration is moving forward with plans to acquire up to 2,000 housing units to support long-term National Guard deployments. The Department of Defense has estimated that extending the mission from October 2026 through to the end of the Trump administration in January 2029 will cost about $1.4 billion.
According to the Trump administration, all of this has been necessary to transform D.C. "from a crime-ridden city into a safe and beautiful haven for residents and visitors alike."
Crime in D.C. is down 20 percent from 2025, according to the Metropolitan Police Department, but an August Reuters investigation found National Guard soldiers were involved in only a tiny fraction of arrests in the safer parts of the city, mostly for minor offenses such as shoplifting and turnstile jumping. Crime has been dropping nationwide, a trend that started before Trump took office and includes cities that aren't occupied by federal law enforcement and soldiers.
Even if the Guard presence has contributed to a drop in crime, it's a civil liberties nightmare. It puts untrained military in the role of policing civilians. It usurps local police departments that are ostensibly answerable to the communities they police, and it normalizes the deployment of military forces domestically—a red line for a free society.
"There's a deep irony that here we are in the capital of the free world, and our president is treating it like a police state," Scott Michelman, legal director of the ACLU of the District of Columbia, told PBS in August. "D.C. residents have lived with our National Guard troops in our neighborhoods for about a year, despite the absence of any genuine emergency and really any reason for them to be here."
Last November, a federal court preliminarily ruled that the deployment was illegal. However, an appeals court allowed the Trump administration to keep troops deployed in D.C. while it considers the administration's appeal of that ruling.
The appeals court decision is absurd. The appellate panel is fully aware that every day the case drags on is another day that D.C. residents are being subjected to a potentially illegal military occupation, and another day that taxpayers will foot the bill for a wasteful fit of presidential hubris.
The damages are compounding. The first anniversary of Trump's deployment of National Guard soldiers to D.C. should be the last.
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