Age verification laws have been sweeping the country the year, as states push to require social media platforms and adult-oriented websites to card their users. Rather than check IDs, some major porn platforms have simply been pulling out of states where these laws are enacted.

This "is entirely what we were after," said Republican operative Russell Vought in a hidden-camera video released last week.

The video was recorded by reporters from the British nonprofit Centre for Climate Reporting. Posing as the relatives of a fictitious conservative donor, the reporters talked with Vought in a D.C. hotel suite in July and, last Thursday, posted a recording of this conversation.

'We're doing it from the back door'

In a portion of the video, Vought—who served as policy director for the Republican National Committee (RNC) platform rewrite this year—talks about why activists have been pushing age verification laws.

"We're doing it from he back door. We're starting with the kids," Vaught said. "We'd have a national ban on pornography if we could, right? So, like, we would have, you know, the porn companies being investigated for all manner of human rights abuses."

A national ban on porn would, of course, run up against the First Amendment. So savvy anti-porn activists have taken to pushing age verification laws instead.

"We came up with an idea on pornography to make it so that the porn companies bear the liability for the underage use, as opposed to the person who visits the website [having to] certify that 'I am 18," Vought told the undercover Centre for Climate Reporting staffers. "We've got a number of states that are passing this and then you know what happens is the porn company says 'We're not going to do business in your state'—which, of course, is entirely what we were after."

Who Is Russell Vought?

Vought is the founder of the Center for Renewing America, a right-wing think tank whose "mission is to renew a consensus of America as a nation under God," per its website. In May, he was appointed policy director of the RNC's platform committee.

Vought was previously an official in the Trump administration's Office of Management and Budget (OMB), eventually serving as OMB director from July 2020 to January 2021.

But Vought is probably best known as one of the architects of Project 2025, the Heritage Foundation's now-infamous document laying out what it wants to put on the agenda of a second Trump administration.

Trump and his campaign have distanced itself from the much-derided Project 2025 agenda, which Democrats have latched onto as a way to portray Trump's campaign as nefarious and extreme. But part of the idea behind the agenda is to put Project 2025 supporters back in the federal government if Trump is elected again. So even if Trump isn't doesn't endorse Project 2025, people from Project 2025 may well be involved in a future Trump administration.

And Vought is "likely to be appointed to a high-ranking post in a second Trump administration," according to the Associated Press (AP).

"In his public comments and in a Project 2025 chapter he wrote, Vought has said that no executive branch department or agency, including the Justice Department, should operate outside the president's authority," reports the AP. "'The whole notion of independent agencies is anathema from the standpoint of the Constitution,' Vought said during a recent appearance on the Fox Business Network."

"Eighty percent of my time is working on the plans of what's necessary to take control of [federal] bureaucracies," Vought said in the Centre for Climate Reporting's video.

Project 2025 on Porn

The idea that age verification laws are meant to make porn websites shutdown isn't exactly a surprising revelation. It's long been clear that a large subset of people pushing porn age-check laws would like to do away with porn entirely. Sex workers have certainly been warning as much for a while now.

Still, it's notable to hear this vision laid out so plainly from someone with such a significant hand in shaping conservatives' policy agenda.

Rachel Cauley, a spokesperson for the Center for Renewing America, downplayed the idea that the video has revealed anything new. "It would have been easier to just do a google search to 'uncover' what is already on our website and said in countless national media interviews," she told CNN.

Indeed, people like Vought have not hidden their anti-porn agenda. Project 2025 calls for banning porn and imprisoning those who make or distribute it. Porn "has no claim to First Amendment protection," it states. "Pornography should be outlawed. The people who produce and distribute it should be imprisoned. Educators and public librarians who purvey it should be classed as registered sex offenders. And telecommunications and technology firms that facilitate its spread should be shuttered."

Project 2025 also takes a broad view of what constitutes pornography, saying that porn is "manifested today in the omnipresent propagation of transgender ideology." It seems pretty clear that a Project 2025–style porn ban wouldn't simply target videos and imagery depicting nudity or sex but a wide swath of content related to gender and sexuality.

More Sex & Tech News

• The U.S. Court of Appeals for the Ninth Circuit ruled in favor of the tech-industry association NetChoice in a case concerning California's Age Appropriate Design Code. "The court recognized that California's government cannot commandeer private businesses to censor lawful content online or to restrict access to it," said Chris Marchese, director of the NetChoice Litigation Center.

• Another critical review of Jonathan Haidt's The Anxious Generation, this time written by University of Vienna professor Tobias Dienlin and published in Journalism & Mass Communication Quarterly. "While several arguments are compelling, the book misrepresents the literature, which reports small negative relations at best," Dienlin posted on X. (The published copy of Dienlin's review is paywalled, but you can read a pre-print version here. My review of the book is here.) 

• Amber Batts reflects on how she got sentenced as a "sex trafficker" in Alaska 9 years ago.

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Moral panic about sex work leads to law enforcement practices that reach far beyond anyone engaged in or with erotic labor. The latest example comes from San Diego County, California, where cops are putting up a creepy surveillance tower under the auspice of stopping sex sellers and sex buyers from meeting.

The prostitution surveillance tower, stationed along National City's Roosevelt Avenue, will record video of anyone who happens to be in the area.

Normalizing Warrantless Surveillance

A supporter of the surveillance tower told a local CBS affiliate that it will help reduce prostitution by recording the license plate numbers of people who enter the area to pick up sex workers.

Schemes to catch people who want to pay another consenting adult for sex are a waste of money and manpower and a violation of privacy, free association, and bodily autonomy, of course. But even if you think that punishing prostitution customers (or sex workers themselves) is a swell idea, it's hard to see how the surveillance tower makes any sense.

You can't charge someone for simply picking another person up off the street, even if police think the person on the street looks like a sex worker. Even if money visibly exchanged hands—well, it's not a crime to give someone cash. Unless the entire sexual exchange happens right in front of the cameras, it's hard to imagine on what basis cops could possibly make any charges stick.

Besides, the tower is very visible and local media have been publicizing it. Smart sex workers and their customers will simply move to another, less visible area. If the surveillance tower has any impact at all, it will be to drive prostitution from one part of the city to another. That's it.

It seems clear that the idea here isn't actually cracking down on prostitution. It's just a way for authorities to look like they're doing something about sex trafficking while further normalizing the idea of conducting broad, warrantless surveillance of everyone.

So Many Sex-Trafficking Myths

Local reporting on the new surveillance tower has been heavy on human trafficking myths and dubious statistics. Citing a group called The Ugly Truth, Fox 5 San Diego suggested that "there are over 3,000 to 8,000 sex trafficking victims in the county each year."

And on what data does The Ugly Truth base this? Its website doesn't say. But considering that that's vastly more victims than we see in trafficking arrests across the whole country in a year, and considering the fact that "sex trafficking stings" in California and elsewhere routinely turn up few or no victims, I'm going to guess this data is bogus, if it exists at all.

The Ugly Truth's website also states that there are "approximately 18,000 victims in the U.S." If we take that at face value (and again, it's dubious), that would mean that around 17 to 44 percent of all U.S. trafficking victims are in San Diego County. Why, it's almost as if these numbers are completely made up…

Such sketchy figures are par for the course when it comes to activism and reporting about sex trafficking.

Fox 5 also claims that the "the average age of entry into sex trafficking is 16" and that prostitution is "an $800 million industry locally." It does not cite any sources for these statements.

Claims like these tend to be based on shoddy studies put out by anti-prostitution activists and from groups whose funding depends on proving that sex trafficking is a major issue. For instance, there's a persistent claim that the average age of entry into prostitution or the average age at which someone becomes a trafficking victim is somewhere between 13 and 16. Here's what sex worker Maggie McNeill told Reason about this "fact" back in 2014:

There's a researcher named Melissa Farley who does an awful lot of these kind of studies to provide numbers for the anti-prostitution people. And on her site she traced this supposed number of average of 13 to several old studies which all drew back to a study done here in LA actually in the early 80's—in '82. And that study found the average age of entry for underage sex workers—not for all sex workers, but only for underage ones—was about 16. In a different part of the study, they listed 13 as being the average age of first sexual contact. First kiss, first groping in a car, first whatever. Farley seems to have conflated the two numbers to represent that 13 as being the age not of first sexual contact, but of first accepting money for it. Even so, she still was only claiming that that was the age of origin for underage sex workers. Normal distortion, the gossip game syndrome, has changed that from underage to average of all.

Glenn Kessler at The Washington Post has fact-checked many statistics like these, systematically dismantling claims about the average age of entry into prostitution, the revenues generated by sex trafficking, human trafficking across the U.S.-Mexico border, and the number of total trafficking victims and child trafficking victims. These articles are a bit old by now, but common claims about sex trafficking are still rooted in the same shoddy data Kessler started tracing nearly a decade ago, so I highly recommend checking out his work.

The FBI Goes to Comic Con

Thankfully, there seem to be fewer nonsense statistics about sex trafficking in the media now than a decade ago, when trafficking panic was reaching a peak. But coverage of the National City surveillance tower serves as a good reminder that debunked myths are still out there—and still being used to justify police antics that otherwise might creep people out.

And while sex trafficking panic is arguably less omnipresent now than it was a decade ago, its press coverage should remind us how institutionalized this panic has become.

Authorities overseeing old-school vice stings routinely call them "human trafficking operations" or "sex trafficking stings" now, and reporters and people on social media just casually parrot this language. See, for instance, a recent announcement from Caflironia Attorney General Rob Bonta, who alleged that "sex traffickers capitalize on large events like Comic-Con to exploit victims" (never mind that these sorts of claims around big events have been debunked again and again) and bragged that "an investigation by the San Diego Human Trafficking Task Force" led to "14 individuals [being] arrested."

Local, national, and even international media have run with Bonta's framing in their headlines. "14 Arrested at Comic-Con In Anti-Human Trafficking Sting," NBC reported. "Fourteen arrests in undercover sex trafficking sting at San Diego Comic-Con convention," Sky News said.

If you read a few paragraphs down into Bonta's press release, you'll see that no sex trafficking or labor trafficking arrest resulted from this trafficking sting. The 14 people arrested were picked up for trying to pay another adult for sex. That other adult, however, turned out to be an undercover cop.

The FBI, Homeland Security Investigations, and the Naval Criminal Investigative Service assisted in these efforts.

This is the sort of vice sting that cops have been doing from time immemorial—and which many people started seeing as a waste of taxpayers' resources when it was done simply to arrest adult sex workers or their would-be clients. So now, authorities dress up their prostitution stings in the language of stopping sexual exploitation and slavery.

In this case, authorities also pretended to be prostitution clients and contacted sex workers. But instead of calling this what it is—a sex worker sting—they say they're recovering "potential victims of trafficking." If you frame all sex workers as potential trafficking victims, then you can call luring them to police under false pretenses a rescue mission, even if all that happens once they're in custody is they get "offered services." (That is, they get the phone numbers of some local charities.)

And while it's unclear if the "victims" here were arrested, this isn't uncommon in these sorts of operations, with police justifying it by saying they need to arrest them in order to save them.

The Comic Con operation did find one 16-year-old selling sex. (A minor selling sex is legally considered to be a sex trafficking victim, even if there is no trafficker.) Helping minors who are selling sex—whether they're actually being "trafficked" or not—is a good goal, of course, and people will point to this one teen as evidence hat the whole operation was a success. But arresting would-be sex buyers had nothing to do with finding this teenager; you didn't need to do one to do the other. And is the best way to help teenage sex workers really to terrify them in a sting and then turn them over to child welfare agents? Shelters and social services for victims—teen or adult—seem like a much more effective and humane approach.

More Sex & Tech News

• The Department of Justice is suing TikTok, claiming the company has violated the Children's Online Privacy Protection Act. Much of the complaint turns on the idea that TikTok should magically know whether any user is under age 13, even when users lie about their age or sign in with credentials from another website. The Justice Department also alleges that TikTok collected too much data on users it knew were under 13, and it objects to the fact that the company wouldn't delete minors' accounts upon parental request unless parents certified under penalty of perjury that they were in fact the users' parents.

• In a new report titled Abortion in the USA: The Human Rights Crisis in the Aftermath of Dobbs, Amnesty International shares stories from pregnant women in states where abortion is banned.

• The Consumer Product Safety Commission says Amazon is legally liable for recalling products sold by third parties.

• Some New Jersey lawmakers want to require adult-oriented websites to verify visitor ages. Meanwhile, a measure sponsored by Assemblyman Michael Inganamort (R–Morris) would require computer manufacturers to block porn sites unless a user pays a $20 fee, and to block "any website that facilitates prostitution."

• Another blow to "net neutrality": The U.S. Court of Appeals for the Sixth Circuit "blocked the Federal Communications Commission's reinstatement of landmark net neutrality rules, saying broadband providers are likely to succeed in a legal challenge," reports Reuters. The court had already delayed the rules—which were initially adopted under former President Barack Obama then rescinded by former President Donald Trump—after the commission voted in April to bring them back. The court on Thursday said "it would temporarily block net neutrality rules and scheduled oral arguments for late October or early November on the issue, dealing a serious blow to President Joe Biden's effort to reinstate the rules," Reuters reports.

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Hannah Neeleman is a mother of eight, a beauty queen, a former Juilliard ballerina, and one of the most popular "momfluencers" on social media. She lives on a Utah ranch with her husband, JetBlue airlines heir Daniel Neeleman, and puts out both copious content and pasture-raised meat under the moniker Ballerina Farm. For years, their photogenic Mormon family has been amassing Instagram and TikTok followers—along with ample scrutiny and scorn from certain sorts of progressive-leaning, extremely online women. And these sorts were served a feast last month in the form of a London Times profile, which posited not-at-all-subtly that Hannah was being controlled and coerced by Daniel.

The profile was a little weird and the responses to it weirder. But they are also emblematic of something that goes way beyond Ballerina Farm: an inability to imagine women having different values, different politics, and different ambitions. And a refusal to accept that women may be happy leading all different sorts of lives.

Trad-Wife Tragedy

Times writer Megan Agnew clearly had an opinion about the Neeleman family's dynamics and framed her article to maximize the chances of readers coming away with the same opinion. That's not a journalistic crime by any means—the best profiles often inject some of the writer's own insight. But, to me, Agnew's insights felt shoehorned, and not entirely convincing. The quotes and anecdotes she wielded could betray a patriarchal arrangement in which Hannah is a not-so-enthusiastic participant. Yet there were lots of ways to read them that didn't support such a conclusion, and that's not to mention all the quotes and anecdotes that Agnew necessarily left out.

The internet, of course, ran with the tragic interpretation—Hannah as a put-upon waif of Dickensian (or at least Lifetime movie) proportions, all thwarted ambitions and rural isolation. A husband on a "sexist conquest" who stole her dreams, "trapped" her with eight kids, and now wouldn't even let her get a nanny or give her a trip to Greece for her birthday.

A consensus was emerging that Hannah needed to be freed.

But freed from what? Hannah has a life that many dream of, it seems. She may not be a professional ballerina, but she still has a highly successful career and a level of fame she likely never would have earned from ballet. She has a beautiful home, a wealthy husband, and eight healthy children whom she gets to raise in a spectacular setting an hour from where she grew up in a family that looks a lot like the one she has now (Hannah was one of nine children).

The interpretations of one journalist who spent a few hours with the family and a cornucopia of strangers' speculation aside, signs suggest Neeleman is happily living the life she wants to be living. It is highly weird to act like the fact that she once dreamed of being a pro ballerina means she's unhappy in any other lifestyle or that she didn't have other ambitions, too (especially since she has also talked about how she always wanted a big family).

Could Hannah be secretly miserable? Sure. But so could anyone.

Poor Little Political Wives

Reactions to Hannah Neeleman conjure that classic second-wave feminist trope: false consciousness. Sure, she says she is happy, fulfilled, and in control of her own destiny—but internet feminists know better. Clearly her claims are either an act (perhaps produced under the duress of a manipulative husband) or the result of being raised in a Mormon household. The poor dear can't even see how oppressed she is!

The Ballerina Farm discourse echoes recent reactions regarding Usha Vance, wife of Republican vice presidential candidate J.D. Vance.

Usha and J.D. met at Yale Law School. Usha also has an undergraduate degree from Yale and a master's degree from Cambridge. Until recently, she was a lawyer with one of the country's top law firms. At the Republican National Convention, she appeared confident and excited as she talked about her husband's candidacy and about their life together, which includes three children. Vance has, on numerous occasions, credited Usha for helping drive and shape him.

By all indications, Usha is an intelligent and accomplished woman who backs her husband's political career. Yet Vance, too, received the Hannah Neeleman treatment following her husband joining the Donald Trump ticket.

People began sharing images in which Usha was not smiling or looked sad as if this was proof that she disapproved of her husband's career, or worse.

Some surmised that J.D. must be an "abusive control-freak" whom Usha only stays with because this sort of thing was supposedly normalized by her Indian upbringing. Her "body language projects subservience." J.D. and/or the Trump campaign made her quit her job.

The comments about Usha Vance echoed a 2016 election-era refrain: "Free Melania." There were a lot of people then convinced, or at least opining, that Melania Trump wanted no part in her husband's political schemes and was a tragic figure trapped in a loveless and controlling marriage.

I won't pretend to know exactly what's going on between the former president and first lady. But the idea that Melania couldn't leave if she wanted to defies logic. The Melania who is literally trapped is a fiction, invented to further demonize Trump and/or deny that she is culpable in the creation of the life they both lead.

 

Voting for Harris Is 'in Everyone's Best Interest'

Shades of the same attitude driving this weird anti–fan fic about Usha Vance, Hannah Neeleman, and Melania Trump were detectable during a white women for Kamala Harris call last week.

During that call, author Glennon Doyle posited that the reason many white women are afraid to publicly support Harris and/or other Democratic candidates is fear of being disliked, chastised, or looked down upon. White women don't want to make neighbors "uncomfortable," and they "desperately need to be approved of and liked," Doyle said.

Meanwhile, Shannon Watts, who organized the call, suggested that the reason why many white women vote Republican is because they believe "that it is in our best interest to use our privilege and our support systems of white supremacy and the patriarchy to benefit us."

Voting for Harris is really what's "in everyone's best interest," said Watts.

This sort of rhetoric was common when Hillary Clinton was running for president and again after the election, when it came out that a majority of white women voters cast their ballots for Trump. Is there no room for imagining that some women might just be conservatives and/or dislike the Democratic candidate?

Can't Women Be Individuals?

In the construction of victimhood narratives around Hannah Neeleman, Usha Vance, and Melania Trump, there is an element of projection that is pre-political. Maybe it's rooted in jealousy, anxiety, revulsion, or anger. But for whatever reason, some people seemingly want to believe these women are unhappy. Perhaps it helps them get over their jealousy, or feel better about their own life choices, or feel there's still justice in the world—who knows? But it's clearly not based solely on the evidence laid before us.

The other thread underpinning some attitudes toward Melania Trump, Usha Vance, Hannah Neeleman, and any women who won't vote Democrat is a denial of conservative women's agency.

And while this thread has implications for politics, it also seems born of a realm outside of them. It's the inability—displayed here by the left, but also visible across the political spectrum—to imagine people genuinely believing in things different than what you believe.

In the political realm, this manifests as a conviction that support for different candidates and different policies doesn't come down to a million different factors and values and vibes but stupidity, brainwashing, coercion, and cowardice. Men get this treatment sometimes, too, but it's much more commonly aimed at women.

On the left, this manifests as utter disbelief that women like Hannah Neeleman and Usha Vance could be happy co-pilots in the lives they and their husbands are leading. Or as an insistence that the only reason women would oppose Harris is because they're trying to suck up to or benefit from white supremacy and patriarchy. On the right, we sometimes see it manifested as an assertion that female politicians, high-powered working women, feminist activists, etc., only speak out against conservative policies because they're bitter about their own lives.

Both sides do this at a peril to their own persuasive efforts. You won't win people over by telling them, "You may think you're happy, or expressing true convictions, but you're actually just a cog in cultural Marxism or white supremacist patriarchy."

What makes this especially weird coming from the left is that left-leaning women tend to do this under the mantle of feminism.

But it's not actually feminist to paint all women with one brushstroke. Women are not and will never be a monolith—not in their politics, their professional leanings, their preferred relationship styles, or anything else. Women are happy in as many different types of arrangements as men are, and as capable of choosing for themselves. Conversely, not every woman bristles at the kind of things that make some feminists bristle, including having a horde of children or moderating one's career plans to make this possible.

The sooner self-proclaimed feminists can see women as individuals—including sometimes very flawed individuals—the sooner we'll all be seeing women leading more free and full lives, in all their weird and messy and dazzling forms.

The post From Usha Vance to Ballerina Farm: Denying Conservative Women's Individuality appeared first on Reason.com.

A "White Dudes for Harris" Zoom call reportedly raised $4 million in donations for Vice President Kamala Harris' presidential campaign. After the call, the @dudes4Harris account on X was briefly suspended.

Is this election interference?

If we remain in reality, the answer is of course not.

Even if X CEO Elon Musk ordered the account suspended because of its politics, there would be no (legal) wrongdoing here. X is a private platform, and it doesn't have any obligation to be politically neutral. Explicitly suppressing pro-Harris content would be a bad business model, surely, but it would not be illegal. Musk and the platform formerly known as Twitter have no obligation to equally air conservative and progressive views or give equal treatment to Republican and Democratic candidates.

But there's no evidence that X was deliberately trying to thwart Harris organizers. The dudes4Harris account—which has no direct affiliation to the Harris campaign—was suspended after it promoted and held its Zoom call and was back the next day. That's a pretty bad plan if the goal was to stop its influence or fundraising. And there are all sorts of legitimate reasons why X may have suspended the account.

The account's suspension is "not that surprising," writes Techdirt Editor in Chief Mike Masnick (who, it should be noted, is intensely critical of X policies and Musk himself on many issues). "Shouldn't an account suddenly amassing a ton of followers with no clear official connection to the campaign and pushing people to donate maybe ring some internal alarm bells on any trust and safety team? It wouldn't be a surprise if it tripped some guardwires and was locked and/or suspended briefly while the account was reviewed. That's how this stuff works."

If we step out of reality into the partisan hysteria zone, however, then the account's temporary suspension was clearly an attempt by Musk to sway the 2024 election.

"Musk owns this platform, has endorsed [former President Donald] Trump, is deep into white identity grievance, and just shut down the account that was being used to push back against his core ideology and raise money for Trump's opponent. This is election interference, and it's hard to see it differently," posted political consultant Dante Atkins on X.

"X has SUSPENDED the White Dudes for Harris account (@dudes4harris) after it raised more than $4M for Kamala Harris. This is the real election interference!" Brett Meiselas, co-founder of the left-leaning MeidasTouch News, posted.

Versions of these sentiments are now all over X—which has also been accused of nefariously plotting against the KamalaHQ account and photographer Pete Souza. Some have even gone so far as to suggest that Musk is committing election interference merely by sharing misinformation about Harris or President Joe Biden, or by posting pro-Trump information from his personal account.

We're now firmly in "everything I don't like is election interference" territory. And we've been here before. In 2020, when social media platforms temporarily suppressed links to a story about Hunter Biden or suspended some conservative accounts, it was conservatives who cried foul, while many on the left mocked the idea that this was a plot by platforms to shape the election. Now that the proverbial shoe is on the other foot, progressives are making the same arguments that conservatives did back then.

Musk himself is not immune to this exercise in paranoia and confirmation bias. For whatever reason, Google allegedly wouldn't auto-populate search results with "Donald Trump" when Musk typed in "President Donald." So Musk posted a screenshot about this, asking "election interference?"

Again, in reality: no.

As many have pointed out, Google Search does indeed still auto-populate with Trump for them. So whatever was going on here may have simply been a temporary glitch. Or it may have been something specific to things Musk had previously typed into search.

Even if Google deliberately set out not to have Trump's name auto-populate, it wouldn't be election interference. It would be a weird and questionable business decision, not an illegal one. But the idea that the company would risk the backlash just to take so petty a step is silly. Note that Musk's allegation was not that Google was suppressing search results about Trump, just the auto-population of his name. What is the theory of action here—that people who were going to vote for Trump wouldn't after having to actually type out his name into Google Search? That they somehow wouldn't be able to find information about Trump without an auto-populated search term?

"Please. I beg of people: stop it. Stop it with the conspiracy theories," writes Masnick. "Stop it with the nonsense. If you can't find something you want on social media, it's not because a billionaire is trying to influence an election. It might just be because some antifraud system went haywire or something."

Yes. All of that.

But I suspect a lot of people know this and just don't care. Both sides have learned how to weaponize claims of election interference to harness attention, inspire anger, and garner clout.

Just a reminder: Actual election crimes include things like improperly laundering donations, trying to prevent people from voting, threatening people if they don't vote a certain way, providing false information on voter registration forms, voting more than once, or being an elected official who uses your power in a corrupt way to benefit a particular party or candidate. Trying to persuade people for or against certain candidates does not qualify, even if you're really rich or famous and even if your persuasion relies on misinformation.

Also, content moderation is impossibly difficult to do correctly. And tech companies have way more to lose than to gain by engaging in biased moderation.

So if you feel yourself wanting to fling claims of election interference at X, or Google, or Meta, or some other online platform: stop. Calm down. Take a breath, take a walk, whatever. This is a moral panic. Do not be its foot soldier.

More Sex & Tech News 

• The Kids Online Safety Act passed the Senate by a vote of 91-3 yesterday. Sens. Rand Paul (R–Ky.), Ron Wyden (D–Ore.), and Mike Lee (R–Utah) were the only ones who voted against it. (See more of this newsletter's coverage of KOSA here, here, and here.)

• A federal court has dismissed a case brought under the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) against user-generated porn websites that allegedly allowed the publication of videos featuring a teenager. The person bringing the case said the sites were guilty of "receipt" of the videos. But "receipt of materials or content is, as it were, simply the first step in any publishing regime; if so, then mere receipt of illicit material is not sufficient to preclude immunity under Section 230," the court held.

• An expansive definition of "child sex trafficking" is being wielded to suggest that dating websites and apps should check IDs.

• The AI search wars have begun.

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New legislation would repeal parts of the Comstock Act, a Victorian-era law that's being revived to attack abortion pills.

Passed in 1873, the Comstock Act was a big deal in earlier eras, sending people to prison for publishing information about birth control, critiques of marriage, and more.

The law is vague and broad, banning the mailing of any "article, matter, thing, device, or substance" that the government deems "obscene, lewd, lascivious, indecent, filthy or vile," along with anything "designed, adapted, or intended for producing abortion, or for any indecent or immoral use." Essentially, the Comstock Act weaponizes the U.S. Postal Service to give the federal government an in against things that otherwise wouldn't be its business.

"Anthony Comstock, the law's namesake and an anti-smut crusader, lobbied for and personally enforced the law as a special agent of the U.S. Postal Service," noted the Foundation for Individual Rights and Expression (FIRE) lawyer Robert Corn-Revere in a recent piece for Reason about efforts to posthumously pardon publisher D.M. Bennett. "Under the law's broad mandate, everything that Comstock considered immoral was by definition obscene and, therefore, illegal. Comstock's concept of immorality included blasphemy, sensational novels and news stories, art, and even scientific and medical texts." (You can read more about Comstock, "the prodigal censor," here.)

The Comstock Act lay dormant for a while, rendered toothless in part by court interpretations of the First Amendment that were more vigorously protective of free speech. But these days, activists and politicians opposed to abortion are trying to revive the law, seeing its potential usefulness in going after mifepristone and misoprostol, the two-pill regimen approved to end first-trimester pregnancies.

The resurgence of interest in the Comstock Act underscores the need to repeal bad laws, not simply assume them defanged by decades of latency.

The Biden administration certainly isn't going to start prosecuting people under the Comstock Act, but a more conservative future administration could. "[Donald] Trumps' [sic] advisors are…arguing that the Comstock Act is a de facto national abortion ban already on the books," says Madison Roberts, senior policy counsel at the American Civil Liberties Union (ACLU). "They are wrong. The Department of Justice has made clear and federal appeals courts have uniformly held for almost a century that the Comstock Act does not apply to legal abortion care. But anti-abortion extremists have manipulated the law to ban abortion before, and there's no reason to think they won't try it again."

Moreover, the law was cited in a legal challenge to abortion pills and the U.S. Food and Drug Administration's decision to let them be sent via mail. The district judge who first heard the case (and sided with the plaintiffs) wrote that "dispensing of chemical abortion drugs through mail violates unambiguous federal criminal law." That case was shot down by the U.S. Supreme Court last week on procedural grounds, but it certainly won't be the last attempt to stop the prescription and mailing of abortion pills. Nor is it likely to be the last time Comstock is invoked for this purpose—unless the act is revised or repealed.

"It is too dangerous to leave this law on the books," Sen. Tina Smith (D–Minn.) said in a statement.

The Stop Comstock Act, which Smith is slated to introduce soon (no draft has been released yet, however), would repeal the parts of the law "that could be used by an anti-abortion administration to ban the mailing of mifepristone and other drugs used in medication abortions, instruments and equipment used in abortions, and educational material related to sexual health," per Smith's press release. A companion bill will be introduced in the House by Rep. Becca Balint (D–Vt.).

This is good, but not far enough, if it only partially repeals the law.

Why stop with repealing the parts that could be used to target abortion? The Comstock Act's reach is much more broad than that, and every bit could do some damage in the wrong hands.

Here's the full spate of things that the Comstock Act declares criminal to mail:

Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and

Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and

Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and

Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and

Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing.

It's time to repeal the whole thing.

Today, it's only the abortion part of the law that people are trying to revive. But a few years ago, most of us weren't expecting a Comstock revival at all. Who's to say that a few years from now, people won't try to use it against all sorts of information, art, etc. that they don't like?

If we want to stop the Comstock Act from ever again being used to suppress speech, restrict access to contraceptives, punish people for homosexuality, and more, then we need to stop the Comstock Act entirely.

The post The Stop Comstock Act Doesn't Go Far Enough appeared first on Reason.com.

The creators behind BASEDPolitics are suing over a measure meant to either ban TikTok or force its divestiture.

President Joe Biden signed the (highly unconstitutional) bill in April, and it already faces several legal challenges, including one filed by TikTok and one filed by eight TikTok content creators. Like those efforts, the BASEDPolitics suit focuses on the law's affront to free speech.

"We wanted to file a lawsuit that was specifically focused on free speech and the First Amendment from the creators' perspective, rather than some of the other, business-related concerns in other lawsuits," Brad Polumbo of BASEDPolitics tells me. "We also wanted to emphasize the political speech aspect, rather than other creators who are more in the mold of everyday 'influencers,' and show that right-leaning/non-liberal voices are being impacted by this as well."

Polumbo hopes the lawsuit will "help Republicans and conservatives see why this ban is inconsistent with the free speech values they say they care about."

TikTok Ban: Not Just Bad for Lifestyle Influencers or Leftists

BASEDPolitics is a nonprofit media organization run by Polumbo, Hannah Cox, and Jack Hunter. Its goal is to introduce young people "to the ideas of free market capitalism and individual liberty."

TikTok helps them reach audiences they likely wouldn't reach on other platforms, says Cox. "Both Brad and I have large platforms across social media, but TikTok offers a unique audience that can't be found elsewhere," she tells me. "Most on TikTok loathe Meta and X, so if they weren't on TikTok it's unlikely they'd engage meaningfully elsewhere. Their algorithm is also more open, and it enables us to reach many people who would never encounter us otherwise."

There's a popular perception that TikTok either isn't a place for political speech or is an asset only for left-leaning political speakers. But the BASEDPolitics team hasn't found this to be true at all.

"Anyone who thinks TikTok is all just frivolous content is probably not a user," says Polumbo. "There's substantive conversation happening on there on every issue under the sun, from religion to dating to politics." And while "TikTok is dominated by left-leaning content," it's also "a much more politically diverse ecosystem than many might think."

Their suit focuses not just on how a ban would negatively affect BASEDPolitics but on its larger repurcussions for civil liberties.

"We felt the need to stand up as individuals who are using TikTok to effectively fight back against the government and educate others on the principles of free market capitalism, individual rights, and limited government," says Cox, who sees all sorts of "incredible work being done on TikTok—both politically and non politically."

"People are pushing back on war…they're questioning our monetary system, they're highlighting injustices carried out by our government," she says. "Outside of politics, TikTok is now the top search engine for young people. They're getting mental health resources from therapists, DIY help from retired grandpas, nutrition information they can't get from their health insurance and pharmaceutical companies. The list is endless."

Propaganda Is Free Speech

BASEDPolitics is being represented by the Liberty Justice Center. The suit seeks a declaration that the anti-TikTok law—officially known as the Foreign Adversary Controlled Applications Act—is unconstitutional and a block on the U.S. Attorney General enforcing it.

The law makes it illegal for Americans to "access, maintain, or update" apps linked to "foreign adversaries," a category that the measure defines to include TikTok. TikTok will be banned if TikTok parent company ByteDance does not sell it by January 19, 2025. The law also allows the president to declare other apps off limits (or force their sale) if they're based out of any country declared a foreign adversary or if anyone based in these countries owns a fifth or more of the app.

"The Act violates the First Amendment because it bans all speech on TikTok—even though all, or nearly all, of that speech is constitutionally protected," the Liberty Justice Center states in a press release. "The lawsuit also argues that lawmakers' justifications for the ban—national security and protecting Americans from propaganda—cannot justify the infringement on users' First Amendment rights, because there is no evidence that TikTok threatens national security or that a complete ban is necessary to address whatever threat it might pose. Furthermore, the lawsuit argues, the First Amendment does not allow the government to suppress 'propaganda,' which is simply speech."

Cox elaborates on this point in a video about the lawsuit, noting that people act like TikTok is unique because it could be linked to the Chinese Communist Party. Yet "you have tons of state-owned media that is available in the U.S.," points out Cox, citing the BBC and Russia today as two examples.

In the U.S., we don't ban speech merely because another government—even one we find alarming—might endorse it. So even if some of the more speculative fears about China and TikTok are true, that should be no reason to ban it entirely.

Cox says this sort of thing is more befitting of "communist dystopias" such as North Korea.

There's been some (overhyped) concern about TikTok suppressing content that could offend Chinese authorities. But even if that's true, it wouldn't justify a ban either.

"As First Amendment supporters, we also support the legal right of TikTok as a private platform to ban or restrict whatever kinds of content it wants even if we personally resent their choices or think it's unfair," Polumbo adds.

Larger Anti-Speech and Anti-Tech Trends 

"If enacted, this would constitute one of the most egregious acts of censorship in modern American history," Cox and Polumbo write, placing the TikTok ban in the midst of larger anti-speech and anti-tech trends:

In the federal and state governments, both Republicans and Democrats have become increasingly anti-free speech in recent years. We've seen a plethora of bills that have sought to strip Americans and their businesses of their right to free expression, many of them presented as necessary to rein in "Big Tech." The TikTok ban is merely the latest iteration of this trend.

The truth is that government actors who want to preserve and expand their own power have a vital interest in taking over the tech industry. Of course the government has yet to see a thriving free market industry it doesn't want to get its hands on. But social media in particular poses a unique threat to the government—which has for decades been able to control the flow of information and the narrative on political issues via its cozy relationship with many in the mainstream media.

We've seen the Biden Administration seek to lasso social media in a similar fashion numerous times over the past couple of years thanks to the bombshell reports released under both the Twitter Files and the Facebook Files—not to mention the government-wide conspiracy to shadowban information on our own government's funding of the Wuhan lab….

The obvious point is that government officials do not want the American people to be able to freely share information, especially information that makes them look bad.

The bottom line, they suggest, is that "if they can control the flow of information, they can control you."

"Social media poses a unique threat to politicians and the government, and that's because for decades…the government could control the narrative, and they could control the narrative because they mostly control the mainstream media," says Cox in her video. "As social media has grown, they have lost more and more control of the narrative, because they are no longer the gatekeepers, and they don't control the gatekeepers anymore."

"Ultimately the war on Big Tech is a war on free speech and the government desperately trying to regain control of the narrative the [mainstream media] granted them for decades," she tells me.

The BASEDPolitics team also pushes back on the idea that this isn't really a ban because it gives ByteDance the option to sell. "In effect, the legislation is an outright ban on the app, because Bytedance, TikTok's parent company, is likely legally prohibited from selling the TikTok algorithm by China's export control laws," write Cox and Polumbo. "And, TikTok without its algorithm is not really TikTok at all."

You can read their full complaint here.

More Sex & Tech News

• Supreme Court decisions are coming soon—possibly this week—in two major cases concerning abortion. One of these cases prescriptions of the abortion-inducing drug mifepristone amd another concerns a Biden administration declaration regarding abortions as emergency care.

• Kaytlin Bailey and Yasmin Vafa debate whether it's OK to pay for sex.

• Antitrust warriors come for AI: The Federal Trade Commission is subpoenaing Microsoft over its deal with the artificial intelligence startup Inflection. Meanwhile, the Justice Departments "is poised to investigate Nvidia and its leading position in supplying the high-end semiconductors underpinning AI computing," Politico reports.

• "When a new technology arises, it matters greatly whether technocrats align themselves with dynamists or with reactionaries," Virginia Postrel tells Miller's Book Review. "We were lucky in the 1990s that both political parties included people with positive views of the emerging internet, including people with a dynamist understanding of its potential. The opposite is true today. Reactionaries are in ascendance in both parties, and technocrats are listening to them. Plus there are always businesses seeking to use regulation to hinder their competitors. The result is that instead of regarding AI as an exciting potential tool for enhancing human creativity and fostering prosperity, our public discourse tends to frame it as at best a job-destroyer and at worst the Terminator."

• A federal judge has rejected North Carolina's attempt to mandate that abortion pills must be taken in a doctor's office and that their prescription requires an in-person followup visit 72 hours after the medication is taken. The ruling means that women "can again take the medicine mifepristone at home and can obtain the medication from a pharmacy or by mail," WUNC reports.

• "Because 'misinformation' is overwhelmingly identified by focusing on information that contradicts the consensus judgements of experts and elites within society's leading knowledge-generating institutions, the focus on misinformation ignores how such institutions can themselves be deeply dysfunctional and problematic," writes Dan Williams in a very good (and lengthy) post at Conspicuous Cognition. "This includes science, intelligence agencies, mainstream media, and so on."

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Former vice cop Andrew Mitchell has been sentenced to 11 years in prison after pleading guilty late last year to two counts of deprivation of rights under color of law and one count of tampering. Mitchell, who was employed for many years as a police officer in Columbus, Ohio, is accused of picking up sex workers and sexually assaulting them.

This week, a federal judge sentenced him to the maximum prison sentence recommended by prosecutors, plus a fine of $300 and five years of supervised release.

It's something, at least.

But his victims will receive no restitution payment. And last year, Mitchell walked on much more serious charges involving the killing of Donna Castleberry.

 

Castleberry's Death

Mitchell fatally shot the 23-year-old while she was trapped in his unmarked police car. He later claimed he killed Castleberry in self-defense after she stabbed him in the hand.

"Donna entered the front passenger door of Mitchell's vehicle and sat in the passenger seat next to Mitchell," according to a civil complaint against Mitchell filed by Castleberry's sister. "Mitchell than [sic] drove her to secluded location at or near South Yale Avenue, Columbus, Ohio in an alley and parked his vehicle in a manner which would prevent Donna from exiting the vehicle."

The Franklin County Coroner's Office called the death a homicide, and a grand jury indicted Mitchell on homicide and involuntary manslaughter charges. But a jury couldn't reach a verdict in the first trial, leading a Franklin County Common Pleas Court judge to declare a mistrial. And a jury returned a verdict of not guilty in the second trial, despite the multiple holes in Mitchell's story.

Mitchell also faced a civil lawsuit from a Jane Doe who alleged that in 2017, Mitchell told her he would arrest her for outstanding warrants but also said "give that pretty ass up and you won't go to jail." According to Doe's complaint, Mitchell handcuffed her to the backseat of the car and then raped her, then picked her up and did it again the following year. In 2022, the plaintiff in the Jane Doe case dismissed the case and it's not clear why. It's also unclear whether this Jane Doe is one of the women Mitchell is accused of detaining in the federal case.

 

The Federal Case

In 2019, federal prosecutors accused Mitchell of picking up sex workers on false pretenses and then trapping them in his car and sexually assaulting them. He was charged with nine criminal counts, including multiple counts of deprivation of rights under color of law and multiple counts of tampering with a witness, victim, or informant.

Mitchell told one victim "he was a police officer and acted as if he were doing a check for any outstanding warrants on the victim," then "used this ruse to handcuff the victim to the doorknob of his vehicle," according to a press release from the U.S. Attorney's Office last December. "He drove the victim to a nearby parking lot with multiple dumpsters and forcible [sic] held and detained the victim against her will before dropping her off at her boyfriend's residence." Mitchell picked up another victim and "began discussing the victim's rates for sexual activity before announcing that he was an officer with the vice unit and said she was going to jail," according to prosecutors. "Mitchell kidnapped the victim and drove her to Lindbergh Park, holding her against her will."

That's the activity to which Mitchell pleaded guilty, along with removing and destroying potential evidence from a rental apartment he owned. (Specifically, he disposed of and bleached potential evidence "so the FBI could not gather evidence if they came to search it," per his pleas.)

But this isn't the whole story.

Prosecutors initially accused him of sexually assaulting the two women he picked up, and though this was not mentioned as part of the announcement of Mitchell's plea, prosecutors explain why in a sentencing report.

Mitchell's lawyers "objected to all references to sexual assault…within the presentence report as the negotiated plea agreement and accompanying Statement of Facts did not stipulate to the occurrence of any sexual activity," notes the government's sentencing memorandum. "The plea agreement was the result of significant negotiation in the face of a potentially very difficult trial for both sides. While both victims have been cooperative with law enforcement and indicated a willingness to testify, they both also indicated a strong preference for this case to be resolved short of trial. This dilemma led to this resolution and the need for a factual determination of this issue to be done at sentencing."

Nonetheless, "the evidence supports a finding that sexual assaults occurred," the government stated. "While Mitchell continues to deny any sexual involvement with these women, there is no explanation for [his] admitted behavior" of handcuffing one victim to a doorknob or taking one victim to a secluded park and detaining her there unless "more was going on than just Mitchell abusing the powers of his badge to only detain someone. "Further, significant evidence corroborated the testimony of the victims that Mitchell took advantage of the depravation of their liberty to further assault and sexually victimize them."

 

More Victims? 

Castleberry and the two victims in the federal case are almost certainly not the only women that Mitchell preyed on.  "Mitchell intimidated and hindered at least three other additional victims from communicating with law enforcement and the ongoing grand jury looking into his illegal conduct," the government alleges in its sentencing report.

Prosecutors also note the vulnerability sex workers face when a cop is their assailant.

"Mitchell purposely targeted [sex workers] in the belief that their complaints of assault and sexual compromise would not be believed by law enforcement suspected of being too aligned with one of their own," the government claims.

"Throughout the FBI investigation, female interviewees explained their doubts and hesitation in reporting Mitchell due to fears of retaliation and being disbelieved. Mitchell routinely used this dynamic to his advantage as both a police officer (and a landlord) in seeking sexual conquest and control while ignoring the law he was sworn to uphold."

 

Columbus Vice

"Andrew Mitchell betrayed his oath, the values of the Columbus Division of Police and the trust of our community. He used his position to target and exploit some of the most vulnerable in our community. We hope the close of this dark, painful chapter brings some measure of peace to everyone he wronged," the Columbus Division of Police said in a statement last December.

Mitchell isn't the only member of the Columbus Division of Police to have faced misconduct allegations in recent years, though the accusations against him were by far the most serious.

Members of the vice unit improperly arrested Stormy Daniels in 2018.

Two of the cops involved in Daniels' arrest—Steven G. Rosser and Whitney R. Lancaster—were arrested on federal criminal charges unrelated to the Daniels case but also involving strip clubs. Lancaster was acquitted at trial but Rosser was found guilty of conspiracy against rights. Rosser was sentenced to 18 months in federal prison.

Columbus police temporarily disbanded the vice squad in 2019 and had the FBI's public corruption task force look into it.

Police replaced the vice squad with something called the Police and Community Together (PACT) Unit, which was meant to be more transparent and accountable. The PACT page on the city of Columbus website now says "page not found."

These days, "prostitution arrests are made by uniformed PACT officers in marked cruisers," reported Columbus Monthly. "'PACT also has a policy to not trap or block women in their vehicles. If an individual wants out of the vehicle, they let them out,'" former Deputy Police Chief Jennifer Knight told the publication.

The post Cop Who Dodged Sentence for Killing Sex Worker Gets 11 Years for Abducting More Sex Workers appeared first on Reason.com.

The Supreme Court won't intervene to stop an anti-porn law from taking effect in Texas.

The law—H.B. 1181—pertains to websites publishing "sexual material harmful to minors," a category defined to include virtually all depictions of nudity or sexual activity. Sites where more than one-third of the material falls into this category must make visitors provide government-issued identification or verify visitor ages in some other way.

Under H.B. 1181, such platforms must also display a litany of absurd and unscientific messages. These include telling visitors—in 14-point font or larger—that porn can be "biologically addictive," that it's "proven to harm human brain development," and that it "weakens brain function." Such sites must also tell visitors that exposure to porn "is associated with low self-esteem and body image, eating disorders, impaired brain development, and other emotional and mental illnesses," and that "pornography increases the demand for prostitution, child exploitation, and child pornography."

Compelled Speech and Court Rulings

Unsurprisingly, adult-industry trade group the Free Speech Coalition (FSC) and Pornhub's parent company sued over the law. And a day before it was scheduled to take effect last fall, a U.S. district court put a halt to enforcement.

But the U.S. Court of Appeals for the 5th Circuit then reversed course. (And Texas Attorney General Ken Paxton has since started enforcing it.)

The 5th Circuit ultimately kept the lower court's injunction on enforcing the public health warning portion of the law but vacated the injunction against the age verification mandate.

"The district court properly…ruled that H.B. 1181 unconstitutionally compelled plaintiffs' speech," held the 5th Circuit in an opinion authored by Judge Jerry E. Smith. But "the age-verification requirement does not violate the First Amendment….So, the district court erred by enjoining the age-verification requirement."

In April, the Free Speech Coalition asked the Supreme Court to take up the case, and to issue a stay of the 5th Circuit's judgment in the meantime.

Yesterday, the Supreme Court denied the stay request.

"No reason was given. No justices noted their dissent or even issued a statement respecting or concurring with the denial to explain the basis for the action," noted Law Dork's Chris Geidner. "And yet, the silence spoke volumes about the freedom that the Fifth Circuit has to ignore Supreme Court precedent when it wishes."

Ignoring Porn-Law Precedent 

Supreme Court precedent should prohibit the Texas age-verification law, argues Geidner.

In the 2004 ruling Ashcroft v. ACLU (known as Ashcroft II), the Court considered the Child Online Protection Act (COPA), which criminalized websites publishing content "harmful to minors" but provided an affirmative defense for platforms that took steps (like requiring a credit card) to verify that visitors were adults. Applying the legal standard known as strict scrutiny, SCOTUS decided COPA was not narrowly tailored enough to pass constitutional muster.

In the 5th Circuit's recent ruling on the Texas law, Smith noted the Court's Ashcroft decision—but dismissed it. "Though Ashcroft II concluded that COPA would fail strict scrutiny, it contains startling omissions," writes Smith, concluding that the Supreme Court "did not rule on the appropriate tier of scrutiny for COPA."

In other words, the 5th Circuit basically decided the Supreme Court was wrong and so it would ignore its precedent here.

And in declining to issue a stay of the 5th Circuit's ruling, the Supreme Court seems to be OK with this. It's wild.

Of course, this isn't the first time in recent years that the Court has allowed a very constitutionally questionable Texas law to take effect rather than pressing pause as the full case played out. But at least in the other cases, the Court attempted justification.

More from Geidner:

Back in 2021 when the Supreme Court allowed Texas's S.B. 8 vigilante enforcement six-week abortion ban to go into effect, the court twisted itself in knots to claim that the particulars of the law ("complex and novel antecedent procedural questions") made the high court's intervention at that stage in the litigation too questionable.

When the Supreme Court briefly allowed Texas's S.B. 4 immigration criminal enforcement law to go into effect earlier this year, some members of the court claimed procedural peculiarities counseled restraint from the high court to allow the Fifth Circuit to act ("an exercise of its docket management authority," Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh, wrote).

In the current case, however, the high Court didn't offer a reason for its refusal to stay enforcement.

"Likely because a law regulating porn was at issue," writes Geidner, "the Supreme Court decided it didn't even need to put up the pretense of an excuse for allowing the Fifth Circuit to proceed with a ruling that explicitly disclaimed adherence to Supreme Court precedent."

What's Next for H.B. 1181?

There's still a chance that the Supreme Court could step in here. The Free Speech Coalition's petition for a full merits review by the Court is still pending.

"We look forward to continuing this challenge, and others like it, in the federal courts," the Free Speech Coalition commented. "The ruling by the Fifth Circuit remains in direct opposition to decades of Supreme Court precedent, and we remain hopeful that the Supreme Court will grant our petition for certiorari and reaffirm its lengthy line of cases applying strict scrutiny to content-based restrictions on speech like those in the Texas statute we've challenged. We will continue to fight for the right to access the internet without intrusive government oversight."

Meanwhile, Texas has sued Pornhub's parent company and other adult websites, alleging that they are failing to comply with the age verification component of the law.

More Sex & Tech News

• An "abortion trafficking" bill passed by the Tennessee Legislature "harms young people's ability to access the support of those they trust when they need it most and is an unprecedented attack on the First Amendment right to free speech and expression," according to American Civil Liberties Union of Tennessee Policy Director Bryan Davidson.

• A divorce case in Virginia is drudging up a debate about whether embryos can count as "property."

• The U.S. Court of Appeals for the 5th Circuit on Monday heard oral arguments in a case concerning Texas A&M University canceling drag performances."Whether it's a drag show, a political debate, or a Bible study, public university officials cannot silence protected expression based on their personal views," said J.T. Morris, a senior attorney with the Foundation for Individual Rights and Expression (FIRE), in an emailed statement.

• A piece of paper scribbled with "Buy Bitcoin" sold for $1 million in an auction. Christian Langalis—then an intern at the Cato Institute—held the note up behind then-Federal Reserve chair Janet Yellen during a 2017 Congressional hearing.

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Is TikTok's time finally up? On Saturday, the House of Representatives passed a measure that would require a change in the app's ownership or ban it if that doesn't happen.

Called the Protecting Americans from Foreign Adversary Controlled Applications Act, it's essentially the same divestiture-or-ban bill I wrote about in this newsletter back in March, now tucked into a larger bill (H.R. 8038, the insanely named 21st Century Peace through Strength Act) that deals with everything from fentanyl trafficking to Russian sanctions, Iranian petroleum, Hamas, and boatloads of foreign aid.

The most talked-about part of the Protecting Americans from Foreign Adversary Controlled Applications Act would ban TikTok unless it completely breaks ties with its Chinese parent-company, ByteDance, within 270 days.

But the bill goes far beyond TikTok, and could be used to justify a ban on all sorts of popular apps tied to China, Russia, Iran, or any other country that gets deemed a foreign adversary.

Specifically, the bill makes it illegal "to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application." And the bill's definition of "foreign adversary controlled application" is really broad.

It specifically defines TikTok, ByteDance, and subsidiaries or successors thereof as foreign adversary controlled applications.

The definition would also apply to an array of websites, apps, and "augmented or immersive technology" (with a focus on large social media entities), if they are headquartered in, principally based in, or organized under the laws of a foreign adversary country or if any person or entity with at least a 20 percent stake is based there.

And it would grant the president broad power to determine who meets this bill, opening the measure up for all sorts of potential abuse.

There are multiple ways in which this legislation likely violates the Constitution.

The most obvious constitutional problem is the First Amendment. The bill suppresses the free speech rights of Americans who post to TikTok and of those who consume TIkTok content.

It may also amount to a bill of attainder—a law punishing a specific person or entity, without a trial—and those are unconstitutional.

And it may also violate the 5th Amendment, as Sen. Rand Paul (R–Ky.) noted in a Reason article last week.

Paul thinks the Supreme Court "will ultimately rule it unconstitutional because it would violate the First Amendment rights of over 100 million Americans who use TikTok to express themselves," and "rule that the forced sale violates the Fifth Amendment. Under the Constitution, the government cannot take your property without accusing and convicting you of a crime—in short, without due process. Since Americans are part of TikTok's ownership, they will eventually get their day in court."

Paul's point brings up an important—and often overlooked—factor in all of this: No one has produced evidence of any specific legal infractions committed by TikTok, let alone proven such offenses took place. There's a ton of speculation about what TikTok could be doing, but that's it. A lot of people seem sure that TikTok is a tool of the Chinese Communist Party and you're a fool if you think otherwise. And maybe it is! But that still doesn't mean we can simply sanction the company with no due process, as Paul points out.

Speculation about what the app's ties to China mean may be a good reason for certain people to approach TikTok with caution. But they cannot justify legal action against TikTok.

More Sex & Tech News

• The coddling of the American parent: "Jonathan Haidt's new book…blames youth mental health issues on social media in a way that's easy, wrong, and dangerous," Mike Masnick writes in The Daily Beast.

• Colorado activists failed to collect enough signatures to get an anti-abortion constitutional amendment on the state's ballot this fall.

• Laura LeMoon writes about fighting financial discrimination against sex workers.

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The post TikTok Measure Passed by House Is Unconstitutional in Multiple Ways appeared first on Reason.com.

Frozen embryos are "children" under Alabama law, the state's Supreme Court says. Its decision could have major implications for the future of fertility treatments in the state.

Frozen embryos are "unborn children" and "unborn children are 'children,'" Justice Jay Mitchell wrote in the court's main opinion. Only two of nine justices dissented from the holding that an 1872 wrongful death statute applies to the destruction of frozen embryos.

The ruling seems to represent a turn toward judicial activism among members of Alabama's Supreme Court, which for a long time held that the law's text could not justify reading it to include "unborn children"—let alone frozen embryos.

It also portends a creeping Christian conservatism into court decisions, with Alabama Supreme Court Justice Tom Parker citing the Bible in his legal reasoning. In a concurring opinion, Parker justifies prohibitions on murder not by invoking classical liberal principles, like natural rights, but rather on the basis of "Man's creation in God's image" and the "you shall not murder" edict of the Sixth Commandment. "Human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself," Parker writes.

Embryos Destroyed 

The decision stems from suits brought by former patients of the Center for Reproductive Medicine in Mobile, Alabama. These patients—couples James and Emily LePage, William and Caroline Fonde, and Felicia Burdick-Aysenne and Scott Aysenne—had used in vitro fertilization (IVF) to successfully have several children and still had some embryos stored in the Center's "cryogenic nursery." In December 2020, a patient at the Mobile Infirmary Medical Center (which the Center was a part of) entered the cryogenic nursery unauthorized and proceeded to remove and then drop some of their frozen embryos, destroying them.

The couples sued the fertility clinic and the hospital, citing Alabama's Wrongful Death of a Minor Act. This 1872 law lets parents sue for monetary damages "when the death of a minor child is caused by the wrongful act, omission, or negligence of any person."

The LePages and the Fondes brought a joint lawsuit, and a separate suit was filed by the Aysennes. Both suits alleged negligence and the Aysenne suit also alleged wantonness and breach-of-contract.

A trial court granted the Center's motion to dismiss all but the breach-of-contract claim. "The cryopreserved, in vitro embryos involved in this case do not fit within the definition of a 'person'" or "'child,'" the lower court held.

The three couples appealed, and their suits were consolidated for Supreme Court purposes.

No Exceptions for "Extrauterine Children" 

In a first-of-its-kind decision, the Alabama Supreme Court decided that frozen embryos are, indeed, children, rejecting the lower court's dismissal of the couples' wrongful death claims.

In the court's main opinion, Justice Jay Mitchell referred to frozen embryos in turn as "embryonic children" and "extrauterine children."

While the state's Wrongful Death of a Minor statute doesn't explicitly include "unborn children"—let alone "extrauterine children"—in its purview, "the ordinary meaning of 'child' includes children who have not yet been born," asserted Mitchell.

Furthermore, Alabama's Supreme Court "has long held that unborn children are 'children' for purposes of Alabama's that law," he wrote. The central question in this case, said Mitchell, is "whether the Act contains an unwritten exception to that rule for extrauterine children—that is, unborn children who are located outside of a biological uterus at the time they are killed."

The couples in this case raised some truly ridiculous arguments for why such an "exception" shouldn't exist. They argued that a finding that the Wrongful Death of a Minor Act doesn't apply to unborn children (including frozen embryos) would mean partial-birth abortions are legal, since the baby would no longer be in utero but would also not be fully born. They also suggested it would OK murdering hypothetical toddlers entirely gestated in artificial wombs, since such children—no matter how old they got—would not technically have been born.

Amazingly, the majority lent credence to these crazy arguments. They are "weighty concerns," wrote Mitchell, albeit ones that needn't be resolved at this time since "neither the text of the Wrongful Death of a Minor Act nor this Court's precedents exclude extrauterine children from the Act's coverage."

Dissent, Dissent, Dissent

Not all of the justices agreed with the majority's logic, and some offered quite scathing rebukes of it.

For instance, Justice Brady E. Mendheim—who concurred with the result of the main opinion but disagreed with some of its reasoning—doesn't think that it's so clear cut that "child" includes frozen embryos. For one thing, the wrongful death statute in question was written a century before IVF was even a scientific possibility. Furthermore, other parts of Alabama law, including the 2019 Human Life Protection Act, explicitly define an unborn child as a human being in utero.

Justice Will Sellers also rejected the idea that this is an easy and obvious call. "Any sequence of linguistic gymnastics, cannot yield the conclusion that embryos developed through in vitro fertilization were intended by the legislature to be included in the definition of 'person,' much less the definition of 'minor child,'" he wrote. Rather, the inclusion of in utero children in certain statutes was there to allow for punishment of violence perpetrated against pregnant women. "To equate an embryo stored in a specialized freezer with a fetus inside of a mother is engaging in an exercise of result-oriented, intellectual sophistry, which I am unwilling to entertain," Sellers added.

Meanwhile, Justice Greg Cook—who dissented in full from the main opinion—rejects the idea that the 1872 law meant to include fetuses and zygotes in its definition of children, even when they are in utero.

The main opinion suggested that the "leading dictionary of that time defined the word 'child' as 'the immediate progeny of parents' and indicated that this term encompassed children in the womb," notes Cook. But if you look at the full entry in the cited dictionary, it indicates the opposite, saying "the term is applied to infants from their birth."

Furthermore, interpreting the Wrongful Death Act to include unborn children is a recent phenomenon. "There is no doubt that the common law [in 1872] did not consider an unborn infant to be a child capable of being killed for the purpose of civil liability or criminal-homicide liability," wrote Cook. "In fact, for 100 years after the passage of the Wrongful Death Act, our caselaw did not allow a claim for the death of an unborn infant, confirming that the common law in 1872 did not recognize that an unborn infant (much less a frozen embryo) was a 'minor child' who could be killed."

Thus, applying the wrongful death act to the loss of frozen embryos runs counter to the philosophy of originalism (the idea, common among libertarians and conservatives, that laws should be interpreted only as they were originally intended) and closer to the progressive idea of a malleable "living Constitution," suggests Cook. And he's not a fan. "It is not our role to expand the reach of a statute and "breathe life" into it by updating or amending it," Cook writes. If the legislature thinks the law needs expanding, it can do so.

Cook and Mendheim both object to characterizing the defense's position as seeking an "exception" for frozen embryos, because to declare it an exception to the state's protection of minor children assumes that embryos are minor children—a point that's far from a given. And they both pan the tacit acceptance of the out-there hypotheticals offered by the patients.

"The main opinion ignores the fact that it is not now—or for the foreseeable future—scientifically possible to develop a child in an artificial womb so that such a scenario could somehow unfold," writes Mendheim. Should that become possible, "the answer to this futuristic hypothetical is simple," writes Cook: "the Legislature can address future technologies and can do so far better than this Court."

Bibles and Broad Reach

Pointing out that no other state has interpreted wrongful death laws this way—and a number have specifically rejected it—Cook suggests that being "the sole outlier" should "cause us to carefully reexamine our conclusions."

He concludes the decision could end IVF in Alabama, since "no rational medical provider would continue to provide services for creating and maintaining frozen embryos knowing that they must continue to maintain such frozen embryos forever or risk the penalty of a Wrongful Death Act claim for punitive damages."

This fear was echoed by the defendants in this case, who told the court a finding that the statute includes frozen embryos could make IVF prohibitively expensive.

Barbara Collura, president and CEO of RESOLVE: The National Infertility Association, called the court's decision "terrifying" for people "who need in-vitro fertilization to build their families."

Chief Justice Parker's opinion suggests that their fears are not unfounded.

His opinion is chilling in the way is showcases the theocratic underpinnings on which he sees Alabama governance resting. Pointing to a 2018 amendment declaring it "the public policy of this state to recognize and support the sanctity of unborn life," he notes that the term sanctity can be defined as "holiness of life and character," godliness, and "the quality or state of being holy or sacred." He goes on to cite the King James Bible, noting that in Genesis man's creation was described as being "in the image of God." Its on these foundations that the legal treatment of frozen embryos should rest, he suggests.

According to Parker, this would not mean the end of IVF in Alabama. But it could mean changes that would seriously upend the IVF process.

In IVF, the process of preparing the body for ovulation and harvesting eggs can be extremely taxing on women's bodies, as well as time-consuming and expensive. After this, not all of the eggs collected may be successfully fertilized. And when viable embryos are created, it may take multiple tries at transferring one into a woman's body before implantation is successful. For all of these reasons, it makes sense for doctors to collect myriad eggs at one time, fertilize these eggs, and then freeze the viable embryos for later transfer, rather than harvesting eggs and creating a single new embryo for each transfer. (This also helps people who may want to create embryos when they are younger to use when they are somewhat older, or who may face illness that will impede their future fertility.) And to maximize the chances of success, doctors sometimes transfer two or more embryos at once.

Treating embryos as having the full legal rights of children could imperil all of these practices.

In Italy, "cryopreservation of embryos" is banned "except when a bona fide health risk or force majeure prevented the embryos from being transferred immediately after their creation," writes Parker. He also points approvingly to countries with other stringent regulations, such as a rule limiting the number of embryos that can be transferred at a time.

"These regulations adopted by other countries seem much more likely to comport with upholding the sanctity of life," Parker concludes, writing that "certain changes to the IVF industry's current creation and handling of embryos in Alabama will result from this decision."

Even if the ruling doesn't end IVF in Alabama, it could pave the way for changes that make fertility treatments more difficult, time-consuming, expensive, and impractical.

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Is it a crime to learn something by reading a copyrighted book? What if you later summarize that book to a friend or write a description of it online? Of course, these things are perfectly legal when a person does them. But does that change when it's an artificial intelligence system doing the reading, learning, and summarizing?

Sarah Silverman, comedian and author of the book The Bedwetter, seems to think it does. She and several other authors are suing OpenAI, the tech company behind the popular AI chatbot ChatGPT, through which users submit text prompts and receive back AI-generated answers.

Last week, a federal judge largely rejected their claims.

The ruling is certainly good news for OpenAI and for ChatGPT users. It's also good news for the future of AI technology more broadly. AI tools could be completely hamstrung by the expansive vision of copyright law that Silverman and the other authors in this case envision.

The Authors' Complaints and OpenAI's Response

Teaching AI to communicate and "think" like a human takes a lot of text. To this end, OpenAI used a massive dataset of books to train the language models that power its artificial intelligence. ("It is the volume of text used, more than any particular selection of text, that really matters," OpenAI explained in its motion to dismiss.)

Silverman and the others say this violates federal copyright law.

Authors Paul Tremblay and Mona Awad filed a class-action complaint to this effect against OpenAI last June. Silverman and authors Christopher Golden and Richard Kadrey filed a class-action complaint against OpenAI in July. The threesome also filed a similar lawsuit against Meta. In all three cases, the lead lawyer was antitrust attorney Joseph Saveri.

"As with all too many class action lawyers, the goal is generally enriching the class action lawyers, rather than actually stopping any actual wrong," suggested Techdirt Editor in Chief Mike Masnick when the suits were first filed. "Saveri is not a copyright expert, and the lawsuits…show that. There are a ton of assumptions about how Saveri seems to think copyright law works, which is entirely inconsistent with how it actually works."

In both complaints against OpenAI, Saveri claims that copyrighted works—including books by the authors in this suit—"were copied by OpenAI without consent, without credit, and without compensation."

This is a really weird way to characterize how AI training datasets work. Yes, the AI tools "read" the works in question in order to learn, but they don't need to copy the works in question. It's also a weird understanding of copyright infringement—akin to arguing that someone reading a book in order to learn about a subject for a presentation is infringing on the work or that search engines are infringing when they scan webpages to index them.

The authors in these cases also object to ChatGPT spitting out summaries of their books, among other things. "When ChatGPT was prompted to summarize books written by each of the Plaintiffs, it generated very accurate summaries," states the Silverman et al. complaint.

Again, putting this in any other context shows how silly it is. Are book reviewers infringing on the copyrights of the books they review? Is someone who reads a book and tweets about the plot violating copyright law?

It would be different if ChatGPT reproduced copies of books in their entirety or spit out large, verbatim passages from them. But the activity the authors allege in their complaints is not that.

The copyright claims in this case "misconceive the scope of copyright, failing to take into account the limitations and exceptions (including fair use) that properly leave room for innovations like the large language models now at the forefront of artificial intelligence," OpenAI argued in its motion to dismiss some of the claims.

It suggested that the doctrine of fair use—designed in recognition of the fact "that the use of copyrighted materials by innovators in transformative ways does not violate copyright"—applies in this case and the case of "countless artificial intelligence products [that] have been developed by a wide array of technology companies."

The Court Weighs In

The authors prevailing here could seriously hamper the creation of AI language learning models. Fortunately, the court isn't buying a lot of their arguments. In a February 12 ruling, Judge Araceli Martínez-Olguín of the U.S. District Court for the Northern District of California dismissed most of the authors' claims against OpenAI.

This included the claims that OpenAI engaged in "vicarious copyright infringement," that it violated the Digital Millennium Copyright Act (DMCA), and that it was guilty of negligence and unjust enrichment. The judge also partially rejected a claim of unfair competition under California law while allowing the authors to proceed with that claim in part (largely because California's understanding of "unfair competition" here is so broad).

Silverman and the other authors in these cases "have not alleged that the ChatGPT outputs contain direct copies of the copyrighted books," Martínez-Olguín noted. And they "fail to explain what the outputs entail or allege that any particular output is substantially similar – or similar at all — to their books."

The judge also rejected the idea that OpenAI removed or altered copyright management information (as prohibited by Section 1202(b) of the DMCA). "Plaintiffs provide no facts supporting this assertion," wrote Martínez-Olguín. "Indeed, the Complaints include excerpts of ChatGPT outputs that include multiple references to [the authors'] names."

And if OpenAI didn't violate the DMCA, then other claims based on that alleged violation—like that OpenAI distributed works with copyright management information removed or engaged in unlawful or fraudulent business practices—fail too.

More AI/Copyright Battles To Come

This isn't the end of the authors vs. OpenAI debate. The judge did not yet rule on their direct copyright infringement claim because OpenAI did not seek yet to dismiss it. (The company said it will try to resolve that later in the case.)

The judge also will allow the parties to file an amended complaint if they want to.

Given the lameness of their legal arguments, and the judge's dismissal of some of the claims, "it's difficult to see how any of the cases will survive," writes Masnick. (See his post for a more detailed look at the claims involved here and why a judge dismissed them.)

Unfortunately, we're almost certain to keep seeing people sue AI companies—language models, image generators, etc.—on dubious grounds, because America is in the midst of a growing AI tech panic. And every time a new tech panic takes hold, we see people trying to make money and/or a name for themselves by flinging a bunch of flimsy accusations in lawsuit form. We've seen this with social media companies and Section 230, social media and alleged mental health harms to teens, all sorts of popular tech companies and antitrust law.

Now that artificial intelligence is the darling of tech exuberance and hysteria alike, a lot of folks—from bureaucrats at the Federal Trade Commission to enterprising lawyers to all sorts of traditional media creators and purveyors—are seeking to extract money for themselves from these technologies.

"I understand why media companies don't like people training on their documents, but believe that just as humans are allowed to read documents on the open internet, learn from them, and synthesize brand new ideas, AI should be allowed to do so too," commented Andrew Ng, co-founder of Coursera and an adjunct professor at Stanford. "I would like to see training on the public internet covered under fair use—society will be better off this way—though whether it actually is will ultimately be up to legislators and the courts."

Unlike many people who write about technology, I don't foresee major disruptions, good or bad, coming from AI anytime soon. But there are many smaller benefits and efficiencies that AI can bring us—if we can keep people from hampering its development with a maximalist reading of copyright law.

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