If good intentions created good laws, there would be no need for congressional debate.

I have no doubt the authors of this bill genuinely want to protect children, but the bill they've written promises to be a Pandora's box of unintended consequences.

The Kids Online Safety Act, known as KOSA, would impose an unprecedented duty of care on internet platforms to mitigate certain harms associated with mental health, such as anxiety, depression, and eating disorders.

While proponents of the bill claim that the bill is not designed to regulate content, imposing a duty of care on internet platforms associated with mental health can only lead to one outcome: the stifling of First Amendment–protected speech.

Today's children live in a world far different from the one I grew up in and I'm the first in line to tell kids to go outside and "touch grass."

With the internet, today's children have the world at their fingertips. That can be a good thing—just about any question can be answered by finding a scholarly article or how-to video with a simple search.

While doctors' and therapists' offices close at night and on weekends, support groups are available 24 hours a day, 7 days a week, for people who share similar concerns or have had the same health problems. People can connect, share information, and help each other more easily than ever before. That is the beauty of technological progress.

But the world can also be an ugly place. Like any other tool, the internet can be misused, and parents must be vigilant in protecting their kids online.

It is perhaps understandable that those in the Senate might seek a government solution to protect children from any harms that may result from spending too much time on the internet. But before we impose a drastic, first-of-its-kind legal duty on online platforms, we should ensure that the positive aspects of the internet are preserved. That means we have to ensure that First Amendment rights are protected and that these platforms are provided with clear rules so that they can comply with the law.

Unfortunately, this bill fails to do that in almost every respect.

As currently written, the bill is far too vague, and many of its key provisions are completely undefined.

The bill effectively empowers the Federal Trade Commission (FTC) to regulate content that might affect mental health, yet KOSA does not explicitly define the term "mental health disorder." Instead, it references the fifth edition of the Diagnostic and Statistical Manual of Mental Health Disorders…or "the most current successor edition."

Written that way, not only would someone looking at the law not know what the definition is, but even more concerning, the definition could change without any input from Congress whatsoever.

The scope of one of the most expansive pieces of federal tech legislation could drastically change overnight, and Congress may not even realize it until after it already happened. None of the people's representatives should be comfortable with a definition that effectively delegates Congress's legislative authority to an unaccountable third party.

Second, the bill would impose an unprecedented duty of care on internet platforms to mitigate certain harms, such as anxiety, depression, and eating disorders. But the legislation does not define what is considered harmful to minors, and everyone will have a different belief as to what causes harm, much less how online platforms should go about protecting minors from that harm.

The sponsors of this bill will tell you that they have no desire to regulate content. But the requirement that platforms mitigate undefined harms belies the bill's effect to regulate online content. Imposing a "duty of care" on online platforms to mitigate harms associated with mental health can only lead to one outcome: the stifling of constitutionally protected speech.

For example, if an online service uses infinite scrolling to promote Shakespeare's works, or algebra problems, or the history of the Roman Empire, would any lawmaker consider that harmful?

I doubt it. And that is because website design does not cause harm. It is content, not design, that this bill will regulate.

Last year, Harvard Medical School's magazine published a story entitled "Climate Anxiety; The Existential Threat Posed by Climate Change is Deeply Troubling to Many Young People." That article mentioned that among a "cohort of more than 10,000 people between the ages of 16 and 25, 60 percent described themselves as very worried about the climate and nearly half said the anxiety affects their daily functioning."

The world's most well-known climate activist, Greta Thunberg, famously suffers from climate anxiety. Should platforms stop her from seeing climate-related content because of that?

Under this bill, Greta Thunberg would have been considered a minor and she could have been deprived from engaging online in the debates that made her famous.

Anxiety and eating disorders are two of the undefined harms that this bill expects internet platforms to prevent and mitigate. Are those sites going to allow discussion and debate about the climate? Are they even going to allow discussion about a person's story overcoming an eating disorder? No. Instead, they are going to censor themselves, and users, rather than risk liability.

Would pictures of thin models be tolerated, lest it result in eating disorders for people who see them? What about violent images from war? Should we silence discussions about gun rights because it might cause some people anxiety?

What of online discussion of sexuality? Would pro-gay or anti-gay discussion cause anxiety in teenagers?

What about pro-life messaging? Could pro-life discussions cause anxiety in teenage mothers considering abortion?

In truth, this bill opens the door to nearly limitless content regulation, as people can and will argue that almost any piece of content could contribute to some form of mental health disorder.

In addition, financial concerns may cause online forums to eliminate anxiety-inducing content for all users, regardless of age, if the expense of policing teenage users is prohibitive.

This bill does not merely regulate the internet; it threatens to silence important and diverse discussions that are essential to a free society.

And who is empowered to help make these decisions? That task is entrusted to a newly established speech police. This bill would create a Kids Online Safety Council to help the government decide what constitutes harm to minors and what platforms should have to do to address that harm. These are the types of decisions that should be made by parents and families, not unelected bureaucrats serving as a Censorship Committee.

Those are not the only deficiencies of this bill. The bill seeks to protect minors from beer and gambling ads on certain online platforms, such as Facebook or Hulu. But if those same minors watch the Super Bowl or the PGA tour on TV, they would see those exact same ads.

Does that make any sense? Should we prevent online platforms from showing kids the same content they can and do see on TV every day? Should sports viewership be effectively relegated to the pre-internet age?

And even if it were possible to shield minors from every piece of content that might cause anxiety, depression, or eating disorders, that is still not enough to comply with the KOSA. That is because KOSA requires websites to treat differently individuals that the platform knows or should know are minors.

That means that media platforms who earnestly try to comply with the law could be punished because the government thinks it "should" have known a user was a minor.

This bill, then, does not just apply to minors. A should-have-known standard means that KOSA is an internet-wide regulation, which effectively means that the only way to comply with the law is for platforms to verify ages.

So adults and minors alike better get comfortable with providing a form of ID every time they go online. This knowledge standard destroys the notion of internet privacy.

I've raised several questions about this bill. But no one, not even the sponsors of the legislation, can answer those questions honestly, because they do not know the answer. They do not know how overzealous regulators or state attorneys general will enforce the provisions in this bill. They do not know what rules the FTC may come up with to enforce its provisions.

The inability to answer those questions is the result of several vague provisions of this bill, and once enacted into law, those questions will not be answered by the elected representatives in Congress, they will be answered by bureaucrats who are likely to empower themselves at the expense of our First Amendment rights.

There are good reasons to think that the courts will strike down this bill. They would have a host of reasons to do so. Vagueness pervades this bill. The most meaningful terms are undefined, making compliance with the bill nearly impossible. Even if we discount the many and obvious First Amendment violations inherent in this bill, the courts will likely find this bill void for vagueness.

But we should not rely on the courts to save America from this poorly drafted bill. The Senate should have rejected KOSA and forced the sponsors to at least provide greater clarity in their bill. The Senate, however, was dedicated to passing a KOSA despite its deficiencies.

KOSA contains too many flaws for any one amendment to fix the legislation entirely. But the Senate should have tackled the most glaring problem with KOSA—that it will silence political, social, and religious speech.

My amendment merely stated that no regulations made under KOSA shall apply to political, social, or religious speech. My amendment was intended to address the legitimate concern that this bill threatens free speech online. If the supporters of this legislation really do want to leave content alone, they would have welcomed and supported my amendment to protect political, social, and religious speech.

But that is not what happened. The sponsors of the bill blocked my amendment from consideration and the Senate was prohibited from taking a vote to protect speech.

That should be a lesson about KOSA. The sponsors did not just silence debate in the Senate. Their bill will silence the American people.

KOSA is a Trojan horse. It purports to protect our children by claiming limitless ability to regulate speech and depriving them of the benefits of the internet, which include engaging with like-minded individuals, expressing themselves freely, as well as participating in debates among others with different opinions.

Opposition to this bill is bipartisan, from advocates on the right to the left.

A pro-life organization, Students for Life Action, commented on KOSA, stating, "Once again, a piece of federal legislation with broad powers and vague definitions threatens pro-life speech…those targeted by a weaponized federal government will almost always include pro-life Americans, defending mothers and their children—born and preborn."

Student for Life Action concluded its statement by stating: "Already the pro-life generation faces discrimination, de-platforming, and short and long term bans on social media on the whims of others. Students for Life Action calls for a No vote on KOSA to prevent viewpoint discrimination from becoming federal policy at the FTC."

The ACLU brought more than 300 high school students to Capitol Hill to urge Congress to vote no on KOSA because, to quote the ACLU, "it would give the government the power to decide what content is dangerous to young people, enabling censorship and endangering access to important resources, like gender identity support, mental health materials, and reproductive healthcare."

Government mandates and censorship will not protect children online. The internet may pose new problems, but there is an age-old solution to this issue. Free minds and parental guidance are the best means to protect our children online.

The post Censoring the Internet Won't Protect Kids appeared first on Reason.com.

Each year, the Edmondson Community Organization (ECO)—a nonprofit in Baltimore dedicated to revitalizing the city's Midtown-Edmondson area—reviews an obscure list of properties released by the government. The task is to see how many are situated within the organization's neighborhood boundaries. The fewer, the better.

The owners of the properties that do appear have fallen behind on their property taxes and, as a result, are poised to lose their real estate in an annual tax sale conducted by the government. After poring over the list, the ECO knocks on those doors to deliver the queasy news and alert the occupants to what is about to happen.

The issue is one ECO knows intimately. A few years back, the organization accrued a $2,543 property tax debt on its community center. So in 2018, the city sold that lien for $5,115 to a California-based investor, who then foreclosed on and sold the ECO's building for $139,500. In return, the ECO got a check for the difference between its debt and the lien purchase price: $2,572.

In other words, all told, the organization paid six figures to compensate for the $2,543 it owed the government, in what a new federal lawsuit alleges is a pervasive practice in Baltimore that illegally deprives people of their equity in violation of the Fifth Amendment's Taking Clause as the city attempts to satisfy modest tax debts.

Every spring, Baltimore bureaucrats conduct a mass auction online to sell off liens like the ECO's. Sometimes the unlucky debtors have fallen just hundreds of dollars behind on their taxes.

For that, they may lose their property and the vast majority of equity tied up in it. Following an investor's purchase, an owner has a certain period to satisfy the amount of the lien, along with interest and fees, to keep their property. That's a tall order when considering these parties were struggling to pay the original debt, much less the new total, which has since ballooned. In the case that debtors are unsuccessful, the investor has effectively purchased the property for the amount they paid for the lien.

In the ECO's case, that meant an investor bought their building for about 2,600 percent less than what it ultimately sold for. The ECO, in turn, was left with a fraction of what their property was worth.

That Baltimore's process robs property owners of huge chunks of equity is not just a regrettable side effect, the ECO's lawsuit alleges; it's baked into the nature of the city's approach. "The City understands there that there is a finite pot of investor capital available to purchase all the liens," reads the complaint. "This creates a perverse incentive for the City to minimize the winning bids"—a.k.a. to depress prices—"to spread that finite pot across the highest number of liens." 

Some of the moving parts of Baltimore's approach do seem to imply that the government is not merely unconcerned with owners retaining some of their equity but that they are actively seeking to keep bids low. The more glaring examples included in the ECO's suit show that the city charges a high-bid premium that punishes investors making offers above a certain threshold and opts to fulfill the law's advertising requirement in part by listing properties in The Daily Record, a business and legal newspaper that is not targeted at the general community. (The ECO says this violates state law, which stipulates that such a sale must be advertised twice in general-circulation newspapers.)

"There's a limited amount of investor money out there," says Maryland Legal Aid's chief legal and advocacy director Somil Trivedi, who is representing the ECO, "and the city has structured a system to spread that money across as many liens as possible instead of getting as much equity back for their citizens."

The ECO is not alone, according to the suit, but is one of many victims. You don't have to travel far to find others. "In the same tax sale in which a bidder purchased a lien on ECO's building, 68 properties in Midtown-Edmondson were also subject to the tax sale," states its complaint. "The winning bids on those properties totaled only 22% of the assessed value of the properties—a dramatic loss of generational wealth for the owner of each Midtown-Edmondson property that was lost in the sale."

Home equity theft, as it's sometimes called, was once an obscure issue limited to discussion in magazines like this one. But last year it took the national stage when the Supreme Court ruled unanimously in Tyler v. Hennepin County that a local government had violated the Constitution when it seized an elderly woman's condo over a modest tax debt, sold it, and kept the profit. Geraldine Tyler, the plaintiff in that suit, had fallen $2,300 behind on her taxes, which ultimately reached $15,000 after Hennepin County tacked on penalties, interest, and fees. The government then sold the condo for $40,000 and kept the additional $25,000.

While the ECO's situation isn't entirely analogous to Tyler's—the organization was paid something—Baltimore's scheme could still very well be unconstitutional, says Christina M. Martin, a senior attorney at Pacific Legal Foundation who represented Tyler before the Supreme Court. "If the procedure that you're using to sell the property is designed in a totally unreasonable manner, then obviously people are going to still get robbed of more than what they owe," she tells me. "There's a longstanding history of courts overturning sales that have a shocking result like [the ECO's]."

Tyler, in theory, should have put an end to stories like these. But the lawsuit out of Baltimore comes as some other jurisdictions have devised creative ways to comply with the law on its face but not really in practice. After Michigan's Supreme Court ruled the practice unconstitutional, for example, the state passed a convoluted debt collection statute that requires owners to complete a Herculean legal obstacle course to reclaim their equity. It is a difficult course to win.

"It is the government's choice in the first place to collect property taxes, to decide what regime they want to use to enforce the collection of those property taxes, and so it can't then complain that the regime that it chose to engage in for an amount of money that it chooses to collect is then too difficult to do constitutionally," says Trivedi. "There are lots of jurisdictions around the country that do it differently. Some don't even have tax sales. Some have much longer periods of negotiation and payment plans….Municipalities around the country have figured out ways to collect taxes without doing it unconstitutionally."

The post Baltimore's Tax Sales Are Robbing People of Their Equity appeared first on Reason.com.

The Fourth Amendment's protection against unreasonable searches and seizures extends to the length of a seizure, a federal court ruled last week, significantly restricting how long law enforcement can retain private property after an arrest.

"When the government seizes property incident to a lawful arrest, the Fourth Amendment requires that any continued possession of the property must be reasonable," wrote Judge Gregory Katsas of the U.S. Court of Appeals for the District of Columbia in a unanimous ruling.

Most courts of appeal to pass judgment on the issue—namely, the 1st, 2nd, 6th, 7th, and 11th circuits—have held that, once an item is seized, law enforcement can retain the item indefinitely without violating the Fourth Amendment. These precedents have allowed police to retain personal property without clear legal grounds, effectively stripping people of their property rights merely because they were arrested. The D.C. Court of Appeals' ruling complicates this general consensus.

Though law enforcement does not have to return property "instantaneously," Katsas wrote, the Fourth Amendment requires that any "continuing retention of seized property" be reasonable. So while police can use seized items for "legitimate law-enforcement purposes," such as for evidence at trial, and are permitted some delay for "matching a person with his effects," prolonged seizures serving no important function can implicate the Fourth Amendment, the court ruled.

Given that the D.C. court finds itself in the minority on the question, some say that the case may be primed for the Supreme Court if the District chooses to appeal. "This case has potential to make national precedent," Paul Belonick, a professor at the University of California, San Francisco law school, tells Reason. "The influential D.C. Circuit deliberately intensified a circuit split and put itself in the minority of circuits on the question, teeing it up cleanly for certiorari."

The plaintiffs each had their property seized by D.C.'s Metropolitan Police Department (MPD). Five of the plaintiffs were arrested during a Black Lives Matter protest in the Adams Morgan neighborhood of D.C. on August 13, 2020.

As they were arrested, MPD officers seized their phones and other items. Though the protesters did not face any charges and were, in Katsas' words, "quickly released," MPD retained their phones for around a year. Some of the plaintiffs had to wait over 14 months to get their property back.

In the meantime, the plaintiffs say that they were forced to replace their phones and lost access to the important information on the originals, including personal files, contacts, and passwords. "The plaintiffs have alleged that the seizures at issue, though lawful at their inception, later came to unreasonably interfere with their protected possessory interests in their own property," Katsas explained.

"MPD is aware of the ruling and will continue to work with our partners at the United States Attorney's Office to ensure that our members are trained appropriately to ensure compliance with recent rulings," a spokesperson for MPD tells Reason.

"Practically, this case is important because police have been exploiting a gap in the Fourth Amendment," Andrew Ferguson, a professor at American University's Washington College of Law, tells Reason. "In situations where there is a lawful arrest, but no prosecution, there are no clear rules on retaining personal property. In these cases, police have been confiscating phones to punish protestors."

Michael Perloff, the lead attorney for the plaintiffs, agreed that the D.C. Circuit's decision could set an important precedent going forward. "Nationally, we've seen litigants attempt to challenge similar practices only to fail because the court concluded that the Fourth Amendment does not limit the duration of a seizure," he tells Reason. "Moving forward, we are hopeful that the D.C. Circuit's opinion will lead courts to reconsider those rulings and, instead, enforce the Fourth Amendment as fully as the framers intended."

The post Police Cannot Seize Property Indefinitely After an Arrest, Federal Court Rules appeared first on Reason.com.

Update: About 14 hours after Rittenhouse shared his video explaining his support for Ron Paul, declaring that "you must stand by your principles," he announced that he spoke "with members of the Trump's [sic] team" and that he is now "100% behind Donald Trump."

"A lot of people are upset that I said I'm going to be writing in Ron Paul for president of the United States, and that is true. I will be writing in Ron Paul." So said Kyle Rittenhouse in a recent video posted to X. A lot of people, it appears, are indeed upset. Should they be?

Rittenhouse catapulted to national attention in 2020 when, at age 17, he armed himself, traveled to Kenosha, Wisconsin, during a night of riots and civil unrest, and shot three men, killing two. It was always Rittenhouse's contention that he'd acted in self-defense, and his arrest galvanized many in the conservative movement who said the prosecution was motivated not by justice but by the political moment. Supporters helped raise $2 million for Rittenhouse's bail, and he ultimately attracted the attention of former President Donald Trump, who defended him while in office and who hosted Rittenhouse at Mar-a-Lago after leaving the White House.

So one of the primary reactions to Rittenhouse's choice for president is that he's guilty of betrayal. Trump and the MAGA movement had his back when his life took its most dire turn, the thinking goes, so Rittenhouse owes them his loyalty at the ballot box. That general sentiment is summed up aptly by the one-and-only Catturd: "I can stomach a lot of things—but backstabbing millions who supported you at your lowest point. Then turning on Trump right after he got shot," he said in a viral post. "Can't stomach it—won't put up with it—forgotten forever."

In other words, Rittenhouse is allegedly in debt to Trump and his followers for supporting his claims of innocence. He was acquitted in 2021 of all charges, including first-degree reckless homicide, two counts of first-degree recklessly endangering safety, first-degree intentional homicide, and attempted first-degree intentional homicide. That was the right decision. And it was the one the jury came to because that is what the evidence clearly supported. The right to self-defense is not selectively available to people with certain views. Rittenhouse owes no one a thing for not getting convicted of charges that prosecutors should not have brought to begin with.

So why did Trump fail to gain Rittenhouse's support? "Unfortunately, Donald Trump had bad advisers making him bad on the Second Amendment, and that is my issue," he said in his video. "If you cannot be completely uncompromisable on the Second Amendment, I will not vote for you." Trump's record includes a bump stock ban, which Reason's Jacob Sullum noted turned "peaceful gun owners into felons by fiat," and his support for red flag laws. Those moves may not be deal-breakers for many people, including other staunch supporters of the Second Amendment. They apparently are for Rittenhouse. It's his one vote, and he can do with it what he wants.

Yet his announcement also elicited what has become the predictable response, on both the left and the right, to similar defections from the mainstream: You're helping elect the other guy. For one, that vastly overstates the power of a vote—an unpopular thing to say, sure, but true nonetheless. And it's particularly true for Rittenhouse, who lives in the Dallas–Fort Worth area; if he's casting his vote there, I'm going to go out on a limb and assume it will not derail Trump's electoral victory in Texas, which is almost assured.

But even if it were true that Rittenhouse's vote would have some sort of Earth-shattering effect on the outcome of the 2024 election, a vote is earned. It's an expression of support. If neither mainstream option can produce a platform that is sufficiently palatable to someone, they certainly have the prerogative to make that known—by supporting someone else or, gasp, not voting altogether.

After all, no one is entitled to your vote. They're not entitled to it simply because they're a member of a particular political party, and they're not entitled to it for supposedly being less bad than the other side. And they're certainly not entitled to it just because they said supportive things about you in a time of need.

The post Nobody Owes Trump Their Vote. Not Even Kyle Rittenhouse. appeared first on Reason.com.

After black-clad demonstrators protested Donald Trump's inauguration in an "Anti-Capitalist/Anti-Fascist Bloc" march on January 20, 2017, federal prosecutors in Washington, D.C., charged more than 200 of them with rioting. While 21 defendants pleaded guilty, all of the other cases ended in acquittals, mistrials, or charges dismissed with prejudice. One reason for that fiasco, according to recently filed disciplinary charges, was the discovery that the federal prosecutor who oversaw the cases persistently withheld exculpatory evidence and repeatedly lied about it to judges and defense attorneys.

In a "specification of charges" filed with the D.C. Court of Appeals Board of Professional Responsibility last month, Disciplinary Counsel Hamilton P. Fox III alleges that Jennifer Kerkhoff Muyskens, who is now a federal prosecutor in Utah but previously worked at the U.S. Attorney's Office for the District of Columbia, violated six rules of professional conduct while trying to convict "DisruptJ20" protesters, including many who had not participated in vandalism or violence. Muyskens "knew that most defendants did not commit violent acts themselves," Fox notes, but "she argued that these defendants were still liable for felony rioting and felony property destruction because they joined a criminal conspiracy to use the protest march to further the violence and destruction that occurred."

To support that theory, Muyskens presented video of a DisruptJ20 planning meeting that had been clandestinely recorded by an "operative" from Project Veritas, a conservative group that frequently has been accused of using misleadingly edited videos to portray progressive and leftist organizations in a negative light. Although Muyskens "understood Project Veritas had a reputation for editing videos in a misleading way," Fox says, she initially concealed the source of the video, saying in court that "who provided it is irrelevant." And although Muyskens "knew that Project Veritas had omitted and edited some of its videos" before releasing them, Fox adds, she "did not request or obtain Project Veritas's missing videos or unedited footage."

According to Fox, Muyskens and Metropolitan Police Department (MPD) Detective Greggory Pemberton edited the meeting footage in ways that bolstered the prosecution's case, and Muyskens covered up the extent of those edits. Fox says Muyskens also withheld Project Veritas videos of other DisruptJ20 meetings that would have been helpful to the defense, pretending that they did not exist. And she allegedly concealed the fact that Pemberton, in testimony to a grand jury, had erroneously identified one of the DisruptJ20 defendants as a woman who appears in the video of the planning meeting.

According to the Supreme Court's 1963 ruling in Brady v. Maryland, due process requires prosecutors to share potentially exculpatory evidence with the defense. Fox says Muyskens violated that rule by excising footage and withholding videos that could have been useful in rebutting the prosecution's case.

The material that Muyskens and Pemberton excised from the planning meeting video included footage that would have revealed its provenance. They also cut footage of a phone call in which a Project Veritas infiltrator told a colleague, "I don't think they know anything about the upper echelon stuff."

The excised footage "revealed that the video was filmed as part of Project Veritas's infiltration of DisruptJ20, which tended to undermine the credibility and reliability of the government's evidence," Fox writes. "In addition, the operative's post-meeting report indicated that some DisruptJ20 protest organizers did not know anything about plans or decisions that were being made by an 'upper echelon.' This lack of knowledge supported the non-violent defendants' theory that, assuming a plan to riot existed at all, only a small group was involved, which they knew nothing about. Alternatively, if the operative was discussing protest organizers being unaware of Project Veritas's 'upper echelon' plans, the statements supported…claims that Project Veritas conspired to frame DisruptJ20 defendants for third-party violence, including by possibly inciting violence themselves. Both judges who later considered the issue…found that the complete, unedited footage was exculpatory."

The videos that Muyskens withheld included evidence that, contrary to the prosecution's narrative, the DisruptJ20 protest was supposed to be peaceful. Those videos "were exculpatory," Fox explains, "because they showed that DisruptJ20 planning meetings consistently involved training and instructing protesters how to participate in its unpermitted 'Actions,' including the anti-capitalist march, as non-violent protests, using nonviolence and de-escalation techniques, which supported the non-violent defendants' claim that their intent was merely to peacefully protest."

The undisclosed videos also "showed Project Veritas operatives discussing their infiltration operation of DisruptJ20, which supported the defense's theory that Project Veritas conspired to blame DisruptJ20 for others' misconduct," Fox notes. "For example, the undisclosed videos showed Project Veritas operatives discussing—before the Inauguration protests—how they were providing information on DisruptJ20 to the FBI, how there was likely to be violence from 'outside influencers,' and how DisruptJ20 would 'catch the blame' for outsiders' misconduct because the FBI was 'going to say' that they incited it."

In court, Fox says, Muyskens "falsely said that the government had made only two edits, which were both to redact the identity of the videographer and an undercover officer," and "that, other than the two redactions, the defense had the same videos as the government." She "falsely told the court that she had provided defense counsel with 'the full entirety of those videos from that day.'"

According to Fox, "Pemberton testified falsely that Project Veritas had produced only the four disclosed video segments of the [planning meeting video]" and that "the only editing the government did was to combine the first three video segments into one exhibit to be played at trial." Muyskens and Pemberton "did not disclose how they had edited the original videos they received from Project Veritas," and they did not "disclose that they had omitted from discovery many other videos Project Veritas videos of DisruptJ20's planning meetings."

Muyskens told a judge that Project Veritas had "provided unedited video" at Pemberton's request and that "we posted the video" to the discovery portal. Those statements, Fox says, "were false and misleading." Muyskens also "falsely said that other than redacting the identities of the Project Veritas operative and [the undercover officer], 'the defense has the exact video we have.'" The judge "later found that [Muyskens] 'left a clear impression' that she had disclosed everything that Project Veritas had produced."

Muyskens told another judge that "the government had 'provided the clips as we have them'" and that "'the only editing' by the government 'was to combine the three clips' of the anti-capitalist 'breakout' into a single video exhibit for trial." Those statements also "were false and misleading," Fox says.

Muyskens eventually "acknowledged that the government had additional, undisclosed Project Veritas videos of DisruptJ20's planning meetings." But she "mischaracterized them and falsely suggested that they were irrelevant."

During the investigation of her conduct, Fox says, Muyskens "repeated her false statements and material omissions" regarding the video edits, the withheld videos, her suppression of "relevant information and evidence," her failure to produce grand jury transcripts from the misidentified defendant's case, her "misrepresentations and omissions to the grand jury, the defense, and the court," and her failure to "correct known misrepresentations to the court." She also "made additional false statements and material omissions to falsely explain her conduct." She claimed, for example, that the undisclosed videos "were irrelevant and did not discuss the anti-capitalist march."

Fox says Muyskens' actions violated the District of Columbia's Rules of Professional Conduct in half a dozen ways:

1. She allegedly violated Rule 3.3(a) by "knowingly making false statements, offering false evidence, and failing to correct material false statements to the court."

2. She allegedly violated three sections of Rule 3.4 by "obstructing the defense's access to evidence and altering or concealing evidence, or assisting another person to do so when she reasonably should have known that the evidence was or may have been subject to discovery; knowingly disobeying the court's direct orders to produce information in the government's possession without openly asserting that no valid obligation existed; and/or failing to make reasonably diligent efforts to comply with the defense's discovery requests."

3. She allegedly violated two sections of Rule 3.8 by "intentionally avoiding pursuit of evidence and information because it may have damaged the prosecution's case or aided the defense; and by intentionally failing to disclose to the defense, upon request and at a time when use by the defense was reasonably feasible, evidence and information that she knew or reasonably should have known tended to negate the guilt of the accused or mitigate the offense."

4. She allegedly violated Rule 8.4(a) by "knowingly assisting or inducing another to violate the Rules of Professional Conduct and/or doing so through the acts of another."

5. She allegedly violated Rule 8.4(c) by "engaging in conduct that involved reckless or intentional dishonesty, misrepresentations, deceit, and fraud, which misled the grand jury, the defense, the court, the government, and disciplinary authorities about the
evidence in the government's possession and the government's conduct."

6. She allegedly violated Rule 8.4(d) by "engaging in conduct that seriously interfered with the administration of justice."

Possible sanctions against Muyskens range from "temporary suspension of her law license to full disbarment," Washington City Paper notes. The Washington Post reports that lawyers for Muyskens did not respond to requests for comment and that "Pemberton also did not respond to an inquiry." The U.S. attorney's offices in D.C. and Utah "declined to comment." So did the MPD, which "would not say whether the department has opened an investigation of Pemberton, who now chairs the police labor union."

The failed prosecutions and the disciplinary charges against Muyskens are not the only embarrassments stemming from the Inauguration Day march. In 2021, the Post notes, "the D.C. government agreed to pay $1.6 million to settle two lawsuits" by protesters who argued that the police response to the DisruptJ20 march violated their First Amendment rights.

"It speaks volumes that the District has chosen to settle rather than defend MPD's obviously unconstitutional actions in court," Jeffrey Light, one of the protesters' attorneys, said when the settlement was announced. Scott Michelman, legal director at the American Civil Liberties Union of the District of Columbia, added that "MPD's unconstitutional guilt-by-association policing and excessive force, including the use of chemical weapons, not only injured our clients physically but also chilled their speech and the speech of countless others who wished to exercise their First Amendment rights but feared an unwarranted assault by D.C. police."

The post Prosecutor of Anti-Trump Protesters Allegedly Withheld Exculpatory Evidence and Lied About It appeared first on Reason.com.

This week, a federal judge ruled that a major provision of New Jersey's "assault weapon" ban is unconstitutional, but he was not happy about saying so. The decision illustrates how the Supreme Court's Second Amendment precedents have constrained the discretion of judges who are personally inclined to support gun control.

New Jersey's Assault Firearms Law—which the state Legislature approved in 1990, responding to a mass shooting at a Stockton, California, elementary school the previous year—bans a list of specific rifle models, along with "any firearm manufactured under any designation which is substantially identical to any of the firearms listed above." According to guidelines that New Jersey Attorney General Peter Verniero issued in 1996, the latter description encompasses semi-automatic rifles that accept detachable magazines and have at least two of five features: a folding or telescoping stock, a pistol grip, a bayonet mount, a flash suppressor or threaded barrel designed to accommodate one, or a grenade launcher. Illegal possession of "assault firearms" is a second-degree crime punishable by five to 10 years in prison and a maximum fine of $150,000.

In separate lawsuits that U.S. District Judge Peter Sheridan considered together, several gun owners and two gun rights groups, the Firearms Policy Coalition (FPC) and the Association of New Jersey Rifle and Pistol Clubs (ANJRPC), argued that the rifle ban is unconstitutional. Sheridan's decision in ANJRPC v. Platkin focuses on the Colt AR-15, one of the specifically banned rifles, because it was the model mentioned most frequently by the plaintiffs and the state.

"The information presented to the Court focuses largely on one specific type of firearm: the AR-15," Sheridan writes. "And given the variety of firearms regulated in the Assault Firearms Law and the nuances that each individual firearm presents, the Court's analysis of the Assault Firearms Law is limited to the firearm with which the Court has been provided the most information: the AR-15."

Sheridan, a senior judge who was appointed to the U.S. District Court for the District of New Jersey by George W. Bush in 2005, repeatedly refers specifically to "the Colt AR-15." But he also notes that "the AR-15 is produced by several different manufacturers," including FN, Ruger, Remington, Bushmaster, Rock River Arms, Wilson Combat, Barrett, Panther Arms, H&K, Lewis Machine, Olympic Arms, Palmetto State Armory, and Mossberg. So his conclusion that "the AR-15 Provision is unconstitutional" evidently applies to all AR-15-style rifles, regardless of who makes them or what they are officially called.

Before explaining his reasoning in reaching that conclusion, Sheridan expresses his dismay at the Supreme Court precedents he is required to follow. "It is hard to accept the Supreme Court's pronouncements that certain firearms policy choices are 'off the table' when frequently, radical individuals possess and use these same firearms for evil purposes," he says. "Even so, the Court's decision today is dictated by one of the most elementary legal principles within our legal system: stare decisis. That is, where the Supreme Court has set forth the law of our Nation, as a lower court, I am bound to follow it. This principle—combined with the reckless inaction of our governmental leaders to address the mass shooting tragedy afflicting our Nation—necessitates the Court's decision."

Despite his personal policy preferences, Sheridan thinks it is clear that the AR-15 qualifies as a weapon "in common use" for "lawful purposes like self-defense"—the sort of arms that the Supreme Court has said are covered by the Second Amendment. He notes a 2022 estimate that Americans owned about 24 million "AR-15s and similar sporting rifles," and he highlights testimony that such guns are useful for home defense.

"Plaintiffs have shown that AR-15s are well-adapted for self-defense," Sheridan writes. "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.'" He adds 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 notes that "the AR-15 has been used recently in several, relatively high-profile self-defense events in Florida, Illinois, Texas, Pennsylvania, and Oklahoma."

Those points should be disregarded, the state argued, because handguns are a more popular choice for self-defense and one that New Jersey allows. But as Sheridan notes, the Supreme Court's decision in the landmark 2008 case District of Columbia v. Heller, which overturned a local handgun ban, explicitly rejected that sort of argument. "It is no answer to say…that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed," Justice Antonin Scalia wrote in the majority opinion. "It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon."

Like the law at issue in Heller, "the Assault Firearms Law's AR-15 Provision acts effectively as the total prohibition on a commonly used firearm for self-defense—AR-15s—within the home," Sheridan writes. And under Heller, "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," Sheridan says, "the AR-15 Provision of the Assault Firearms Law is unconstitutional" as applied to "the Colt AR-15 for use for self-defense in the home."

Sheridan reached a different conclusion regarding another provision of New Jersey's Assault Firearms Law that the plaintiffs also challenged: the ban on "large capacity magazines" (LCMs). Legislators originally defined LCMs as magazines that hold more than 15 rounds but reduced the limit to 10 rounds in 2018. That restriction, Sheridan says, is "consistent with this Nation's historical tradition of firearm regulation"—the test established by the Supreme Court's 2022 ruling in New York State Rifle & Pistol Association v. Bruen.

Sheridan acknowledges that the U.S. Court of Appeals for the 3rd Circuit, which includes New Jersey, has recognized ammunition as "arms" within the meaning of the Second Amendment. But he thinks the LCM ban differs from the AR-15 ban in a crucial way.

"The LCM Amendment passes constitutional muster because although the Second Amendment right is implicated, this regulation is in line with the historical regulations within the tradition of our Nation," Sheridan writes. "Put more precisely, the reduction of capacity is a limitation on firearms ownership. It is not a categorical ban preventing law-abiding citizens from exercising their Second Amendment rights [with] a weapon that is in common use for self-defense."

Sheridan notes that "detachable magazines did not exist in the Founding period" and that "it was not until the mid-l800s that patents for magazines falling within the definition of the LCM Amendment began appearing in the historical record." While "rifles capable of holding more than ten rounds became available" in the 1860s, he adds, "the magazine was fixed." And "despite the issuance of a patent for detachable magazines in 1864, firearms with detachable magazines were not widely available until the end of the Nineteenth Century."

Magazines that could hold more than 10 rounds, Sheridan notes, "did not exist in 1791," when the Second Amendment was ratified, and "were not widely available in 1868," when the 14th Amendment required states to respect the right to arms. He says it therefore would be plainly unreasonable to demand that New Jersey "locate a statute or regulation from that time" that closely resembles its LCM ban.

In Bruen, Sheridan writes, the Supreme Court "noted that current regulations may implicate either 'unprecedented societal concerns' or 'dramatic technological changes' different from those that existed when the Second Amendment was ratified in 1791 or when the Fourteenth Amendment was ratified in 1868. In those circumstances, 'a more nuanced approach' to determine if historical regulations are 'relevantly similar' to the currently challenged regulations must be utilized based on two measurements: 'how and why the regulations burden a law-abiding citizen's right to armed self-defense.'"

Sheridan thinks the LCM ban's "how" is "relevantly similar" to the scope of historical restrictions on pistols and Bowie knives. "The LCM Amendment places a burden on self-defense that is comparable to the burden imposed by the historical analogues," he says. "Like these restrictions, the LCM Amendment is…a restriction responding to safety concerns present in our time."

As for the LCM ban's "why," Sheridan says, there is evidence that LCMs "increase the lethality of mass shooting events." In recent years, he notes, magazines holding over 10 rounds often have been used in mass shootings, including "all" such crimes from 2019 through 2022.

The "stated purpose" of New Jersey's LCM ban, which is to "effectively slow down a mass shooter," is "well-served" by that restriction, Sheridan writes. "A limitation on magazine capacity stops the rate at which victims can be injured," he says, and "allows for time during which a shooter may be intercepted, interrupted, or hopefully, stopped." While "such a problem" may be "new to us," he adds, it is "analogous to other safety issues presented by [weapons] commonly used…for lawful purposes confronted by our Nation in the past."

Sheridan, who decries the "alarming frequency" of mass shootings, never acknowledges that they remain rare compared to other kinds of lethal crime. Based on the commonly used definition of mass shootings as public attacks that kill four or more people, they account for around 1 percent of homicides committed with guns. And while Sheridan implies that mass shootings are on the rise, the RAND Corporation notes that "chance variability in the annual number of mass shooting incidents makes it challenging to discern a clear trend" and that "trend estimates are sensitive to outliers and to the time frame chosen for analysis."

Sheridan nevertheless decries the "reckless inaction of our governmental leaders to address the mass shooting tragedy afflicting our Nation," which both exaggerates the frequency of these crimes and takes for granted that they could be prevented if only politicians tried hard enough. In addition to a lack of political will, Sheridan implicitly blames the Supreme Court for saying that the Second Amendment puts some gun restrictions "off the table." Yet despite these views, he felt constrained to reject New Jersey's AR-15 ban.

At the same time, Sheridan was curiously reticent to extend his analysis by considering the illogic of banning "substantially identical" rifles and defining that category based on an arbitrary set of features. With or without those features, a rifle fires the same ammunition at the same rate with the same muzzle velocity. Does it make any sense, for example, to expect that banning rifles with both folding stocks and threaded barrels would have any noticeable impact on mass shooting deaths, let alone homicide generally?

While Sheridan's concern about the use of LCMs in mass shootings is more plausible, it is based on an inconclusive correlation. The public safety benefit of banning them is speculative, and Sheridan did not even consider the argument that the ability to fire more than 10 rounds without changing magazines can be important in some self-defense situations—a point that legislators take for granted when they exempt current and former police officers from magazine restrictions.

The FPC plans an appeal to the 3rd Circuit, which it wants to "address legal deficiencies in [Sheridan's] opinion," and "seek the full relief" that the plaintiffs requested. "Bans on so-called 'assault weapons' are immoral and unconstitutional," says FPC President Brandon Combs. "FPC will continue to fight forward until all of these bans are eliminated throughout the United States."

The post A Federal Judge Reluctantly Concludes That New Jersey's AR-15 Ban Is Unconstitutional appeared first on Reason.com.

President Joe Biden's new op-ed in The Washington Post makes the bold argument that, following a constitutional amendment to reverse a recent Supreme Court decision, Congress should pass both Supreme Court term limits and an ethics code to "restore the public's faith in the judicial system." According to Biden, the Court's "extreme" decisions and ethical crisis require immediate action.

Looking at the last Supreme Court term, none of this is true. The Court's opinions were nuanced and largely unanimous, and there are no credible allegations of vote-buying. If Biden wants to restore faith in the Court, he'd do better to highlight these nuances rather than using the Court as a political talking point.

At the outset, it's worth taking a bird's eye view of the Court. This term, the Court ruled unanimously in almost half (46 percent) of cases, which was similar to the year before (48 percent) and a significant uptick from the term before that (29 percent). Among the Court's unanimous or near-unanimous opinions were hot-button cases involving former President Donald Trump's eligibility for the presidency, access to the abortion drug mifepristone, the government's ability to dissuade companies from doing business with the National Rifle Association, regulation of social media companies, and the scope of the Second Amendment. Such consensus among the justices undercuts Biden's characterization of a rogue or extremist Court.

It's true that the Court is sometimes divided along partisan lines—and in many of those cases, the justices disagree vigorously. As Biden points out, Trump v. United States (regarding presidential immunity) and Dobbs v. Jackson (regarding abortion) represent two such cases. But just because these opinions were divisive doesn't make them radical.

For example, Biden chided the Court for imposing "virtually no limits on what a president can do" in the immunity case, but the Court maintained an ample sphere of liability for presidential acts. All nine justices agreed that presidents have absolutely no immunity for unofficial acts. While the majority ruled that absolute immunity applies to core, official acts, it emphasized that noncore duties are only presumptively immune.

Reasonable people can disagree about whether the Court made it too hard to rebut that presumption. But to make that call, we'll have to see how the standard plays out in practice. Trump's case, for example, will now go back down to the district court, which will determine which acts are official or unofficial, core or noncore, and whether the special prosecutor can surmount any presumption of immunity that applies. It makes little sense to say at this premature stage, as Biden does, that the only limits left on the president are "self-imposed."

Biden also criticizes the Court for "overturn[ing] settled legal precedents" like Roe v. Wade. But this is a critique with no substance. Precedent isn't an end in and of itself; prior cases should stand when they're correct and well-reasoned and fall when they're not. Some of the most important Supreme Court decisions in history "overturned settled precedent," including Brown v. Board of Education (overturning the separate but equal doctrine) and Gideon v. Wainwright (extending the right to counsel to felony defendants in state courts). Overturning precedent is part of a Supreme Court justice's job description. Without context, saying a judge overruled an earlier case is meaningless.

Biden's ethics accusations similarly lack substance. Though many have wrung their hands over Justice Clarence Thomas' friendship with businessman Harlan Crow, not one person—including Biden—has pointed to any specific instance where the justice supposedly traded his vote for a gift from his wealthy friend (and they ignore that Thomas voted against Crow's personal convictions in the abortion case). That's not surprising. Thomas is widely regarded as one of the most consistent justices on the Court who regularly writes separate opinions to explain his idiosyncratic views. Given that his views are so consistent, transparent, and well-known, it would be especially difficult for him to abandon them in exchange for a flight on a private jet. If anything, bribes are much more likely in the context of opaque decision making—as happens behind closed doors in the legislative and executive branches.

In at least some ways, the Court is showing more restraint than in prior years. It's taking fewer cases than ever (just 59 this year, compared to 82 a decade ago), it's finding reasons to sidestep thorny issues, and it's increasingly using judge-made legal doctrines to rule that the plaintiffs have no right to sue or that the case needs more time before the Court can step in. It also continues to produce interesting alignments between justices considered to be on opposite ideological spectrums. In a case involving the January 6 defendants, for example, Justice Ketanji Brown Jackson voted with "conservative" justices to throw out the convictions while Justice Amy Coney Barrett voted with the "liberals" to affirm them.

In sum, the Supreme Court is not exactly a radical conservative monolith. This term, Court watchers actually observed strong disagreements among Republican-appointed justices. If Biden cares about bolstering the public's faith in the judiciary, he'd be wise to emphasize this nuance.

The post Biden's Supreme Court Reforms Are Unnecessary and Wrong appeared first on Reason.com.

The Supreme Court on Friday ruled that the right to a trial by jury and to due process apply to people who face a steep sentencing enhancement under federal law, in a ruling that transfers some power from the hands of judges to the public and will affect many criminal defendants' future punishments.

The procedural history of the case is a bit of a whirlwind. But at its center is Paul Erlinger, who was charged in 2017 with being a felon in possession of a firearm and sentenced to 15 years under the Armed Career Criminal Act (ACCA), which increases the punishment for that offense—felon in possession of a firearm—from a 10-year maximum to a 15-year minimum if the defendant has been convicted previously of three violent felonies or serious drug offenses on separate occasions.

At sentencing came one of the initial twists, when the judge who handed down the 15-year punishment made clear it was inappropriate. Erlinger, who pleaded guilty, had gained steady employment, started a family, and remained drug-free in the more than a decade since his previous convictions, so a five-year sentence, the judge said, would be "fair." But under the ACCA, the court's hands were tied.

Then came the U.S. Court of Appeals for the 7th Circuit, which said shortly thereafter that two of Erlinger's offenses considered for the purposes of the ACCA did not actually qualify as violent felonies or serious drug crimes. Prosecutors, however, were undeterred. They returned to court and invoked convictions related to burglaries Erlinger committed 26 years before the felon in possession of a firearm charge, when he was 18 years old. Erlinger countered that the burglaries in question had been a part of one criminal episode—not distinct events as the ACCA requires—and that, most importantly, a jury would need to make the consequential determination about the separateness of those offenses.

The sentencing court disagreed, ruling it was the judge's decision and that the court was bound by the ACCA, thus reimposing the 15-year sentence that it once again called "unfortunate" and "excessive."

But Justice Neil Gorsuch, writing for the 6–3 majority opinion, explained that Erlinger did indeed have the 5th Amendment and 6th Amendment right to ask a jury whether those offenses were committed separately and if he is therefore vulnerable to the massive increase in incarceration that the sentencing court itself characterized multiple times as unjust. The outcome was at least somewhat predictable when considering yet another twist: After Erlinger appealed on the grounds that his constitutional rights had been violated, the government agreed. But the 7th Circuit still refused to reconsider his sentence, leaving Erlinger to ask the Supreme Court.

Core to Gorsuch's opinion is Apprendi v. New Jersey (2000), a Supreme Court precedent that ruled it was unconstitutional when a judge sentenced a defendant more harshly on the basis that a shooting had allegedly been motivated by racial animus, because no jury considered or made any determination beyond a reasonable doubt on that factor. A jury and a jury only, the Court ruled, may find "facts that increase the prescribed range of penalties to which a criminal defendant is exposed" when it will cause the penalty to exceed the prescribed statutory maximum.

But Gorsuch also says the Court has something else on its side today: history. "Prominent among the reasons colonists cited in the Declaration of Independence for their break with Great Britain was the fact Parliament and the Crown had 'depriv[ed] [them] in many cases, of the benefits of Trial by Jury,'" he writes. "The Fifth and Sixth Amendments placed the jury at the heart of our criminal justice system" in order "to mitigate the risk of prosecutorial overreach and misconduct" and serve as a check on the government.

This is not a novel area for Gorsuch, who has made clear his respect for the right to a trial by jury. Last month, he rebuked the Court's demurral from hearing a case concerning Florida's use of six-person juries as opposed to the traditional, historical practice of using 12-person panels.

Though much has been made of the ideologically fractured nature of the current Court, the decision in Erlinger did not fall neatly along partisan lines. Among the dissenters were Justices Samuel Alito, Brett Kavanaugh, and Ketanji Brown Jackson, the latter of whom argued that Apprendi—and, as an extension, the case law that has sprung from it—was wrongly decided. "I recognize that many criminal defendants and their advocates prefer the Apprendi regime, which provides some defendants with more procedural protections at sentencing," Jackson writes. "In my view, however, the benefit that some criminal defendants derive from the Apprendi rule in the context of their individual cases is outweighed by the negative systemic effects that Apprendi has wrought," which she says has hamstrung judges and increased sentencing disparities.

"The only thing judges may not do consistent with Apprendi is increase a defendant's exposure to punishment based on their own factfinding," counters Gorsuch. "Does Justice Jackson really think it too much to ask the government to prove its case (as it concedes it must) with reliable evidence before seeking enhanced punishments under a statute like ACCA when the 'practical realit[y]' for defendants like Mr. Erlinger is exposure to an additional decade (or more) in prison?"

The post The Supreme Court Again Strengthens the Right to a Jury Trial in Criminal Sentencing appeared first on Reason.com.

For nearly a decade, the transit authority in Washington, D.C., has faced controversy over restrictive guidelines governing advertisements in the city's subways and busses. Now, it might have to scrap some of them.

The controversial rules prohibit any ad that is "issues-oriented" or "intended to influence members of the public regarding an issue on which there are varying opinions." The guidelines also single out religious ads, prohibiting "advertisements that promote or oppose any religion, religious practice or belief."

Last month, a D.C. district court ruled in favor of a Christian group seeking to challenge the rules, placing a preliminary injunction on part of the guidelines that ban ads "intended to influence members of the public regarding an issue on which there are varying opinions."

The Washington Metropolitan Area Transit Authority (WMATA) first enacted the controversial rules after an anti-Islam activist attempted to buy an advertisement depicting Muhammad in 2015.

In 2017, the American Civil Liberties Union sued WMATA over the guidelines, joined by plaintiffs ranging from vegan group People for the Ethical Treatment of Animals (PETA) to right-wing provocateur Milo Yiannopoulos. That case is still ongoing. In 2018, however, a D.C. district court ruled against a request for a preliminary injunction against WMATA's rules.

But the ACLU has joined another lawsuit challenging the guidelines on First Amendment grounds—this time, to much better success. This latest lawsuit was filed in December 2023 by WallBuilders, an organization that aims to educate the public "concerning the Godly foundation of our country," according to legal records.

When WallBuilders attempted to purchase ads to go in WMATA busses, reading "Christian? To find out about the faith of our founders, go to wallbuilders.com." WMATA rejected the ads, citing their guidelines. When WallBuilders resubmitted the ads, omitting all text except "visit wallbuilders.com," they were still rejected.

WallBuilders sued. On May 21, Judge Beryl A. Howell of the District Court of D.C. granted WallBuilder's motion for a preliminary injunction, halting enforcement on the part of the guidelines that prohibited advertisements seeking "to influence members of the public regarding an issue on which there are varying opinions."

"WMATA is permitted to retain considerable discretion in evaluating the intent and purpose of an ad…but this discretion must be coupled with objective, workable standards," wrote Howell. "Put simply, the utterly undefined use of the phrase '[a]dvertisements intended to influence . . . regarding an issue on which there are varying opinions,' coupled with the lack of any definitions or official guidance and WMATA's inconsistent application of [the guideline], makes clear that [it] is not a reasonable restriction on speech."

The ruling is a major victory for a whole range of controversial groups who want to buy ads on D.C. buses and subways. It also sends a clear message to WMATA: While it can place some restrictions on the content of ads, its rules have to be well-defined and narrowly tailored. 

The post D.C.'s Rules for Subway Ads Are Blocked in Federal Court appeared first on Reason.com.

Guilty on all counts: Last night, a jury found former President Donald Trump guilty on all 34 counts. He was convicted of falsifying business records to cover up hush money payments to porn star Stormy Daniels, with whom he had a tryst, in the lead-up to the 2016 election.

Sentencing, which may include prison time but does not necessarily, has been set for July 11. Trump still has appeals to exhaust, and Judge Juan M. Merchan could also choose to seek probation instead of throwing the presidential candidate in the slammer. In other words: There are a lot of different ways this could play out which would still allow Trump to campaign for president (and be elected).

Since this happened last night, we do not yet have polling data on how this verdict will affect the presidential race. But a recent Quinnipiac University poll found that 6 percent of Trump voters would be less likely to vote for their favored candidate if convicted, while "24 percent say they would be more likely to vote for him" and an impressive "68 percent say it would not make a difference." That 6 percent could be consequential in a tight race.

Critics on the left, many of whom are hungry for Trump to receive jail time, and those on the right who are willing to excuse his criminal and norms-shattering behavior time and time again are both frequently wrong, but in this particular case, the legal argument was mighty dubious, writes Reason's Jacob Sullum, and the verdict was perhaps reached too swiftly, providing fodder for the argument that this was politically motivated.

"In legal terms, the quick verdict is hard to fathom," writes Sullum. "That's not because there were so many counts to consider, each related to a specific invoice, check, or ledger entry allegedly aimed at disguising a hush-money reimbursement as payment for legal services. Once jurors accepted the prosecution's theory of the case, it was pretty much inevitable that they would find Trump guilty on all 34 counts. But that theory was complicated, confusing, and in some versions highly implausible, if not nonsensical."

The basics: One of the prosecution's basic arguments was that Trump falsified business records with "an intent to commit another crime or to aid or conceal the commission thereof." That other crime would be a violation of Section 17-152, a New York state election law that considers it a misdemeanor for "two or more persons" to "conspire to promote or prevent the election of any person to a public office by unlawful means."

But Judge Merchan told jurors they did not have to agree on what "unlawful means" were used, or what that even means, to reach a unanimous verdict. And prosecutors needed to convince jurors that Trump "knowingly and willfully" engaged in such criminal conspiracy with his fixer, Michael Cohen, which strains credulity: One argument, put forth by prosecutors, was that Cohen "made an excessive campaign contribution, thereby violating the Federal Election Campaign Act (FECA), when he fronted the money to pay Daniels" (per Sullum)—an offense Cohen pleaded guilty to several years ago and a piece of evidence jurors heard but were instructed to use "to assess Cohen's credibility" but not his guilt—but it is in fact quite plausible that Trump did not know that instructing Cohen to pay Daniels was illegal.

"The prosecutors zapped a dead misdemeanor back into life by claiming a violation under New York's election law 17-152," writes Jonathan Turley at The Hill. "The argument is that the crime was committed to further another crime as an unlawful means to influence the election. However, that other crime can be the falsification of business records. So the jury (or some jurors, at least) could find that some documents were falsified as an unlawful means of falsifying other documents."

HOODWINKED: It's all legally shaky, but that didn't stop prosecutors from making wild arguments (as they do), like one that the hush-money payment (also called "[an] effort to hoodwink the American voter") "could very well be what got President Trump elected" in 2016, and that the cover-up of the Daniels affair amounted to "a subversion of democracy" meant to "manipulate and defraud the voters."

The payment to Daniels "turned out to be one of the most valuable contributions anyone ever made to Trump," Prosecutor Joshua Steinglass argued at one point. But, ultimately, jurors were convinced by these arguments—even if much of the conservative legal movement and punditry (even those who aren't Trump fans) were not.

As far as appeals, Trump has plenty of "material to work with" writes Ankush Khardori at Politico. "What he's got has almost nothing to do with the salacious and supposedly extraneous details offered by Daniels about her sexual encounter with Trump—after all, Trump and his legal team foolishly invited that testimony themselves by denying its existence—but with the underlying legal architecture of the case, which imported complex principles of federal election law into a state law case about false business records."

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Scenes from New York: That's enough New York for today.

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QUICK HITS

• It's pretty fun to play with this tool—called "Build a Trump Voter"/"Build a Biden Voter"—from The Economist.
• Bill Ackman preps for Pershing Square IPO.
• I'm here for all shots fired at baby boomers but am not sure whether stinginess—also termed frugality or fiscal prudence—is the concern. Why are we trying to audit an entire generation's consumer spending habits? Who cares?
• Inside the world of TikTok influencers who instruct their lady followers on how to snag a rich guy.
• Ukraine is now allowed to hit targets within Russia using American-made weapons in order to defend itself from its aggressors.
• Not sold on the term "climate refugees" (or apocalypticism about what the future will hold) but Brazilian flooding is displacing hundreds of thousands of people, leaving the government scrambling.
• Are you a libertarian left wondering who Chase Oliver is? Ask no more. Watch Just Asking Questions (and send us hate mail/love letters, vows of loyalty, notes of criticism, anything you desire). Some have said my views, espoused within, are "based" but I still do not know what this word means nor will I investigate.

The post First Felon appeared first on Reason.com.

What do the National Rifle Association (NRA), the American Civil Liberties Union (ACLU), and nine U.S. Supreme Court justices from five presidential administrations all have in common? That list is likely relatively small. But at least one area of overlap was made evident Thursday when the Court published a unanimous ruling that a New York government official allegedly violated the First Amendment by pressuring insurers and banks to sever business ties with the NRA, which the ACLU is representing.

The decision resuscitates the gun advocacy group's lawsuit against Maria Vullo, the former head of New York's Department of Financial Services (DFS). The U.S. Court of Appeals for the 2nd Circuit had previously ruled in her favor.

At the core of the case is Vullo's advocacy following the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Florida. After that tragedy, in private meetings with insurance companies, Vullo allegedly expressed she would selectively apply enforcement action to groups that insisted on serving the NRA.

She didn't stop there. She also sent letters titled "Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations" to insurers and banks, in which she encouraged them to "continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations"; to "review any relationships they have with the NRA or similar gun promotion organizations"; and to "take prompt actions to manag[e] these risks and promote public health and safety." And in a press release with then-Gov. Andrew Cuomo, the two officials urged such companies to terminate their relationships with the gun advocacy group. Some took them up on the suggestion.

The constitutional issue at stake here is similar to the one the Court explored in Murthy v. Missouri, the case that asks if President Joe Biden's administration violated the First Amendment when it sought to convince social media companies to remove content it disliked. During those oral arguments in March, many justices appeared sympathetic to the view that government officials had not overstepped the bounds of their authority and had merely exercised their own free speech rights to persuade those companies to adopt their views, not unlike a White House press secretary promoting an ideological slant to the media. 

But in NRA v. Vullo, the Court ruled unanimously that Vullo's actions as alleged by the NRA had crossed the line from persuasion into coercion. "Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors," wrote Justice Sonia Sotomayor. The NRA, she said, "plausibly alleges that respondent Maria Vullo did just that."

The decision sends the case back to the 2nd Circuit, which could still give Vullo qualified immunity, the legal doctrine that shields government officials from suits like the NRA's if the misconduct alleged has not been "clearly established" in prior case law. That outcome is certainly probable, as the 2nd Circuit's original decision not only ruled that Vullo had not violated the Constitution—which the Supreme Court rejected today—but that even if she had, qualified immunity would insulate her from the NRA's claim.

It is difficult to imagine, however, a more obvious violation of the Constitution than the weaponization of government power to cripple advocacy disfavored by the state. The supposed reason for qualified immunity is that taxpayer-funded civil servants deserve fair notice that conduct is unlawful before a victim can seek recourse for those misdeeds. To argue that a government agent could not be expected to understand the contours of the First Amendment here is rather dire.

Many people may struggle to separate the constitutional question from the ideological backdrop. The NRA, after all, is one of the more polarizing lobbying organizations in the country, not least of which because its founding issue—gun rights—is not exactly a topic that elicits cool-headed responses. It has also become an advocacy group not just for firearms but for the Republican Party more broadly and the identity politics associated with it, alienating large swaths of people, to put it mildly.

There is another major group in the country that has followed a similar story arc, just on the other side of the political spectrum: the ACLU. Once a stalwart free speech group—so principled it defended the First Amendment rights of Nazis—it has, in modern times, sometimes actively advocated against civil liberties when those principles transgress progressive politics, an awkward move when considering the group's name. But no matter how much you dislike one or both of them, the NRA and the ACLU coming together here is all the more reflective of the fact that some things, like the First Amendment, really aren't partisan.

The post The NRA's Unanimous Supreme Court Victory Is Good for Free Speech—No Matter How You Feel About Guns appeared first on Reason.com.

Prosecutors in Texas last week dismissed the criminal case against a journalist who, in 2021, was arrested, strip-searched, and jailed for filming police. But his lengthy legal battle is in some sense just beginning and once again demands we probe the idea that real journalists are entitled to a different set of rights than the public.

That's because Justin Pulliam, the man in question, is a citizen journalist. He is not employed by an outlet. Rather, he publishes his reporting to his YouTube channel, Corruption Report, which, true to its name, is unapologetically skeptical of state power and supportive of transparency.

The Fort Bend County Sheriff's Office (FBSCO) has allegedly been vexed by his audacity. In July 2021, Pulliam was expelled by police from a press conference because they alleged he did not qualify as media, and in December of that same year, he was arrested for videoing police at a mental health call, despite that he had stationed himself about 130 feet away from the interaction. Officer Taylor Rollins demanded Pulliam move back even further, and he obliged, although he continued to film the deputy speaking to other bystanders at the scene (none of whom were arrested).

That didn't end well for Pulliam, who was charged with interfering with police duties. (According to his complaint, Officer Ricky Rodriguez, who assisted with the arrest, told another cop at the jail that the ordeal would teach Pulliam a lesson "for fucking with us.") In April 2023, a jury was not able to reach a verdict in the case, with five jurors wanting to acquit and one urging to convict. It took law enforcement more than a year to decide not to pursue the case further.

One wonders if the Fort Bend government is smartly allocating resources in support of public safety when it doggedly went after a case because someone filmed them. Yet at a deeper level, it's worth asking if law enforcement would have taken the case to trial at all had Pulliam worked for a formal media outlet. My guess is no.

It is difficult to reconcile those two things. Journalism is, after all, an activity, consisting of collecting information and reporting it to the public. That venture is not exclusively available to people working at a full-time newsgathering organization, and the strength of the First Amendment should not hinge on whether or not you are on a media outlet's payroll. Even if Pulliam didn't consider himself a journalist at all—citizen or otherwise—his right to film the government employees he pays with his taxes should remain intact. It certainly shouldn't come at the expense of his freedom.

Whether or not he will be able to make that case before a jury in civil court is yet to be determined. Last June, Judge David Hittner of the U.S. District Court for the Southern District of Texas allowed Pulliam's federal lawsuit to proceed, declining to award the defendants qualified immunity, the legal doctrine that shields state and local government actors from such claims if their alleged misconduct was not already "clearly established" in the law. 

"The Individual Defendants assert no case law to support their proposition that an indictment precludes a claim for first amendment infringement," wrote Hittner. "Indeed, based on the facts alleged in the complaint, it appears Pulliam was singled out and arrested for exercising his rights under the First Amendment."

Pulliam, however, is not in the clear. He will next have to convince the U.S. Court of Appeals for the 5th Circuit, which has considered a similar case in recent months: that of Priscilla Villarreal, the citizen journalist in Laredo, Texas, who police arrested in 2017 using an obscure statute criminalizing the solicitation of nonpublic information if there is the "intent to obtain a benefit." If that description sounds a lot like standard journalism—seeking information not yet public—that's because it is. But despite attracting some strange bedfellows in her defense, Villarreal has not fared well in court.

While her case is not identical to Pulliam's, they both raise very similar questions, particularly as it relates to the idea that a certain class of journalists should get more rights than others. "Villarreal and others portray her as a martyr for the sake of journalism," wrote Judge Edith Jones in her majority opinion dismissing Villarreal's suit and giving qualified immunity to the police. "That is inappropriate," according to Jones, because Villarreal, who posts her reporting to her popular Facebook page Lagordiloca, is not a "mainstream, legitimate media outlet." Her free speech rights are suffering as a result.

The post This Journalist Was Arrested, Strip-Searched, and Jailed for Filming Police. Will He Get Justice? appeared first on Reason.com.

The job of the prosecutor is to hold the public accountable. But when the tables are turned—when the prosecutor is the one who allegedly flouted the law—it is, paradoxically, enormously difficult for victims to achieve recourse. Lawyers yesterday sparred at the U.S. Court of Appeals for the 5th Circuit over one such barrier preventing someone from suing a former assistant district attorney accused of misconduct so egregious that one judge on the 5th Circuit described it last year as "utterly bonkers."

At the center of the case is Ralph Petty, whose yearslong career included work as both an assistant district attorney and a law clerk—at the same time, for the same judges. In practice, that means his arguments as a prosecutor were sometimes performance art, because, as a law clerk, he had the opportunity to draft the same rulings he sought in court. It doesn't take a lawyer to deduce that the set-up presents troubling implications for due process.

One of Petty's alleged victims, Erma Wilson, would like the opportunity to bring her civil suit against him before a jury. In 2001, she was convicted of cocaine possession after police found a bag of crack on the ground near where she and some friends were gathered. Law enforcement offered to let her off if she implicated the guilty party; she said she didn't know.

Years later, that conviction continues to haunt her. Most notably, it doomed any chance of her fulfilling her lifelong dream of becoming a nurse, because Texas, where she lives, does not approve registered nursing licenses for people found guilty of drug-related crimes.

Wilson's conviction coincided with the beginning of Petty's dual-hat arrangement in Midland County, Texas. Though he was not the lead prosecutor on her case, she alleges he "communicated with and advised fellow prosecutors in the District Attorney's Office" on her prosecution while simultaneously working for Judge John G. Hyde, who presided over her case, giving him "access to documents and information generally unavailable to prosecutors." (Hyde died in 2012.)

"Further undermining confidence in Erma's criminal proceedings, Petty and Judge Hyde engaged in ex parte communications concerning Erma's case," her lawsuit reads. "Consequential motions, such as Erma's motion to suppress, were resolved in the prosecution's favor throughout trial. And despite the weak evidence against her, Erma's motion for a new trial was not granted. Any of these facts by itself undermines the integrity of Erma's trial. Together, these facts eviscerate it." 

Typically prosecutors are protected by absolute immunity, which, as its name implies, is an even more robust shield than qualified immunity. But that issue is not before the 5th Circuit, because Wilson must overcome another barrier: Someone who has been convicted of a crime may not sue under Section 1983—the federal statute that permits lawsuits against state and local government employees for alleged constitutional violations—unless "the conviction or sentence has been reversed on appeal or otherwise declared invalid," wrote Judge Don Willett for the 5th Circuit in December. "The wrinkle here is that Petty's conflicted dual-hat arrangement came to light only after Wilson had served her whole sentence."

But Willett—the same judge who characterized Petty's alleged malfeasance as "utterly bonkers"—did not appear happy with his own ruling, which he said came because his hands were tied by precedent. He invited the 5th Circuit to hear the case en banc, where all the judges on the court convene to reconsider an appeal, as opposed to a three-judge panel (the usual format for evaluating cases).

The court accepted. "The defendants say that [Wilson is] forever barred from invoking that federal cause of action or any other federal cause of action unless she first persuades state officials to grant her relief. If they never do, she can never sue," Jaba Tsitsuashvili, an attorney at the Institute for Justice who is representing Wilson, argued yesterday. "In most circuits, that argument would be rejected, and rightly so."

At the center of the case is Heck v. Humphrey (1994), a Supreme Court precedent that, as Willett noted, forecloses Section 1983 relief for plaintiffs alleging unconstitutional convictions if his or her criminal case was not resolved with "favorable termination." The catch: Most federal appeals courts have established that Heck does not apply when federal habeas relief is no longer available, as is the case with Wilson. The 5th Circuit is an exception.

Perhaps soon it won't be. Yet even if the judges agree with Tsitsuashvili's interpretation of the law, Wilson is not in the clear. She will then have to explain why Petty is not entitled to absolute immunity, which inoculates prosecutors from facing such civil suits if their alleged misconduct was carried out in the scope of their prosecutorial duties. It is nearly impossible to overcome. But Petty may not be a candidate for it, because his malfeasance was technically not committed as a prosecutor. It was committed as a law clerk.

Should Wilson be granted the privilege to sue, it will be the first time an alleged victim of Petty's gets a tangible chance at recourse. There was, of course, the fact that he was disbarred, but defendants whose trials were marred by Petty likely take little comfort in that, particularly when considering it came in 2021—two years after he retired.

The post Can This Woman Sue the Rogue Prosecutor Who Allegedly Helped Upend Her Life? appeared first on Reason.com.

A federal court yesterday heard arguments in an appeal concerning an area of law that, while niche, has seen a streak of similarly situated plaintiffs pile up in recent years. At stake: When a SWAT team destroys an innocent person's property, should the owner be strapped with the bill?

There is what I would consider a commonsense answer to that question. But in a reminder that common sense does not always guide law and policy, that is not the answer reached by several courts across the U.S., where such victims are sometimes told that "police powers" provide an exception to the Constitution's promise to give just compensation when the government usurps property for public use.

It remains to be seen where the U.S. Court of Appeals for the 6th Circuit will fall as it evaluates the complaint from Mollie and Michael Slaybaugh, who are reportedly on the hook for over $70,000 after a SWAT team destroyed much of their home in Smyrna, Tennessee.

In January 2022, Mollie Slaybaugh stepped outside her house and was greeted by a police officer with his gun drawn. She was informed that her adult son, James Jackson Conn—who did not live with her but had recently arrived to visit—was wanted for questioning concerning the murder of a police officer, which she says was news to her. Although she offered to speak to Conn and bring him out of her house, law enforcement declined to permit that, or to let her re-enter at all, so she went to stay at her daughter's house nearby.

The next day, police broke down the door and launched dozens of tear gas grenades into the Slaybaughs' home, laying waste to nearly everything in the house. Their insurance declined to assist them, as their policy—like many policies—does not cover damage caused by the government. Yet both Smyrna and Rutherford County said they were immune from helping as well.

But despite Mollie Slaybaugh's offer to coax Conn out sans tear gas, her complaint does not dispute that it was in the best interest of the community for law enforcement to do as they did that day. It merely contests the government's claim that innocent property owners should have to bear the financial burden by themselves when police destroy their homes in pursuit of a suspect.

"Law enforcement is a public good. Through our taxes, we pay for the training, equipment, and salaries of police officers. We pay to incarcerate criminals. We pay for a court system and public defenders," reads her complaint. "When the police destroy private property in the course of enforcing the criminal laws, that is simply another cost of law enforcement. Forcing random, innocent individuals to shoulder that cost alone would be as fair as conducting a lottery to determine who has to pay the police chief's salary each year."

That hypothetical is absurd. And yet the spirit of it is at the heart of several court decisions on the matter. That includes the U.S. District Court for the Middle District of Tennessee, which ruled last year that the Slaybaughs were not entitled to a payout because, in the court's view, the Takings Clause of the Fifth Amendment does not apply when the state seizes and destroys someone's property in the exercise of "police powers."

The Slaybaughs are unfortunately not alone. The notion that "police powers" immunize the government from liability is what doomed Leo Lech's lawsuit, which he filed after a SWAT team did so much damage to his home—in pursuit of a suspect that broke in and had no relation to the family—that it had to be demolished. In 2020, the Supreme Court declined to hear the case.

Similar claims are continuing to accumulate. The city of Los Angeles refused to compensate Carlos Pena after a SWAT team destroyed his North Hollywood print shop in pursuit of a suspect who barricaded himself inside, and the government in McKinney, Texas, turned away Vicki Baker after police ruined her home and much of its contents while, again, trying to catch a fugitive. After a legal odyssey of sorts, Baker was able to secure a judgment from a federal jury—though that was ultimately overturned by the U.S. Court of Appeals for the 5th Circuit, which ruled there was a "necessity" exception to the Takings Clause. Most recently, the local government in South Bend, Indiana, rejected Amy Hadley's pleas for help after police mutilated her home in search of a suspect she'd never met and who'd never been to her home. An officer's botched investigation led law enforcement to her house, and she has been forced to pay the price of that blunder. Accountability should not just be for the little people.

"The plain text of the Just Compensation Clause contains no exemptions for the police power, for public necessity, or for damage done by law enforcement. And the government bears the burden of establishing that any such exception is grounded in our nation's history and tradition," Jeffrey Redfern, an attorney with the Institute for Justice representing the Slaybaughs, told the 6th Circuit yesterday. "But the government hasn't even tried to meet that burden. Instead it asks this court to blindly follow decisions from other jurisdictions—decisions whose reasoning the government isn't really defending."

In some sense, the government is throwing what it can at the wall to see what sticks. And a fair amount of nonadhesive material is successfully latching on—an exception to the laws of nature that few entities other than the government could reasonably hope to enjoy.

The post A SWAT Team Blew Up This Innocent Couple's Home and Left Them With the Bill. Was That Constitutional? appeared first on Reason.com.

Juan Merchan, the judge presiding over Donald Trump's criminal trial in Manhattan, yesterday denied a second defense motion for a mistrial. Trump's lead attorney, Todd Blanche, has objected to aspects of porn star Stormy Daniels' testimony about her purported 2006 sexual encounter with Trump, saying some of the details were legally irrelevant and "so unduly and inappropriately prejudicial" that a mistrial was the only remedy. Merchan rejected that argument on Tuesday and again on Thursday, saying the problem that Blanche perceives was largely a result of the defense team's failures during Daniels' testimony and cross-examination.

Among other things, Blanche cited testimony suggesting, for the first time, that Daniels' alleged encounter with Trump was not fully consensual. This dispute illustrates the risk that the salaciousness of Daniels' account will overshadow the legal issue at the center of the case.

Trump is not charged with adultery or sexual assault. He is not charged with trying to keep Daniels from talking about what she says happened, although Manhattan District Attorney Alvin Bragg has misleadingly suggested that the essence of Trump's crime was keeping that information from voters during his 2016 presidential campaign. Trump is not even charged with instructing his personal lawyer, Michael Cohen, to pay Daniels $130,000 shortly before the election in exchange for her silence. Rather, he is charged with falsifying business records to disguise his 2017 reimbursement of Cohen as payment for legal services.

Proving those 34 charges does not require demonstrating that Daniels is telling the truth at all, let alone that every detail is accurate. Under the prosecution's theory, Trump would be guilty of falsifying business records even if Daniels made the whole thing up. And assuming that Cohen's payment to Daniels amounted to an excessive campaign contribution (a characterization that Cohen accepted when he pleaded guilty to that offense in 2018), Trump's falsification of business records would be a felony if he was trying to conceal that violation of federal campaign finance regulations.

There are several problems with that theory, including the fuzziness of the distinction between personal and campaign expenditures, the question of whether Trump recognized that the Daniels payoff fell into the latter category (assuming that it did), the uncertainty about Trump's involvement in generating the relevant business records and his motive in doing so, and the attempt to convert a 2016 federal campaign finance violation into a state felony via a moribund New York election law that apparently has never been used before. But one thing is clear: Trump's criminal liability in this case has nothing to do with exactly what happened in his Lake Tahoe hotel suite during a celebrity golf tournament in July 2006.

Jurors nevertheless heard a lot about that. For years, Daniels has said she consented to sex with Trump. But during her testimony on Tuesday, she cast doubt on that characterization, saying "I just think I blacked out," although she added that she was not "drunk" or "drugged." She also noted that "there was a bodyguard right outside the door" and said "there was an imbalance of power for sure," since Trump "was bigger and blocking the way," although she conceded that she "was not threatened verbally or physically."

When Blanche complained that Daniels had changed her story, Merchan disagreed. "I disagree with your narrative that there is any new account here," the judge said. "I disagree that there is any changing story." Yet Blanche's complaint is at least partially valid.

It's true that Daniels has mentioned the bodyguard, Keith Schiller, before. He figures prominently in the account she gave in her 2018 memoir Full Disclosure. In that book, she also mentions that Trump did not wear a condom—another detail that Blanche described as irrelevant and prejudicial.

"I was surprised he didn't even mention a condom," Daniels says in Full Disclosure. "I didn't have one with me anyway, because I wasn't meeting him for sex. If I had been, I always brought my own, because I am allergic to latex. Back then I used Avantis"—a brand of nonlatex condoms. While Daniels' testimony on that point was similar, it introduced an element of concern that is not mentioned in the book:

Prosecutor Susan Hoffinger: Was he wearing a condom?

Daniels: No.

Hoffinger: Was that concerning to you?

Daniels: Yes.

Hoffinger: Did you say anything about it?

Daniels: No.

Hoffinger: Why not?

Daniels: I didn't say anything at all.

That exchange, Blanche noted, came after Daniels' testimony that the men with whom she performed in adult films were always required to wear condoms. On Thursday, the defense described the discussion of condoms as "a dog whistle for rape." While that may be an exaggeration, Daniels' testimony that Trump's failure to use a condom worried her certainly reinforced the impression that Daniels was doing something she did not want to do.

Full Disclosure leaves a similar impression—up to a point. After a conversation in which Daniels felt that Trump was treating her respectfully and taking her seriously as a businesswoman, she says, she emerged from a bathroom where she had touched up her makeup to find Trump sitting on a bed in his underwear.

"I had the sense of a vacuum taking all of the air out of the room, and me deflating with it," Daniels writes. "I sighed inwardly, keenly aware of two thoughts in that one moment. There was the simple Oh, fuck. Here we go. But there was also a much more complex, sad feeling that none of what he said was true. He didn't respect me. Everything he said to me was bullshit."

Daniels says she "should have…let him know this wasn't okay." But she didn't. "So, here we go," she writes. "It was an out-of-body experience….I just kind of lay there. A lot of women have been there. He wasn't aggressive, and I know for damn sure I could have outrun him if I tried, but I didn't. I'm someone who doesn't stop thinking, so as he was on top of me I replayed the previous three hours to figure out how I could have avoided this."

In her book, Daniels describes brief, sad, regrettable, and unsatisfying sex, but she emphasizes that it was an experience she easily could have avoided. Although she never quite explains why she decided to go through with it, there is no suggestion that she was incapacitated. But in her testimony, she said "I blacked out," which she suggested explained why "I don't remember" exactly what happened. Blacking out is not the same as "an out-of-body experience," which involves feeling detached from your body while fully conscious.

"I was not drugged," Daniels said. "I never insinuated that I was on drugs. I was not drunk. I never said anything of that sort." In a sidebar discussion, defense attorney Susan Necheles nevertheless objected that "she is making it sound like she was drugged." Hoffinger suggested that Daniels merely meant that she was "dizzy," possibly because she was hungry for the dinner that was promised but never materialized—a point she emphasizes in her book and mentioned in her testimony.

Merchan sustained Necheles' objection. But that did not stop the jury from hearing Daniels imply that she was not fully aware of what was happening that night. Combined with Daniels' references to the bodyguard and the "imbalance of power," that description strongly suggested her consent was not only passive and unenthusiastic but the product of pressure and incapacity.

Daniels strengthened that impression by saying she could not "remember how your clothes got off." There was Trump in his underwear, she said, and "the next thing I know" she was "on the bed," naked. Hoffinger asked whether she "remember[ed] anything other than the fact that you had sex on the bed." Not really, Daniels implied: "I was staring at the ceiling. I didn't know how I got there. I made note, like I was trying to think about anything other than what was happening there." That also prompted an objection from Hoffinger, which Merchan sustained.

In Full Disclosure, by contrast, Daniels recounts the sex in considerable detail, calling Trump "a terrible kisser," quoting what he said to her, describing the position he used, recalling the size and "unusual" shape of his penis, and remarking on his crotch hair. While these are just the sort of details that the defense (and Merchan) would deem out of bounds, they contradict the idea that Daniels was just "staring at the ceiling," that she didn't know "how I got there," or that she was only dimly aware of "what was happening there."

What does all this have to do with Trump's alleged falsification of business records? "All of this has nothing to do with this case," Blanche told Merchan on Tuesday. "The only reason why the government asked those questions, aside from pure embarrassment, is to inflame this jury to not look at the evidence that matters." He noted that Daniels "has testified today about consent, about danger," which is "not the point of this case."

The prosecution argues that the details of Daniels' story matter because they rebut Trump's contention that she invented the whole episode, which in turn goes to his motivation in arranging her nondisclosure agreement and in trying to keep it a secret with phony invoices, mislabeled checks, and fraudulent ledger entries. "Her account completes the narrative of the events that precipitated the falsification of business records," Hoffinger told Merchan. "Her account is highly probative of the defendant's intent, his intent and his motive in paying this off, and making sure that the American public did not hear this before the election. It is precisely what the defendant did not want to become public."

Merchan agreed with Blanche that "there were some things that would probably have
been better left unsaid." But he said the fault for that lay partly with Trump's attorneys. "The objections, for the most part, were sustained," he said. "Where there was a motion to strike testimony, for the most part, that motion was granted as well. I will also note that I was surprised that there were not more objections at various times during the testimony….So when you say that, you know, the bell has been rung, the defense has to take some responsibility for that."

Merchan was less patient on Thursday, when the defense again moved for a mistrial. "There were many times when you could have objected but didn't," he told Necheles. She objected when Daniels testified that she "touch[ed] his skin" and when she said "we were in the missionary position," for example, but did not object during the condom exchange, which Blanche later argued was prejudicial and irrelevant. Nor did Necheles object when Daniels described the "imbalance of power" or when she noted that Trump was "definitely several inches taller and much larger" than her. And Necheles' objection to "I just think I blacked out" came late, five sentences after Daniels said it.

Merchan also "chided Mr. Trump's lawyers for missteps during their cross-examination of Ms. Daniels," The New York Times notes, "and suggested that the former president's insistence on entirely denying any sexual encounter with Ms. Daniels had opened the door for the prosecution to introduce specific—and graphic—evidence that the encounter did occur." The judge conceded that some details of Daniels' testimony were so needlessly prejudicial that he would have sustained objections to them if the defense had made them. At the same time, he said Daniels could "corroborate her account" by describing details of the encounter because a truthful story "increases the motivation to silence her."

That rationale seems like a stretch, especially since the prosecution has argued that Trump was eager to suppress negative stories even when they were not true. According to testimony that prosecutors presented to establish that pattern, Cohen arranged for the National Enquirer to pay former Trump Tower doorman Dino Sajudin $30,000 for exclusive rights to his story, which alleged that Trump had fathered a child with a woman hired to clean the building. Although the Enquirer investigated that story and determined that it was not true, prosecutors say, Trump was still keen to stop Sajudin from telling it. That suggests Trump would have wanted to silence Daniels even if her story was equally fictitious, making all the quibbling about the details of that story irrelevant.

The post The Details of Stormy Daniels' Story About Sex With Trump Are Legally Irrelevant appeared first on Reason.com.

In December 2022, Reason reported that both state and federal wildlife agents routinely trespass onto private land and plant cameras. Two Tennessee homeowners successfully sued the state over the practice, and a three-judge panel ruled in their favor. The state appealed the decision, and this week the court of appeals ruled in the homeowners' favor.

At issue is a state law allowing officers of the Tennessee Wildlife Resource Agency (TWRA) to "go upon any property, outside of buildings, posted or otherwise," in order to "enforce all laws relating to wildlife." In the case of Terry Rainwaters and Hunter Hollingsworth, TWRA officers not only entered their respective properties but also installed trail cameras to look for hunting violations, all without a warrant and ignoring "No Trespassing" signs. A lawsuit filed by the Institute for Justice (I.J.) on behalf of Rainwaters and Hollingsworth asked the court to declare the law unconstitutional and issue an injunction against the TWRA, barring it from carrying out any further unwarranted intrusions.

Under the "open-fields doctrine," Supreme Court precedent dating back to Prohibition holds that undeveloped land on someone's property lacks the same rigorous Fourth Amendment protections as their home and the "curtilage," the area immediately surrounding the home.

In March 2022, a three-judge panel from the Benton County Circuit Court ruled in the homeowners' favor, finding that the state constitution provided more protections than the Fourth Amendment. It determined that the state law allowing the TWRA practice created an "intolerable risk" of abuse and was "facially unconstitutional," but it stopped short of issuing an injunction. The state appealed the decision the following month.

In a hearing before the Tennessee Court of Appeals Western Section on June 20, 2023, I.J. attorney Josh Windham argued that the state law is unconstitutionally broad. "It allows TWRA officers to enter and roam around private land, fishing for evidence of crime," Windham said. "It doesn't require consent. It doesn't require warrants. It doesn't require probable cause….It's a blank check for officers to invade private land whenever and however they please."

Amanda Jordan argued for the Tennessee Attorney General's office that the statute was not unconstitutional and that the policy was necessary for the TWRA to do its job. She argued that "it's the particular purpose and function of the TWRA which makes such warrantless entry reasonable."

Judge Jeffrey Usman asked Jordan why, if the state would need a warrant in order to enter someone's property to look for criminal violations, it should not also need a warrant to do the same for civil violations of hunting laws. Jordan agreed that "while normal law enforcement officers would not be able to enter" without a warrant, "you have to look at the state's interest in furthering its duty of protecting and preserving" Tennessee's wildlife.

But Usman pressed further, asking whether the state has "an even stronger interest in protecting persons than wildlife." Further, he asked, "If you can't enter to investigate a crime being committed against a person…why is the interest greater to enter to protect wildlife?"

In a decision issued Thursday, the court of appeals ruled in favor of the property owners. The TWRA claimed that the homeowners' claims of injury were "speculative" as "TWRA agents have not entered the Plaintiffs' lands since September 2018." The court disagreed: Writing for a unanimous court, Usman noted in the decision,

Even if the TWRA has not entered the Plaintiffs' properties since 2018, it continues to assert its power to do so. The TWRA has asserted a continuing right to enter upon the Plaintiffs' properties. At oral argument, the TWRA suggested that if the Plaintiffs want to keep the TWRA off of their land in the future that they should desist in hunting.

"At the most foundational level," the court determined, "the statute is facially constitutional because there are applications of the statute that are constitutionally permissible," including "wild waste land areas." But in this specific scenario, where wildlife agents planted cameras on homeowners' land without ever even pursuing a warrant, the court found the TWRA's actions unconstitutional as applied.

"The TWRA's contention is a disturbing assertion of power on behalf of the government that stands contrary to the foundations of the search protections against arbitrary governmental intrusions in the American legal tradition, generally, and in Tennessee, specifically," Usman wrote. "What the TWRA claims is reasonable is not."

"Our entire theory of the case was vindicated by this decision," Windham tells Reason. "The part that goes against the trial court ruling [says] that the statute can be constitutionally applied to land where people haven't taken any steps to exert control or exert their privacy, which is a rule we don't particularly object to."

The post Tennessee Appeals Court Rules Against Wildlife Agents Who Planted Cameras on Private Land appeared first on Reason.com.

Dennis Powanda and Vincent Yakaitis are bound together by a common experience: They were both criminally charged in connection with an attempted burglary. Powanda was the burglar, and Yakaitis was the property owner.

Ah, justice.

Indeed, that's not a misprint, parody, or a bad joke (although I wish it were the latter). Powanda was arrested and charged with criminal trespass and burglary, along with other related offenses, for executing the botched raid a little before 2:00 a.m. in February 2023 at Yakaitis' property in Port Carbon, Pennsylvania. The government charged Yakaitis, who is in his mid-70s, with using a firearm without a license after he shot Powanda, despite that it appears prosecutors agree Yakaitis justifiably used that same firearm in self-defense.

Whatever your vantage point—whether you care about criminal justice reform and a fair legal system, or gun rights, or all of the above—it is difficult to make sense of arresting and potentially imprisoning someone over what essentially amounts to a paperwork violation. That injustice is even more glaring when considering that Powanda, 40, allegedly charged at Yakaitis, who happens to be about three and a half decades older than Powanda.

Pennsylvania's permitting regime does carve out a couple of exceptions, one of which would seem to highly favor Yakaitis. Someone does not need a license to carry, according to the law, "in his place of abode or fixed place of business." Yakaitis owned the home Powanda attempted to burglarize. The catch: He didn't live there—it reportedly had no tenants at the time of the crime—opening a window for law enforcement to charge him essentially on a technicality.

If convicted, Yakaitis faces up to five years in prison and a $25,000 fine. Quite the price to pay for protecting your life on your own property. The misdemeanor charge also implies that Yakaitis has no history of using his weapon inappropriately, or any criminal record at all, as Pennsylvania law classifies his particular crime—carrying a firearm without a license—as a felony if the defendant has prior criminal convictions and would be disqualified from obtaining such a license. In other words, we can deduce that Yakaitis was a law-abiding citizen and eligible for a permit, which means he is staring down five years in a cell for not turning in a form and paying a fee to local law enforcement. OK.

Yakaitis is not the first such case. In June, law enforcement in New York charged Charles Foehner with so many gun possession crimes that if convicted on all of them he would face life in prison. Police came to be aware of his unlicensed firearms when Foehner defended himself against an attempted mugger—the surveillance footage is here—after which they searched Foehner's home and found that only some of his weapons were licensed with the state.

Prosecutors classified it as a justified shooting. And then they hit Foehner with an avalanche of criminal charges that would have resulted in a longer prison sentence than his assailant would have received, had he survived.

There's also LaShawn Craig, another New York City man whose case I covered in December. He, too, shot someone in self-defense and he, too, was arrested for doing so without a license. Like Foehner, he was charged with criminal possession of a weapon, a violent felony in New York. For a paperwork violation.

New York is a particularly relevant case study on the subject, as its highly restrictive concealed carry framework was the subject of a landmark Supreme Court case—New York State Rifle & Pistol Association, Inc. v. Bruen—which the majority disemboweled. It wasn't just conservative gun rights advocates who wanted that ruling, although you'd be forgiven for thinking so based on how polarized this debate tends to be. That Supreme Court decision also attracted support from progressive public defenders with The Black Attorneys of Legal Aid, The Bronx Defenders, and Brooklyn Defender Services. As I wrote in June about the amicus brief they submitted to the Court:

[The public defenders] offered several case studies centered around people whose lives were similarly upended. Among them were Benjamin Prosser and Sam Little, who had both been victims of violent crimes and who are now considered "violent felons" in the eyes of the state simply for carrying a firearm without the mandated government approval. Little, a single father who had previously been slashed in the face, was separated from his family while he served his sentence at the Vernon C. Bain Center, a notorious jail that floats on the East River. The conviction destroyed his nascent career, with the Department of Education rescinding its offer of employment.

In many jurisdictions, including New York, it can be expensive and time-consuming to get the required license, which in turn makes the Second Amendment available only to people of a certain class.

So where do we go from here? Those skeptical of rolling back concealed carry restrictions may take comfort in the fact that this doesn't have to be black and white. Governments, for example, can "give eligible persons a 30-day grace period to seek and obtain a permit after being charged, then automatically drop charges and expunge record once obtained," offers Amy Swearer, a senior legal fellow at the Heritage Foundation, or "remove the criminal penalty entirely" and perhaps "make it a fineable infraction," like driving without a license.

Whatever the case, it should be—it is—possible to balance public safety with the right to bear arms, and, as an extension, the right to self-defense. To argue otherwise is to embolden a legal system that incentivizes elderly men like Yakaitis to sit down and take it when someone threatens their life.

The post This Elderly Man Was Arrested After Shooting a Burglar in Self-Defense—for Carrying the Gun Without a License appeared first on Reason.com.

Federal judges will be limited from enhancing defendants' sentences based on conduct a jury acquitted them of, a practice that has drawn condemnation from a wide range of civil liberties groups, lawmakers, and jurists.

The U.S. Sentencing Commission, a bipartisan panel that creates guidelines for the federal judiciary, voted unanimously Wednesday to adopt an amendment prohibiting judges from using acquitted conduct when calculating a defendant's sentencing range under those guidelines. The only exception is if the conduct "also establishes, in whole or in part, the instant offense of conviction."

"Not guilty means not guilty," U.S. District Judge Carlton W. Reeves, the chair of the Sentencing Commission, said in a press release. "By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system."

Although it sounds antithetical to what everyone is taught about the American justice system, at the sentencing phase of a trial, federal judges could enhance defendants' sentences for conduct they were acquitted of if the judge decided it was more likely than not—a lower standard of evidence than "beyond a reasonable doubt"—that the defendant committed those offenses. This raised defendants' scores under the federal sentencing guidelines, leading to significantly longer prison sentences.

For example, Reason's Billy Binion reported on the case of Dayonta McClinton, who was charged with robbing a CVS pharmacy in Indiana at gunpoint and killing one of his accomplices during a dispute after the robbery. A jury convicted McClinton of robbing the pharmacy but acquitted him of killing his accomplice. A federal judge nevertheless used the accomplice's death to enhance McClinton's sentence from the 57–71 months recommended under the guidelines to 228 months.

McClinton filed a petition to the Supreme Court challenging the use of acquitted conduct at his sentencing, but despite several Supreme Court justices previously expressing doubt about the constitutionality of the practice—including Justices Brett Kavanaugh and Clarence Thomas—the Court declined to take up the case last June. Reuters reported that four of the justices signaled they would defer to the Sentencing Commission.

The Justice Department opposed a previous proposal by the Sentencing Commission to limit the use of acquitted conduct.

"Curtailing courts' discretion to consider conduct related to acquitted counts would be a significant departure from long-standing sentencing practice, Supreme Court precedent and the principles of our guidelines," Jessica Aber, the U.S. attorney for the Eastern District of Virginia, testified before the Commission last February.

The Justice Department declined to comment on the new policy.

The practice also outraged members of Congress. For the past several years, Sens. Chuck Grassley (R–Iowa) and Dick Durbin (D–Ill.) have introduced legislation to ban the use of acquitted conduct at sentencing in federal trials, but so far none have passed.

In a statement today, Durbin continued to call for the passage of his and Grassley's Prohibiting Punishment of Acquitted Conduct Act, saying "this unjust practice must be prohibited under federal law."

"Under our Constitution, defendants can only be convicted of a crime if a jury of their peers finds they are guilty beyond a reasonable doubt," Durbin said. "However, federal law inexplicably allows judges to override a jury verdict of 'not guilty' by sentencing defendants based on acquitted conduct. This practice is inconsistent with the Constitution's guarantees of due process and the right to a jury trial. That's why I applaud the Sentencing Commission's important step to limit the use of acquitted conduct."

The post U.S. Sentencing Commission Restricts Federal Judges' Ability To Use Acquitted Conduct at Sentencing appeared first on Reason.com.

For the price of $77 to $224, Pennsylvania residents can get a personalized license plate that "contain[s] a combination of up to seven letters and/or numbers," per the state's Department of Transportation (PennDOT). 

That is unless your application for a vanity plate is among the 2,872 rejected over the years.

The department keeps a "Do Not Issue" list, effectively banning thousands of "unacceptable configurations" that they interpret as euphemisms, epithets, or obstructions to law enforcement.

These restrictions are backed by PennDot's loosely defined list of 16 criteria, which the department's staff strictly adheres to, using internet slang dictionaries to check if the acronyms pass.

To be fair, it's not the entire list that raises eyebrows. Restrictions on libel or slander—as well as text that meddles with the license plates' primary purpose "to provide a State-issued, visible, and unique alpha-numeric identification mark for display in a uniform manner"—make sense.

But then you have "words which inflict injury or tend to incite an immediate breach of the peace." What does that include, exactly? It includes what the department staff says it includes. 

Also not allowed are acronyms that suggest sexual innuendo, like BLOWME, or contain profane or obscene intent, like DZZNUTZ. Don't even think about references to excretory functions.

Pennsylvania is far from the only state that has banned acronyms from vanity plates. New York doesn't allow NOTPOLCE or, for whatever reason, AY000000. Tennessee banned ILVTOFU back in 2014 for a vegan application. In 2017, Georgia banned Donald Trump's infamous COVFEFE gaffe. Kentucky said no to KARMA.

The examples don't end there; a list of banned personalized plates is commonplace across the U.S. But the constitutionality of the matter is not necessarily settled.

In 2015, a Texas nonprofit argued that displaying the Confederate flag on the organization's special license plate was their First Amendment right. In a 5-4 vote, the court disagreed. 

"In our view, specialty license plates issued pursuant to Texas's statutory scheme convey government speech," former Justice Stephen Breyer wrote for the majority. "Were the Free Speech Clause interpreted otherwise, government would not work."

The dissent argued that most people do not recognize speech on a license plate as government policy. "The Court's decision passes off private speech as government speech," wrote Justice Samuel Alito, "and, in doing so, establishes a precedent that threatens private speech that government finds displeasing." 

The Court's ruling, however, applied to special plates with names and logos, not personalized plates. There is thus no official ruling at a national level as to whether vanity plates are private or government speech. This leaves plenty of room for state officials to interpret the propriety of applications for approval, and even to rescind vanity plates to address complaints.

Without an official distinction, however, there have been many instances of successful lawsuits to reverse rejections, from striking down Kentucky's rejection of IM GOD to stopping California's crackdown against messages "offensive to good taste and decency."

Eugene Volokh, a professor of law at the University of California Los Angeles School of Law, wrote that lower courts, upon petition, have typically recognized the design of the plate as government speech, but not the text itself. But until there's an official distinction by the Supreme Court, rejected applicants who are upset can try suing. Otherwise, the next-best option is taking it up to the department.

And though PennDOT is willing to discuss rejections with applicants, they have a disclaimer: "PennDOT reserves the right to limit or reject certain requests."

The post Your Local DMV May Have No Sense of Humor appeared first on Reason.com.

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.

Today's Image

The post Sarah Silverman's Lawsuit Against OpenAI Is Full of Nonsense Claims appeared first on Reason.com.