"All you need, besides the cocaine, is a lighter, water, baking soda, some Q-Tips, high-proof alcohol, a ceramic mug, and a piece of cheesecloth or an old T-shirt," writes Glenn Loury in his riveting Late Admissions: Confessions of a Black Conservative. The book is surely the only memoir by an Ivy League economist that includes a recipe for crack cocaine along with technical discussions of Karl Marx, Ludwig von Mises, Friedrich Hayek, and Albert O. Hirschman.

Born in 1948 and raised working class on Chicago's predominantly black South Side, Loury tells a story of self-invention, ambition, hard work, addiction, and redemption that channels Benjamin Franklin's Autobiography, Richard Wright's Native Son, Saul Bellow's The Adventures of Augie March, and Milton Friedman's Capitalism & Freedom. An alternative title might have been "Rise Above It!," the slogan of a pyramid-scheme cosmetics company on which he squandered his savings as a young man in Chicago.

Now a chaired professor at Brown University and the host of The Glenn Show, a wildly popular YouTube offering, Loury worked his way through community college, Northwestern, and a Massachusetts Institute of Technology Ph.D., became the first tenured black economist at Harvard, emerged as a ubiquitous commenter on race and class in the pages of The New Republic and The Atlantic, was offered a post in the Ronald Reagan administration, and was then publicly humiliated after affairs, arrests, and addiction all became public, threatening the end of his professional and personal life. With the support of his wife, Linda Datcher Loury (herself a highly regarded economist), Alcoholics Anonymous (A.A.), and colleagues, Loury managed to rise above it and not just rebuild his academic reputation and relationships with his children, but also gain a unique perspective on economics, individualism, and community.

Reason: When you say you are a black conservative, what does that mean?

Glenn Loury: Well, I think of a few things. One of them is thinking that markets get it right in terms of the resource allocation problem and that the planning instinct and centralized, politically controlled interference in theeconomy is suspect. Of course, there are exceptions. The general predisposition is that I like prices. I like laissez faire. AndI think the first and second fundamental theorems of welfare economics are true, that we get efficient resource allocation when we allow the interplay of self-interest. You know, classical liberal stuff.

That makes you a libertarian, not a conservative.

Well, I was going to go the Edmund Burke route. I was going to say not discarding everything that's been handed to me from the past generations. Respect for tradition, reverence for some of these things that we've been handed down. So when people can't define who's a man and who's a woman, I hold my wallet. I'm a little bit skeptical about this nouveau thing.

But the "black conservative" comes out of I think a reflex or reaction to the dilemma that we African Americans face as the descendants of slaves, a marginal population disadvantaged in various ways and struggling for equality, dignity, inclusion, freedom.

I think there's a trap in that situation: the trap of falling into a status of victim and of looking to the other, the white man, the system to raise our children and deliver us from the challenge which everybody faces of living life in good faith, of, as Jordan Peterson puts it, standing up straight with your shoulders back. Of confronting the reality that there's some stuff that nobody can do for you. This posture of dependence, these arguments for reparations, this invocation of structural and systemic [racism], when the real questions are of responsibility and role.

In your book you cover your education in economics, but it's also a memoir that traffics a lot with addiction, both with drugs and sex. Can economics explain addictive behavior and self-destructive behavior?

Well, I think of the late Gary Becker. He has a paper on addiction. And I think of George Stigler and Becker's classic paper "De Gustibus Non Est Disputandum"—about taste there can be no dispute. They do it all in terms of intertemporal preferences, where you build up a taste for certain kinds of pleasures, and you invest in them.

Did they get it right?

No, I don't think they got it right. I thought it was reductive, closed off. [It's an] "everything's going to be optimization; we just have to find the right objective function" way of looking at the world. I much prefer [game theorist and Nobel laureate] Tom Schelling's engagement with the problems of self-command, as he called it, and addiction, which was understanding the conflict within the single individual who at one point in time would want not to smoke or to use cocaine, but at another point in time would find themselves, notwithstanding their understanding that this is not good for them, being compelled to do it nonetheless, and the strategic interaction between those two types within the same person.

Some critics of capitalism say that drug addiction is the apotheosis of capitalism, that it creates a bunch of things that enslave people. But your story, in one way, is about learning self-command and control over self-destructive behaviors. Is there a larger lesson from your struggles with addiction and your ultimate triumph over it?

Yeah, A.A. saved my life. That therapeutic community, that halfway house I lived in for five months in 1988: They saved my life. I went to meetings faithfully for years. And I abstained. I was clean and sober for five years. But I eventually drifted away from the A.A. abstinence philosophy.

I did have a period where I was very religious. I was born again. This initiated during the period when I was struggling to recover from drug addiction but persisted long after I was out of the woods. It changed my perspective. The hope, the whole experience of going through rehab and what they did, it quieted me down. I started reading the Bible even before I was professing genuine religious conviction. I started memorizing passages after I began to confess some belief, going to meetings, living within myself, a kind of humility. I'm not in control. Let go and let God.

What is the work that you're most proud of as an economist?

I think my best technical paper was published in Econometrica in 1981. It's called "Intergenerational Transfers and the Distribution of Earnings." It applied what at the time were state-of-the-art technical methods in dynamic optimization and the behavior of dynamic stochastic systems to the problem of inequality. It formalized the idea that young people depend on the resources available to their parents, in part, to realize their productive potential as workers and economic agents. Investments made early in life by parents in children affect the productivity of children later in life. That productivity is also dependent on other factors beyond parental control that are random, but it depends on the resources that are available. There cannot be perfect markets to allow for borrowing forward against future earnings potential, so as to realize the investment possibilities. If a parent doesn't have the resources to fund the investment themselves, there's no place to go to borrow to get piano lessons for a kid who might develop into a virtuoso pianist.

As a consequence, inequality has resource allocation consequences. Some parents have a lot of resources; others have very little. But the kids all have comparable potential, and there's diminishing returns to investing in kids. The net result is that if you could move money from rich parents to poor parents and indirectly move investment in kids from rich families to poor families, the loss in the former would outweigh the gain in the latter.

Is that a rebuttal to the idea that you can rise above it on your own? Throughout your work you make a case that if we want a more equitable society, we have to do something to help kids whose parents don't have any resources.

I see them as two different realms of argument about human experience. On the one hand, I'm talking about how there can be market failures and incompleteness and informational impact. Illness and externalities and property rights are unclear, and things like that. And you can make arguments about a minimal role for government intervention to deal with public goods problems and environmental externality problems and perhaps market failures.

On the other hand, if I'm talking to an individual about how to live their life, about whether or not to delegate responsibility for their life to outside forces or to live in good faith, to take responsibility for what you do, that's existential, almost spiritual. It's how to be in the world as opposed to how the world works.

You're on college campuses now, and campuses are more fraught than they ever have been. Do you feel like that message has disappeared?

I think so, especially with the debate that's going on presently about the war in Gaza and the campus protests occupying spaces and setting up tents on the campus green and canceling graduations and seizing buildings and engaging in civil disobedience and whatnot.

But that all comes in the aftermath of the culture war that we've been fighting about critical race theory and diversity, equity, and inclusion. These arguments have been around for a while, and I've tended to be on the side of suspicion of the so-called progressive sentiment. There's too much focus on race and sex and sexuality as identities in the context of the university environment, where our main goal is to acquaint our students with the cultural inheritance of civilization. Their narrow focus on being this particular thing and chopping up the curriculum to make sure that it gets representative treatment feels stifling to me, especially if you let that spill over into what can be said.

The therapeutic sentiment. The kids have these sensibilities. We have to be mindful of them. We don't want to offend. We don't want anyone to be uncomfortable. No, the whole point is to make you uncomfortable. You came thinking something that was really a very superficial and undeveloped framework for thinking; I'm going to expose you to some ideas that run against that grain, and you're going to have to learn how to grapple with them. And in your maturity, you may well return to some of these, but you will do so with a much firmer sense of exactly what it is that you're affirming. I want to educate you. I don't want to placate you. I'm not here to make you feel better.

I do think there's too much reliance on system-based accounts and much less of an embrace of responsibilities that we as individuals have in our education, our politics, our social and economic lives.

What is the case against affirmative action?

The case against affirmative action: It's unfair to people who are disfavored. They didn't do anything to be in the group that you decided you wanted to put your thumb on the scale for. It has concerning incentive problems. If you belong to the favorite group, it's OK to have a B average and be in the 70th percentile of test takers. And you can get into UCLA or Stanford or Yale if you're black. But if you're white, you better have an A-minus average. And you'd better be at the 90th percentile of the test takers.

The systematic implementation of affirmative action amplifies the concerns that one might have about stigmatizing African Americans who would be presumed to be beneficiaries. This is the classic complaint of [Supreme Court Justice] Clarence Thomas, that his Yale law degree isn't worth anything because it's got an asterisk on it because of affirmative action.

There's something undignified about not being held to the same standard as other people and everybody assuming that because of the sufferings of your ancestors you're somehow in need of a special dispensation.I don't regard that as equality. You're not standing on equal ground when you're dependent upon such a dispensation. In the case of affirmative action, it's a Band-Aid. You're treating a symptom and not the underlying cause. The underlying reality is there are population differences in the express[ed] productivity of the agents in question. The African Americans, on average, are producing fewer people in relative numbers who are exhibiting these kinds of skills that your instruments of assessment are intended to measure. And if you don't remedy that problem, you're never going to get truly to equality.

Where are these population differences coming from? Is it primarily an effect of cultural change? Is it inherited differences in economic status and opportunity? Is it genetic?

I don't think it's genetic, though I can't rule out that genetics could have an effect. I'm just not persuaded by the evidence of the early childhood developmental stuff. I don't underestimate the differences in the effectiveness of primary and secondary education. This is not just race. This is race and class and geography and whatnot. I think we'd do ourselves as a society a lot of good if we were to follow the sort of wholesale reform movement in K-12, including charter schools and more competition to the union-dominated public provision sector of that part of our social economy.

But culture is a tough one. I give a lot of evidence indirectly in my memoir about the effects of culture on life experience. The culture that nurtured me coming up in Chicago had its positives. It also had its norms, values, ideals, what a community affirms as being a life well lived, how people spend their time, about parenting, things of this kind.

I read this book by two Asian sociologists, Min Zhou and Jennifer Lee, called The Asian American Achievement Paradox, and it attempts to explain, based on interview data from a couple hundred families in Southern California, how it is that these Asian communities are able to send their youngsters to places like Harvard and Stanford in such large numbers. And it basically makes a cultural argument. One of the chapters is entitled "The Asian F." It turns out that the Asian F is an A-minus, according to some of their respondents. I don't think you can discount the importance of that kind of cultural reinforcement, because at the end of the day what matters is how people spend their time.

You're a critic of race-based policies, but you also get kind of pissed when people dismiss the black experience. You say being a black American is a part of your identity. Is there a way for us to bring our individual cultural and ethnic heritage to the conversation that doesn't divide us or put us in one group or another?

We all have a story. We all have a narrative and a cultural inheritance. And yet underneath we are kind of all the same. Our struggles are comprehensible to each other, and our triumphs and our failures are things that we can relate to as human beings. And that's how we should be relating to each other.

I'm in my 70s now, and I've just written a book about my life. So who am I? What does it amount to? I'm the kid that really did grow up immersed in an almost exclusively black community on the South Side of Chicago. The music that I listened to, the food that I ate, the stories that I was told and that I told to my own children in turn. These things are related to the history, the struggles and triumphs, the dreams and hopes of African-American people. That's a part of who I am. And it annoys me when people attempt to say "get over it" to me. They're not respecting me when they tell me that race is not a deep thing about people.

It's a superficial thing, I grant you that. I grant you the melanin in the skin, the genetic markers that are manifest in my physical presentation, don't add up to very much. But the dreams of my fathers and others, the lore, the narrative about who "we" are, that's not arbitrary and it's not trivial. And it seems to me sociologically naive in the extreme to just want to move past that. That's a part of who people actually are.

But I struggle with this, because I also want to tell my students not to wear that too heavily, not to let it blinker them and prevent them from being able to engage with, for example, the inheritance of European civilization in which we are embedded. That's also your inheritance. Tolstoy is mine. Einstein is mine. And yours. I want to say to youngsters of whatever persuasion: Don't be blinkered. Don't be so parochial that you miss out on the best of what's been written and thought and said in human culture.

This interview has been condensed and edited for style and clarity.

The post Glenn Loury on Economics, Black Conservatism, and Crack Cocaine appeared first on Reason.com.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It's time to repeal the whole thing.

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

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

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

"In 2016," Harvard law professor Laurence Tribe writes, quoting Democracy Docket's Marc Elias, "Donald Trump seemed to pull an inside straight by narrowly winning" Michigan, Pennsylvania, and Wisconsin "while losing the popular vote by 3 million. We now know Trump committed 34 felonies to win that election. Without these crimes, he seems almost certain to have lost to Hillary Clinton. She would have been sworn in on Jan. 20, 2017. She would have filled two Supreme Court vacancies and enacted her legislative agenda."*

Since those 34 felonies involved falsified business records that were produced in 2017, that claim is logically impossible. Yet this gloss on the former president's New York conviction echoes similarly puzzling claims by many smart and ostensibly well-informed observers. In their eagerness to embrace the prosecution's dubious "election fraud" narrative, they nonsensically assert that Trump retroactively ensured his 2016 victory by disguising a 2017 hush-money reimbursement as payment for legal services.

Shortly before the 2016 presidential election, Michael Cohen, then Trump's lawyer, paid porn star Stormy Daniels $130,000 to keep her from telling her story about sex with Trump at a Lake Tahoe hotel during a celebrity golf tournament in July 2006. When Trump paid Cohen back in 2017, prosecutors said, he caused the falsification of business records to cover up the arrangement with Daniels by misrepresenting the reimbursement as compensation for legal work. However you view that misrepresentation, it obviously had no impact on the outcome of the election. Yet Tribe, Elias, and other people bizarrely insist that it did.

"Two years shy of this country's 250th birthday," Rice University historian Douglas Brinkley said on CBS last Sunday, "12 New York jurors have convicted former president Donald Trump on 34 counts of falsifying business records in an attempt to influence the outcome of the 2016 presidential election." The dates of those records—11 invoices, 11 checks, and 12 ledger entries—ranged from February 14, 2017, to December 5, 2017. All of them were created after Trump was elected. You might expect that a historian would pay attention to chronological consistency.

You might expect the same from editorialists at major newspapers. Yet according to a May 30 Washington Post editorial, the jury found Trump "guilty of felony falsification of business records in order to influence the 2016 election." A New York Times editorial published the same day likewise claimed the jury found Trump "guilty of falsifying business records to prevent voters from learning about a sexual encounter that he believed would have been politically damaging." Barring time travel, of course, nothing Trump did in 2017 could have "influence[d] the 2016 election" or "prevent[ed] voters from learning about" that "sexual encounter" before they cast their ballots.

The same temporal difficulty is apparent in news coverage of Trump's trial. "Prosecutors will attempt to make the case that Trump falsified business records to tip the 2016 race," Al Jazeera said in April. "Trump faces 34 felony counts alleging that he falsified New York business records in order to conceal damaging information to influence the 2016 presidential election," NPR reported a week later.

Judging from some accounts of the trial's outcome, prosecutors succeeded in proving that the 2017 records reached back in time to influence the 2016 election. "Former President Donald Trump has been found guilty of 34 counts of falsifying business records to influence the outcome of the 2016 presidential election," NPR reported. The subhead of a Times story published the day after the verdict said, "The former president was convicted of 34 felony counts of falsifying business records to cover up a sex scandal that threatened to derail his 2016 campaign." The Associated Press reported that the jury found Trump "guilty of all 34 charges in a scheme to illegally influence the 2016 election through a hush money payment to a porn actor who said the two had sex."

These confounding characterizations reflect the bait and switch at the heart of the case against Trump. "We allege falsification of business records to the end of keeping information away from the electorate," Manhattan District Attorney Alvin Bragg said in January. "It's an election interference case." In his opening statement, lead prosecutor Matthew Colangelo claimed the case was about "election fraud, pure and simple."

There was nothing "pure and simple" about the case, which did not involve "election fraud" at all. Although the prosecutors repeatedly insinuated that there was something inherently criminal about trying to hide potentially damaging information from voters, that is not true. And although they averred that Cohen's payment to Daniels amounted to an illegal campaign contribution under the Federal Election Campaign Act (FECA), that interpretation of the statute is controversial. In any case, fronting the hush money did not constitute "election fraud," which is usually understood to mean interfering with the casting, counting, or reporting of votes.

Trump was not charged with violating FECA by soliciting Cohen's "contribution." The Justice Department declined to bring that case, probably because it would have been hard to prove that Trump "knowingly and willfully" violated the statute, given the fuzziness of the distinction between personal and campaign expenditures. Even if the deadline for prosecuting Trump under FECA had not passed, Bragg would have no authority to enforce that statute. So instead he resorted to an elaborate workaround that relied on various possible combinations of interacting statutes and questionable assumptions about Trump's knowledge and intent.

The FECA claim was just one of three dueling theories for treating Trump's alleged falsification of business records as a felony rather than a misdemeanor. The other two theories did not hinge on the assumption that the Daniels payment was illegal. And since the jurors were told they did not have to settle on any particular theory, it is not clear which one they found most compelling. Even if they split three ways on that crucial point, they were still allowed to reach a guilty verdict.

All of this is pretty confusing, so it is not surprising that many people have inaccurately described the meaning of the verdict, especially since Bragg and his underlings repeatedly misrepresented the nature of the case. But it is surprising that so many people who should know better have described the verdict in a way that could not possibly be true.

*CORRECTION: This post has been revised to clarify that Tribe was quoting Elias.

The post Laurence Tribe Bizarrely Claims Trump Won the 2016 Election by Falsifying Business Records in 2017 appeared first on Reason.com.

Last January, Manhattan District Attorney Alvin Bragg summed up his case against Donald Trump this way: "We allege falsification of business records to the end of keeping information away from the electorate. It's an election interference case."

That gloss made no sense, because the records at the center of the case—11 invoices, 11 checks, and 12 ledger entries that allegedly were aimed at disguising a hush-money reimbursement as payment for legal services—were produced after the 2016 presidential election. At that point, Michael Cohen, Trump's lawyer, had already paid porn star Stormy Daniels $130,000 to keep her from talking about her alleged 2006 sexual encounter with Trump, and Trump had already been elected. The prosecution's case against Trump, which a jury found persuasive enough to convict him on all 34 counts yesterday, was peppered with temporal puzzles like this one.

A New York Times editorial concedes that "many experts" have "expressed skepticism about the significance of this case and its legal underpinnings, which employed an unusual legal theory to seek a felony charge for what is more commonly a misdemeanor." Yet the Times also claims the jury found Trump "guilty of falsifying business records to prevent voters from learning about a sexual encounter that he believed would have been politically damaging." How did records created in 2017 "prevent voters from learning" about the Daniels tryst before they cast their ballots the previous year?

The editorial's characterization of Cohen's payment to Daniels is confounding for a similar reason. "A payoff like this is not illegal by itself," the Times concedes. "What makes it illegal is doctoring business records to mask its true purpose, which prosecutors said was to hide the story from the American people to help Mr. Trump get elected." Again, the "doctoring" of business records happened in 2017. Contrary to what the Times claims, it did not retroactively make the Daniels payment "illegal."

The Times also says the verdict "establishes that Mr. Trump committed crimes in hiding pertinent information about himself from the American people for the purpose of influencing the 2016 presidential election." The verdict does not establish that. Trump was not charged with breaking the law by instructing Cohen to pay off Daniels. And while the contentious characterization of that payment as an illegal campaign contribution figured in one theory for treating the falsification charges as felonies rather than misdemeanors, the other two theories did not hinge on the assumption that the payoff was illegal.

Since the jurors were instructed that they did not need to settle on any particular theory, it is not clear that they unanimously accepted the idea that Trump "committed crimes in hiding pertinent information about himself from the American people for the purpose of influencing the 2016 presidential election." That description, however, is consistent with the prosecution's dubious "election fraud" narrative, which falsely implied that "hiding pertinent information about himself" was inherently criminal.

Although it seems clear that the jury accepted that narrative, even the prosecutors sometimes forgot what they claimed the case was about. They argued that Trump violated an obscure, rarely invoked state law by conspiring with Cohen to influence the presidential election "by unlawful means." They further argued that Trump caused the falsification of business records with the intent of aiding or concealing that crime, which is the element that transformed the charges into felonies. But some versions of that theory were logically impossible.

According to one theory of "unlawful means," Trump facilitated a violation of New York tax law by allowing Cohen to falsely report his reimbursement as income. But since Cohen filed those allegedly fraudulent tax returns in 2018, after Trump had been president for more than a year, his misrepresentation could not possibly have helped Trump win the election.

Under another theory, Trump falsified business records to conceal the falsification of other business records, including the 1099-MISC forms in which the Trump Organization inaccurately described Cohen's reimbursement as income. Since the 1099 forms were issued after the election, it is hard to see how they could have been aimed at ensuring Trump's victory.

These logical difficulties were just one of several reasons to question the prosecution's case, which relied on convoluted theories involving interacting statutes and questionable assumptions about Trump's knowledge and intent. But instead of zeroing in on those weaknesses, Trump's lawyers, presumably at his behest, were determined to deny everything, starting with Daniels' story about sex with Trump at a Lake Tahoe hotel during a celebrity golf tournament in July 2006.

That strategy invited embarrassingly detailed testimony by Daniels, who described a presumptuous Trump abruptly disrobing while she was in the bathroom before engaging in a "brief," condomless sexual encounter "in the missionary position." Contrary to her previous accounts, Daniels implied that the sex was less than fully consensual, citing "an imbalance of power," noting the presence of a bodyguard at the door to Trump's hotel suite, saying Trump's failure to use a condom worried her, and describing her own mental state as hazy, although she added that she was not drunk and had not been drugged.

None of this was legally relevant. When it came to the questions of whether Trump had caused the falsification of business records and his intent in doing so, it did not matter exactly what happened in that hotel suite. Even if Daniels had made the whole thing up, Trump still would have been keen to keep her quiet, whether for personal reasons, business reasons, political reasons, or some combination of the three.

The defense team also insisted that Trump really thought he was paying Cohen for legal work, even though Trump had publicly admitted that he reimbursed Cohen for the Daniels payment. And Trump's lawyers disputed that he "knew about this payment" at the time, even though it defies belief to suppose that Cohen, who was eager to please Trump and conferred with him frequently, would have hatched this scheme on his own, or that he would have fronted $130,000 of his own money without the promise of reimbursement.

Whether Trump approved the misleading records related to Cohen's reimbursement, as Cohen claimed, is less clear. Trump's lawyers hammered at Cohen's credibility on that point, saying jurors should not trust a convicted felon, disbarred lawyer, and admitted liar with a powerful grudge against his former boss. But because they were also implausibly claiming that Cohen lied when he said Trump approved the Daniels payoff, the jurors may have discounted any doubts about the veracity of Cohen's account.

If Trump had been willing to concede some of the prosecution's allegations, his lawyers could have focused on the shaky legal argument for charging him with felonies. They not only failed to do that in a cogent way; they insisted on jury instructions that ruled out convicting Trump of misdemeanors rather than felonies.

"Instead of telling a simple story, Mr. Trump's defense was a haphazard cacophony of denials and personal attacks," defense attorney and former federal prosecutor Renato Mariotti observes. "That may work for a Trump rally or a segment on Fox News, but it doesn't work in a courtroom. Perhaps Mr. Trump's team was also pursuing a political or press strategy, but it certainly wasn't a good legal strategy. The powerful defense available to Mr. Trump's attorneys was lost amid all the clutter."

The post The Prosecution's Story About Trump Featured Several Logically Impossible Claims appeared first on Reason.com.

After deliberating for a little more than a day, a Manhattan jury on Thursday found Donald Trump guilty of falsifying 34 business records to aid or conceal "another crime," an intent that turns what would otherwise be misdemeanors into felonies. If you assumed that the jury's conclusions would be driven by political animus, this first-ever criminal conviction of a former president is the result you probably expected in a jurisdiction where Democrats outnumber Republicans by 9 to 1. But in legal terms, the quick verdict is hard to fathom.

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. Given the puzzles posed by the charges, you would expect conscientious jurors to spend more than an afternoon, a morning, and part of another afternoon teasing them out.

Manhattan District Attorney Alvin Bragg's case against Trump stemmed from the $130,000 that Michael Cohen, then Trump's lawyer and fixer, paid porn star Stormy Daniels shortly before the 2016 presidential election to keep her from talking about her alleged 2006 sexual encounter with Trump. When Trump reimbursed Cohen in 2017, prosecutors said, he tried to cover up the arrangement with Daniels by pretending that he was paying Cohen, whom he had designated as his personal attorney, for legal work.

Cohen testified that Trump instructed him to pay off Daniels and approved the plan to mischaracterize the reimbursement. Cohen was the only witness who directly confirmed those two points, and the defense team argued that jurors should not trust a convicted felon, disbarred lawyer, and admitted liar with a powerful grudge against his former boss. But even without Cohen's testimony, there was strong circumstantial evidence that Trump approved the payoff and went along with the reimbursement scheme.

The real problem for the prosecution was proving that Trump falsified business records  with "an intent to commit another crime or to aid or conceal the commission thereof"—the element that was necessary to treat the misleading documents as felonies. Prosecutors said the other crime was a violation of Section 17-152, an obscure, little-used provision of the New York Election Law. Section 17-152 makes 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 prosecutors never settled on any particular explanation of "unlawful means," and Juan Merchan, the judge presiding over the trial, told the jurors they could find Trump guilty even if they could not agree on one.

According to one theory, Cohen made an excessive campaign contribution, thereby violating the Federal Election Campaign Act (FECA), when he fronted the money to pay Daniels. Cohen pleaded guilty to that offense in 2018 as part of an agreement that also resolved several other, unrelated federal charges against him. Cohen therefore had a strong incentive to accept the characterization of the Daniels payment as an illegal campaign contribution. While jurors heard about Cohen's guilty plea during the trial, CNN notes, Merchan instructed them that they should consider it only "to assess Cohen's credibility and give context to the events that followed, but not in determining the defendant's guilt."

It is unclear whether Trump violated FECA by soliciting Cohen's "contribution," a question that hinges on the fuzzy distinction between personal and campaign expenditures. Given the uncertainty on that point, it is plausible that Trump did not think the Daniels payment was illegal, which helps explain why he was never prosecuted under FECA: To obtain a conviction, federal prosecutors would have had to prove that he "knowingly and willfully" violated the statute.

The New York prosecutors said Cohen and Trump conspired to promote his election through "unlawful means." Under New York law, a criminal conspiracy requires "a specific intent to commit a crime." Trump's understanding of FECA was relevant in assessing whether he had such an intent, meaning he recognized the nondisclosure agreement with Daniels as "unlawful means." Trump's understanding of FECA therefore also was relevant in assessing whether he falsified business records with the intent of covering up "another crime."

That theory assumed three things: 1) that Trump recognized the Daniels payment as a FECA violation; 2) that he knew about Section 17-152, a moribund, rarely invoked law; and 3) that he anticipated how New York prosecutors might construe Section 17-152 in light of FECA. The first assumption is questionable, the second is unlikely, and the third is highly implausible. Yet you would have to believe all three things to conclude that Trump approved a plan to misrepresent his reimbursement of Cohen as payment for legal services with the intent of covering up a FECA-dependent violation of Section 17-152.

According to a second theory, Trump facilitated a violation of New York tax law by allowing Cohen to falsely report his reimbursement as income. Although that violation is described as "criminal tax fraud," Merchan said it did not matter that Cohen's alleged misrepresentation resulted in a higher tax bill. The judge noted that it is illegal to submit "materially false or fraudulent information in connection with any return," regardless of whether that information benefits the taxpayer.

Putting aside that counterintuitive definition of tax fraud, this theory required believing that Trump, when he reimbursed Cohen, not only contemplated what would happen when Cohen filed his returns the following year but also thought that "unlawful means" somehow would influence an election that had already happened. The logic here was hard to follow.

Likewise with the third theory of "unlawful means." Prosecutors suggested that Trump's falsification of business records was designed to aid or conceal the falsification of other business records. CNN reported that the latter records could involve, among other things, the corporate bank account that Cohen created to pay Daniels, Cohen's transfer of the money to Daniels' lawyer, or the Trump Organization's 1099-MISC forms for the payments to Cohen.

Since the 1099 forms were issued after the election, it is hard to see how they could have been aimed at ensuring Trump's victory. And although the other records predated the election, this theory involves a weird sort of bootstrapping.

Prosecutors said the records related to Cohen's dummy corporation, for example, were falsified because they misrepresented the nature and purpose of that entity, which by itself is a misdemeanor. That misdemeanor was the "unlawful means" by which Trump allegedly sought to promote his election, another misdemeanor. And because Trump allegedly tried to conceal the latter misdemeanor by falsifying the records related to Cohen's reimbursement, those records are 34 felonies instead of 34 misdemeanors.

The theory that Trump falsified business records to conceal the falsification of business records was "so circular as to produce vertigo in the jury room," George Washington University law professor Jonathan Turley said. If so, the jurors seem to have quickly recovered from their queasiness. They accepted either this dubious theory, one of the others, or possibly some combination of them. Since unanimity was not required, it is possible that some jurors bought the FECA theory, some preferred the double falsification theory, and some concluded that the case was clinched by a tax fraud with no pecuniary benefit.

To disguise the difficulties with its dueling theories, the prosecution averred that Trump committed "election fraud" when he directed Cohen to pay Daniels for her silence, thereby concealing information that voters might have deemed relevant in choosing between him and Hillary Clinton. "This was a planned, coordinated, long-running conspiracy to influence the 2016 election, to help Donald Trump get elected through illegal expenditures, to silence people who had something bad to say about his behavior," lead prosecutor Matthew Colangelo told the jury in his opening statement. "It was election fraud, pure and simple."

During his summation, prosecutor Joshua Steinglass called the nondisclosure agreement with Daniels "a subversion of democracy." He said it was an "effort to hoodwink the American voter." He told "a sweeping story about a fraud on the American people," as The New York Times put it. "He argue[d] that the American people in 2016 had the right to determine whether they cared that Trump had slept with a porn star or not, and that the conspiracy prevented them from doing so."

Did the American people have such a right? If so, Trump would have violated it even he had merely asked Daniels to keep quiet, perhaps by appealing to her sympathy for his wife. If Daniels had agreed, the result would have been the same. As the prosecution told it, that still would amount to "election fraud," even though there is clearly nothing illegal about it.

The jurors evidently bought this cover story. During deliberations, they revisited the testimony of former National Enquirer publisher David Pecker, a Trump buddy whom prosecutors implicated in that "long-running conspiracy to influence the 2016 election." Pecker's arrangement with Trump, which he described as mutually beneficial, was not the basis for any of the charges against Trump. But his testimony reinforced Bragg's legally dubious claim that Trump engaged in "election interference" when he sought to avoid bad press.

Pecker said he agreed to help Trump in several ways. He would run positive stories about Trump and negative stories about his opponents. He also would keep an eye out for potentially damaging stories about Trump and alert Cohen to them. The latter promise resulted in two agreements that the Enquirer negotiated with Dino Sajudin, a former Trump Tower doorman who falsely claimed that Trump had fathered a child with a woman hired to clean the building, and former Playboy Playmate Karen McDougal, who described a year-long affair with Trump. After paying $30,000 to Sajudin and $150,000 to McDougal for exclusive rights to their stories, the Enquirer sat on them.

Again, Trump was not charged in connection with any of this, and much of what Pecker did was constitutionally protected, albeit journalistically unethical. The fact that the jury nevertheless wanted to be read excerpts from Pecker's testimony suggests they accepted the prosecution's commodious understanding of "election fraud," which did not necessarily require any actual lawbreaking, let alone any attempt to interfere with the casting, counting, or reporting of votes.

In short, there was a glaring mismatch between the charges against Trump and what prosecutors described as the essence of his crime, which is not a crime at all. Since they could not charge him with "election fraud" merely because he tried to hide embarrassing information, they instead built a convoluted case that relied on interacting statutes and questionable assumptions about Trump's knowledge and intent.

That approach suggests several possible grounds for appeal. It is not clear, for example, whether a violation of federal campaign finance regulations, even when filtered through Section 17-152, counts as "another crime" under the state law dealing with falsification of business records. Nor is it clear that Section 17-152 applies in the context of a federal election, where federal law generally pre-empts state law. There are also questions about what is required to prove that Trump had "an intent to defraud" when he signed the checks to Cohen.

Bragg's predecessor, Cyrus R. Vance Jr., after lengthy consideration of possible state charges based on the Daniels payment, decided they were too legally iffy to pursue. Mark Pomerantz, a former prosecutor in Vance's office who worked on the Trump investigation, concluded that "such a case was too risky under New York law." In a 2023 book, Pomerantz noted that "no appellate court in New York had ever upheld (or rejected) this interpretation of the law."

Last week, New York Times columnist David French worried about the consequences of a conviction that is overturned on appeal. "Imagine a scenario in which Trump is convicted at the trial, Biden condemns him as a felon and the Biden campaign runs ads mocking him as a convict," he wrote. "If Biden wins a narrow victory but then an appeals court tosses out the conviction, this case could well undermine faith in our democracy and the rule of law." In his desperation to prevent Trump from reoccupying the White House, Bragg has already accomplished that.

The post Trump's Conviction Suggests Jurors Bought the Prosecution's Dubious 'Election Fraud' Narrative appeared first on Reason.com.

"At the core of every story we want to tell is a person," says Lee Gentry, founder of Night Visions, a firm that provides custom AI content to adult entertainers and agencies that run OnlyFans accounts. "We've been focusing very, very carefully on persisting the human form and getting that as accurate as possible."

Throughout recorded history, human beings have used emerging technologies to depict both sexual interactions and nude bodies—usually women. Shortly after the invention of movies, stag films were produced and traded in an underground market. Later, films with fleshed-out storylines would be shown in theaters, including the notorious porno-chic picture Deep Throat. VHS was quickly adopted by lower-budget adult film producers. DVD and widespread internet access further lowered barriers to both distribution and consumption of sexual content.

Historically, most of these films were made by men, for men—women directors and producers such as Ann Perry and Candida Royalle were outliers. But more recently, women have been able to take control of the distribution of their own images. Most of the erotic images and videos made today are made by the subjects themselves and distributed directly to consumers via clip sites and fan sites such as OnlyFans.

As you read this, adult performers are racing to stay ahead of the emerging technology—which includes Sora, a model with the ability to generate minute-long videos—by creating their own chatbots and on-demand image services.

***

When I started performing in adult films in the mid-2000s, there was a focus on authenticity and availability. Consumers not only wanted to know that our orgasms were real; they wanted to know our personalities—something social media made possible. Real-time feedback from subscribers (or followers, or "friends," depending on the platform) told us which facets of our selves got the most traction. We, along with most users of social media—especially those who would go on to become influencers—began to lead with our most likable parts.

But where Hollywood and recording celebrities were offered verification on social media such as Twitter and Instagram, adult industry personalities were often left to fend for ourselves. This opened the door to a flood of imposters.

More than once in the early 2010s, fans came up to me at conventions to thank me for spending hours conversing with them over Facebook about their problems. They were grateful for my time and advice. It had meant so much to them. But I didn't have a Facebook account—and even if I did, I was far too busy for that. There was no way I could have done my job, had any kind of life outside of work, and spent those hours with the people who felt the need to unload their secrets and struggles into a chat window with a porn star.

But that's what users of fan sites expect today: an immediate response to messages, regardless of time of day. That, plus the work of creating custom content, pay-site content for mass distribution, and safe-for-work social media promotion, is often too much for a single creator.

Night Visions, Gentry says, is "positioning ourselves as a kind of a consensual form of concept capture." His company generates still images, based on text input, of the various content creators and adult performers who are signed up with the service. Due to the size of the company (four team members and a few contractors and advisers) this means a manual know-your-customer process that Gentry does himself.

As in professional porn studios, consent is key. Content creators coming from a background in the adult studio system, though, are keenly aware that bad actors can and will take our images and reuse them for anything from populating the more unsavory tube sites to scamming fans into sending money for fake dates or gift cards. Many of these issues are international, which makes it nearly impossible to put a stop to such practices. It's a game of Whac-A-Mole where your brand integrity and someone else's life savings are on the line.

An individual producing deepfakes may not even realize he's crossed a line. Imagine a customer who wants to see, as Gentry suggested in his demo during our conversation, a creator named Violet in a wedding dress on a beach. This customer wants to see it right now, and is willing to pay a premium. But he's in a specific kind of mood, and he isn't hearing back from Violet. Regardless, she'd need time to find the wardrobe and locate a photographer. The customer might—without considering the rights of the creator—have an AI photo generator make it for him. He might even post his creation on a forum. His desire is sated, he thinks nothing of his actions, and the creator whose likeness is used gets nothing.

***

The line between public figure and private person is already blurry in the age of social media. "Ultimately the question of whether someone is a public figure is going to be case by case," says attorney Simon Pulman. "The argument that would be made is that any kind of content creator—whether they're on YouTube or TikTok—by putting yourself into the public sphere, you are probably a public figure in some respect."

The U.S. government, true to form, has been slow to tackle the issue. January saw the introduction in Congress of H.R. 6943, which references a Department of Homeland Security report from 2020 describing more than 100,000 nonconsensual deepfake nudes. The adult workers whose bodies were used for these deepfakes are not mentioned. "Are adult performers going to get the same protections as others?" asks Pulman. "They should, but we all know how certain things are viewed by certain parts of the country."

The adult industry does utilize Takedown Piracy (a subscription service used widely by adult film producers which can digitally fingerprint AI-generated videos, search the internet for them, and send Digital Millennium Copyright Act notices) and the more altruistic Operation Minerva (which serves victims of "revenge porn" and deepfakes by giving them lower cost access to that same anti-piracy technology). But creating an authorized option is often the best way for adult entertainers to avoid such exploitation.

In May 2023, Forever Voices launched the AI companions of the Twitch streamer Amouranth and the adult star Melissa Stratton. This is around the time Eva Oh started receiving inquiries from AI companies looking to offer various synthetic versions of herself. In mid-August, I received my own inquiry from Forever Voices. After a messy incident in which the founder of Forever Voices was arrested on suspicion of arson, the company folded, and the Amouranth and Stratton links no longer work. Oh's deal and mine both fell through before our synthetic clones launched. Adult superstar Riley Reid's Clona, launched in October, is slowly bringing creators onboard; a total of three are using it at this time.

When I spoke with Eva Oh, she played me a voice message from her own synthetic clone, which she designed with the help of a third party who wants adult creators to be able to take AI technology into their own hands. Even in the five months since I heard my own voice from the test file I'd been sent by Forever Voices, the technology has improved. Oh's clone emphasizes words, and pauses—as though it is thinking—in the same way Oh pauses to think on her podcast #teakink. Oh intends to use her clone to scale her ability to mentor both other people in the trade and those outside who are interested in expanding their sexual knowledge, and she plans to keep its scope PG to PG-13 so she can access marketing tools that are unavailable to R- and X-rated products. Her digital double is there, in effect, for the type of people who reached out to a fake Facebook account to speak with an adult star.

Oh says the people who message her are varied. "It might be a 50/50 split between people wanting to do sex work better or from nothing, and people totally not interested in doing the job at all, and just trying to find other ways to live their lives."

***

Sex workers, due to the constant practice of marketing ourselves, may be better suited than most to create personal artificial intelligences. Creators of AI clones must ask themselves, "Who am I? Who do I want to present? What little compartment of mine do I want to sell?" This is something adult creators were doing long before the internet took off.

They're also more used to working with and around blurred lines between their real personality and their online persona. About her own AI, Oh says, "It's not me anymore, but yet it exists. What am I going to start to think is me? And what am I going to start to do with that?"

Where Hollywood stars have historically been thought of as playing characters in films, and only began to casually divulge their personal lives much later—while audiences maintained separation between their roles in film and TV and the actors as human beings—adult workers have historically been thought to be the fantasies we inhabit on screen or in session. When I played Melodie Gore's roommate in Vivid Alt's 2007 release Man's Ruin, I received messages years later inquiring about what it had been like to live together.

The French philosopher Jean Baudrillard had a handful of comments on pornography in Simulacra and Simulation, including: "Pleasure in the microscopic simulation that allows the real to pass into the hyperreal. (This is also somewhat the case in porno which is fascinating more on a metaphysical than on a sexual level.)" He could have expanded those thoughts into an entire book. We exist at the cutting edge of both technology and the spiraling rabbit hole of representations Baudrillard described.

For Oh, full charge of her AI representation is less a form of ownership than a form of creation. During our call, she spoke of her AI as something separate from herself that she will lose control over, sounding oddly like a mother speaking about her children.

While Oh is focused at this moment on creating the chatbot, she knows her next step—video—and has higher hopes for what she might be able to do with the technology: art. Oh has been imagining an installation set in a dystopian world, where, much like in 1982's Stephen Sayadian film Café Flesh, human interaction has fallen by the wayside. As the emcee in Sayadian's cafe says, "Hey, what the heck folks, this is art, this is entertainment." In Oh's vision, what we can call the hyperhuman—the human seeking to engage directly with other humans—is not only an outlier but something that may become startlingly rare as AI technology becomes more ubiquitous.

The post The Future of Porn Is Consensual Deepfakes 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.

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

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

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

Compelled Speech and Court Rulings

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

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

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

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

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

Yesterday, the Supreme Court denied the stay request.

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

Ignoring Porn-Law Precedent 

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

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

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

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

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

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

More from Geidner:

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

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

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

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

What's Next for H.B. 1181?

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

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

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

More Sex & Tech News

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

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

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

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

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