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Google just lost a massive antitrust trial over its sprawling search business, as US district judge Amit Mehta released his ruling, showing that he sided with the US Department of Justice in the case that could disrupt how billions of people search the web.
"Google is a monopolist, and it has acted as one to maintain its monopoly,” Mehta wrote in his opinion. “It has violated Section 2 of the Sherman Act.”
The verdict wil
Google just lost a massive antitrust trial over its sprawling search business, as US district judge Amit Mehta released his ruling, showing that he sided with the US Department of Justice in the case that could disrupt how billions of people search the web.
"Google is a monopolist, and it has acted as one to maintain its monopoly,” Mehta wrote in his opinion. “It has violated Section 2 of the Sherman Act.”
The verdict will likely come as a shock to Google, which had long argued that punishing Google for being the best in search would be "unprecedented" and frequently pointed to the DOJ's lack of direct evidence. However, Mehta found the limited direct evidence compelling, especially "Google’s admission that it does not 'consider whether users will go to other specific search providers (general or otherwise) if it introduces a change to its Search product.'"
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The US Department of Justice sued TikTok today, accusing the short-video platform of illegally collecting data on millions of kids and demanding a permanent injunction "to put an end to TikTok’s unlawful massive-scale invasions of children’s privacy."
The DOJ said that TikTok had violated the Children’s Online Privacy Protection Act of 1998 (COPPA) and the Children’s Online Privacy Protection Rule (COPPA Rule), claiming that
The US Department of Justice sued TikTok today, accusing the short-video platform of illegally collecting data on millions of kids and demanding a permanent injunction "to put an end to TikTok’s unlawful massive-scale invasions of children’s privacy."
The DOJ said that TikTok had violated the Children’s Online Privacy Protection Act of 1998 (COPPA) and the Children’s Online Privacy Protection Rule (COPPA Rule), claiming that TikTok allowed kids "to create and access accounts without their parents’ knowledge or consent," collected "data from those children," and failed to "comply with parents’ requests to delete their children’s accounts and information."
The COPPA Rule requires TikTok to prove that it does not target kids as its primary audience, the DOJ said, and TikTok claims to satisfy that "by requiring users creating accounts to report their birthdates."
The creators behind BASEDPolitics are suing over a measure meant to either ban TikTok or force its divestiture. President Joe Biden signed the (highly unconstitutional) bill in April, and it already faces several legal challenges, including one filed by TikTok and one filed by eight TikTok content creators. Like those efforts, the BASEDPolitics suit focuses on the law's affront to free speech. "We wanted to file a lawsuit that was specifically fo
"We wanted to file a lawsuit that was specifically focused on free speech and the First Amendment from the creators' perspective, rather than some of the other, business-related concerns in other lawsuits," Brad Polumbo of BASEDPolitics tells me. "We also wanted to emphasize the political speech aspect, rather than other creators who are more in the mold of everyday 'influencers,' and show that right-leaning/non-liberal voices are being impacted by this as well."
Polumbo hopes the lawsuit will "help Republicans and conservatives see why this ban is inconsistent with the free speech values they say they care about."
TikTok Ban: Not Just Bad for Lifestyle Influencers or Leftists
BASEDPolitics is a nonprofit media organization run by Polumbo, Hannah Cox, and Jack Hunter. Its goal is to introduce young people "to the ideas of free market capitalism and individual liberty."
TikTok helps them reach audiences they likely wouldn't reach on other platforms, says Cox. "Both Brad and I have large platforms across social media, but TikTok offers a unique audience that can't be found elsewhere," she tells me. "Most on TikTok loathe Meta and X, so if they weren't on TikTok it's unlikely they'd engage meaningfully elsewhere. Their algorithm is also more open, and it enables us to reach many people who would never encounter us otherwise."
There's a popular perception that TikTok either isn't a place for political speech or is an asset only for left-leaning political speakers. But the BASEDPolitics team hasn't found this to be true at all.
"Anyone who thinks TikTok is all just frivolous content is probably not a user," says Polumbo. "There's substantive conversation happening on there on every issue under the sun, from religion to dating to politics." And while "TikTok is dominated by left-leaning content," it's also "a much more politically diverse ecosystem than many might think."
Their suit focuses not just on how a ban would negatively affect BASEDPolitics but on its larger repurcussions for civil liberties.
"We felt the need to stand up as individuals who are using TikTok to effectively fight back against the government and educate others on the principles of free market capitalism, individual rights, and limited government," says Cox, who sees all sorts of "incredible work being done on TikTok—both politically and non politically."
"People are pushing back on war…they're questioning our monetary system, they're highlighting injustices carried out by our government," she says. "Outside of politics, TikTok is now the top search engine for young people. They're getting mental health resources from therapists, DIY help from retired grandpas, nutrition information they can't get from their health insurance and pharmaceutical companies. The list is endless."
Propaganda Is Free Speech
BASEDPolitics is being represented by the Liberty Justice Center. The suit seeks a declaration that the anti-TikTok law—officially known as the Foreign Adversary Controlled Applications Act—is unconstitutional and a block on the U.S. Attorney General enforcing it.
The law makes it illegal for Americans to "access, maintain, or update" apps linked to "foreign adversaries," a category that the measure defines to include TikTok. TikTok will be banned if TikTok parent company ByteDance does not sell it by January 19, 2025. The law also allows the president to declare other apps off limits (or force their sale) if they're based out of any country declared a foreign adversary or if anyone based in these countries owns a fifth or more of the app.
"The Act violates the First Amendment because it bans all speech on TikTok—even though all, or nearly all, of that speech is constitutionally protected," the Liberty Justice Center states in a press release. "The lawsuit also argues that lawmakers' justifications for the ban—national security and protecting Americans from propaganda—cannot justify the infringement on users' First Amendment rights, because there is no evidence that TikTok threatens national security or that a complete ban is necessary to address whatever threat it might pose. Furthermore, the lawsuit argues, the First Amendment does not allow the government to suppress 'propaganda,' which is simply speech."
Cox elaborates on this point in a video about the lawsuit, noting that people act like TikTok is unique because it could be linked to the Chinese Communist Party. Yet "you have tons of state-owned media that is available in the U.S.," points out Cox, citing the BBC and Russia today as two examples.
In the U.S., we don't ban speech merely because another government—even one we find alarming—might endorse it. So even if some of the more speculative fears about China and TikTok are true, that should be no reason to ban it entirely.
Cox says this sort of thing is more befitting of "communist dystopias" such as North Korea.
There's been some (overhyped) concern about TikTok suppressing content that could offend Chinese authorities. But even if that's true, it wouldn't justify a ban either.
"As First Amendment supporters, we also support the legal right of TikTok as a private platform to ban or restrict whatever kinds of content it wants even if we personally resent their choices or think it's unfair," Polumbo adds.
Larger Anti-Speech and Anti-Tech Trends
"If enacted, this would constitute one of the most egregious acts of censorship in modern American history," Cox and Polumbo write, placing the TikTok ban in the midst of larger anti-speech and anti-tech trends:
In the federal and state governments, both Republicans and Democrats have become increasingly anti-free speech in recent years. We've seen a plethora of bills that have sought to strip Americans and their businesses of their right to free expression, many of them presented as necessary to rein in "Big Tech." The TikTok ban is merely the latest iteration of this trend.
The truth is that government actors who want to preserve and expand their own power have a vital interest in taking over the tech industry. Of course the government has yet to see a thriving free market industry it doesn't want to get its hands on. But social media in particular poses a unique threat to the government—which has for decades been able to control the flow of information and the narrative on political issues via its cozy relationship with many in the mainstream media.
We've seen the Biden Administration seek to lasso social media in a similar fashion numerous times over the past couple of years thanks to the bombshell reports released under both the Twitter Files and the Facebook Files—not to mention the government-wide conspiracy to shadowban information on our own government's funding of the Wuhan lab….
The obvious point is that government officials do not want the American people to be able to freely share information, especially information that makes them look bad.
The bottom line, they suggest, is that "if they can control the flow of information, they can control you."
"Social media poses a unique threat to politicians and the government, and that's because for decades…the government could control the narrative, and they could control the narrative because they mostly control the mainstream media," says Cox in her video. "As social media has grown, they have lost more and more control of the narrative, because they are no longer the gatekeepers, and they don't control the gatekeepers anymore."
"Ultimately the war on Big Tech is a war on free speech and the government desperately trying to regain control of the narrative the [mainstream media] granted them for decades," she tells me.
The BASEDPolitics team also pushes back on the idea that this isn't really a ban because it gives ByteDance the option to sell. "In effect, the legislation is an outright ban on the app, because Bytedance, TikTok's parent company, is likely legally prohibited from selling the TikTok algorithm by China's export control laws," write Cox and Polumbo. "And, TikTok without its algorithm is not really TikTok at all."
• Antitrust warriors come for AI: The Federal Trade Commission is subpoenaing Microsoft over its deal with the artificial intelligence startup Inflection. Meanwhile, the Justice Departments "is poised to investigate Nvidia and its leading position in supplying the high-end semiconductors underpinning AI computing," Politicoreports.
• "When a new technology arises, it matters greatly whether technocrats align themselves with dynamists or with reactionaries," Virginia Postrel tellsMiller's Book Review. "We were lucky in the 1990s that both political parties included people with positive views of the emerging internet, including people with a dynamist understanding of its potential. The opposite is true today. Reactionaries are in ascendance in both parties, and technocrats are listening to them. Plus there are always businesses seeking to use regulation to hinder their competitors. The result is that instead of regarding AI as an exciting potential tool for enhancing human creativity and fostering prosperity, our public discourse tends to frame it as at best a job-destroyer and at worst the Terminator."
• A federal judge has rejected North Carolina's attempt to mandate that abortion pills must be taken in a doctor's office and that their prescription requires an in-person followup visit 72 hours after the medication is taken. The ruling means that women "can again take the medicine mifepristone at home and can obtain the medication from a pharmacy or by mail," WUNC reports.
• "Because 'misinformation' is overwhelmingly identified by focusing on information that contradicts the consensus judgements of experts and elites within society's leading knowledge-generating institutions, the focus on misinformation ignores how such institutions can themselves be deeply dysfunctional and problematic," writes Dan Williams in a very good (and lengthy) post at Conspicuous Cognition. "This includes science, intelligence agencies, mainstream media, and so on."
Last November, federal prosecutors invited Ilene Wahpeta, an incarcerated woman, to give a victim impact statement at the sentencing of Andrew Jones, a Bureau of Prisons (BOP) employee who was convicted of sexually assaulting three other inmates. Less than a year later, the U.S. government is fighting a petition Wahpeta filed for early release based on the same allegations that prosecutors previously invited her to speak about, arguing she wasn't
Last November, federal prosecutors invited Ilene Wahpeta, an incarcerated woman, to give a victim impact statement at the sentencing of Andrew Jones, a Bureau of Prisons (BOP) employee who was convicted of sexually assaulting three other inmates.
Less than a year later, the U.S. government is fighting a petition Wahpeta filed for early release based on the same allegations that prosecutors previously invited her to speak about, arguing she wasn't a named victim in the criminal case against Jones and that her claims aren't credible.
The Justice Department announced in 2022, amid several damning investigations into sexual assault by staff in federal prisons, that it was working to expand a program for early release to include women who'd been abused behind bars, but Wahpeta's case is one example of what criminal justice advocates say is the Justice Department undercutting that policy. Lawyers representing incarcerated women filing for early release based on their status as sexual assault survivors say federal prosecutors are now routinely fighting to disqualify their clients because of an unreasonably narrow definition.
At the heart of the issue is a new policy passed in April 2023 by the U.S. Sentencing Commission that makes federal inmates who were sexually abused by staff eligible for compassionate release. Compassionate release is a policy that allows federal inmates to petition for early release for "extraordinary and compelling" reasons, such as terminal illness or family emergencies. However, the expansion included a major caveat that was added at the recommendation of the Justice Department. To be eligible, a prisoner's claim of sexual abuse "must be established by a conviction in a criminal case, a finding or admission of liability in a civil case, or a finding in an administrative proceeding."
Families Against Mandatory Minimums (FAMM), a criminal justice advocacy group, has been coordinating legal representation for women who were formerly incarcerated at Federal Correctional Institution (FCI) Dublin, a federal women's prison in California that was infested with so much corruption, sexual abuse, and whistleblower retaliation that the BOP shut it down earlier this year.
Shanna Rifkin, the deputy general counsel at FAMM, says they have secured releases for 17 women out of the 25 cases they've taken on. But Rifkin says government opposition has increased significantly since the new policy statement took effect.
"Before November 1, 2023, when this policy statement went into effect, in almost every single case the government was agreeing or not opposing the compassionate release motion," Rifkin says. "Since then, there has been a lot more resistance to compassionate release motions based on sexual abuse."
The Justice Department argued that requiring a finding of guilt would set a clear standard for judges. It wrote in a public comment on the Sentencing Commission's proposed changes that "permitting compassionate release hearings only after the completion of other administrative or legal proceedings will help ensure that allegations are more fairly adjudicated, prevent mini-trials on allegations, and reduce interference with pending investigations and prosecutions."
However, Rifkin says this undercuts one of the major reforms in the FIRST STEP Act of 2018. That act changed compassionate release to allow inmates to directly petition federal judges, significantly reducing the BOP's power to stonewall and delay petitions.
"It effectively puts the Department of Justice back in the driver's seat," Rifkin says of the new policy statement, "because who drives a criminal case? The Department of Justice. Victims of abuse have no say over when a case against their abuser will be brought, if it will be brought, and who will be charged as the victims in the case."
And while a finding of guilt may sound like a reasonable standard, it is a surprisingly difficult one to meet in cases of sexual assault perpetrated by government employees.
According to the Bureau of Justice Statistics, from 2016 to 2018, perpetrators of staff sexual misconduct were only convicted, sentenced, fined, or pleaded guilty in 6 percent of substantiated incidents in federal and state prisons.
Reason detailed last year how a cadre of corrupt guards at a federal minimum security camp in Florida was allowed to prey on women for years without oversight. Those guards eventually admitted under oath to internal affairs investigators that they had assaulted incarcerated women, yet most were allowed to retire and none was ever prosecuted.
Over the past year, the Justice Department has ramped up scrutiny of prisons and prosecutions of corrupt BOP employees, but even with more vigilant oversight, criminal cases do not move quickly through the court system, especially if the defendant goes to trial. Rifkin cited one pending case against a former FCI Dublin correctional officer who has been charged with assaulting three women. He was indicted in May 2023, but his trial isn't scheduled until 2025.
"So women who are survivors of his abuse ostensibly have to wait until the government has concluded their case in order to have a cognizable claim under this policy statement," Rifkin explains.
As for civil suits against government employees, they routinely take years to resolve, and settlements often stipulate that they do not constitute admissions of guilt by the defendants.
The difference between how petitions have been handled before and after the new standard was enacted is stark. Take the case of Aimee Chavira, a former inmate at FCI Dublin who says she was abused by five correctional officers and continued to suffer retaliation after she was transferred out of the prison.
When Chavira filed her compassionate release petition, only one of those officers had been indicted, and another committed suicide while under investigation. Nevertheless, the U.S. Attorney's Office for the Southern District of California filed a motion of nonopposition in response to her petition. Chavira was released in May of last year.
Contrast that with Wahpeta's case, where prosecutors have not only tried to apply the adjudication requirement but also attacked her credibility.
In a court filing opposing Wahpeta's petition, prosecutors note that Wahpeta never gave her victim impact statement because of objections from Jones' attorney and concerns that her story was insufficiently corroborated. The government also puts significance on the facts that she initially refused to cooperate with FBI investigators and denied being abused; that she didn't mention being abused in letters to her family she wrote while in solitary confinement; that she contemplated getting a lawyer; and that her descriptions of abuse were remarkably similar to the narratives of the named victims in the criminal case against Jones.
"Even when writing to her parents, her main concern was getting out of confinement early, not reporting what she had seen," federal prosecutors argue. "Also, defendant never mentions being a victim of abuse, but rather that she witnessed the abuse."
But this behavior is all too common in cases of sexual abuse in prison. Incarcerated victims of sexual assault often initially refuse to cooperate with investigators out of fear of retaliation from correctional officers, who remain in total control of their lives. Indeed, Wahpeta was put in solitary confinement while Jones was under investigation, and she remained there for more than two months before Jones was removed from the prison. Besides embarrassment or any other number of personal reasons, survivors are also often vague in communications with family because correctional officers can read their letters and emails.
Bay Area news outlet KTVU has interviewed dozens of women over the past two years about sexual abuse and retaliation inside FCI Dublin, and a lawsuit on behalf of multiple incarcerated FCI Dublin women described the repression inside the prison in detail: "Survivors who report sexual abuse are verbally threatened, physically assaulted, sent to solitary confinement, given false disciplinary tickets, have their cells tossed and property destroyed, have their mail (including legal mail) interfered with, strip searched, and transferred to other BOP institutions away from their families—and are even targeted for further sexual abuse."
In a sentencing memorandum filed in Jones' case, prosecutors were keenly aware of how retaliation works inside federal prisons. "To enforce the silence that was so critical to the perpetuation of his predation, Jones created an environment of intimidation, fear, and reprisal," prosecutors wrote. "It wasn't just words. Jones also enforced silence and obedience through violence and threats of violence."
Yet, now federal prosecutors take Wahpeta's silence as a mark against her.
"DOJ has already decided whether Ms. Wahpeta is lying. And it decided she isn't," Wahpeta's attorney wrote in a response. "It decided she isn't when the U.S. Attorney's Office for the Northern District of California invited her to read a victim impact statement at Officer Andrew Jones's sentencing hearing. If the government believed that Ms. Wahpeta was lying, it would have had a duty to tell the Court. It did not do so. In fact, until its response here, at no point during the duration of Ms. Wahpeta's cooperation with the government has the government questioned what happened to Ms. Wahpeta to either her or her counsel. Nor could it. Because it's true."
The Justice Department did not immediately respond to a request for comment.
President Joe Biden describes the Drug Enforcement Administration's proposal to reclassify marijuana under federal law as "monumental." How so? "It's an important move toward reversing longstanding inequities," Biden claims in a video posted on Thursday. "Today's announcement builds on the work we've already done to pardon a record number of federal offenses for simple possession of marijuana, and it adds to the action we've taken to lift barrier
President Joe Biden describes the Drug Enforcement Administration's proposal to reclassify marijuana under federal law as "monumental." How so? "It's an important move toward reversing longstanding inequities," Biden claims in a video posted on Thursday. "Today's announcement builds on the work we've already done to pardon a record number of federal offenses for simple possession of marijuana, and it adds to the action we've taken to lift barriers to housing, employment, small business loans, and so much more for tens of thousands of Americans."
Even allowing for 60 days of public comment and review of a final rule by Congress and the Office of Management and Budget, marijuana's rescheduling could be finalized before the presidential election. And even if it does not take effect before then, Biden is hoping the move will help motivate younger voters whose turnout could be crucial to his re-election. But he also had better hope those voters are not paying much attention to the practical consequences of rescheduling marijuana, which are much more modest than his rhetoric implies.
"Look, folks," Biden says in the video, "no one should be in jail merely for using or possessing marijuana. Period. Far too many lives have been upended because of [our] failed approach to marijuana, and I'm committed to righting those wrongs." Yet rescheduling marijuana will not decriminalize marijuana use, even for medical purposes. It will not legalize state-licensed marijuana businesses or resolve the growing conflict between federal prohibition and state laws that authorize those businesses. It will not stop the war on weed or do much to ameliorate the injustice it inflicts.
In accordance with a recommendation that the Department of Health and Human Services (HHS) made last August, the DEA plans to move marijuana from Schedule I of the Controlled Substances Act, a list of completely prohibited drugs, to Schedule III, which includes prescription medications such as ketamine, Tylenol with codeine, and anabolic steroids. Schedule I supposedly is reserved for drugs with a high abuse potential and no accepted medical applications that cannot be used safely even under a doctor's supervision.
When Biden directed HHS to review marijuana's legal status in October 2022, he noted that "we classify marijuana at the same level as heroin" and treat it as "more serious than fentanyl," which "makes no sense." On Thursday, he likewise noted that "marijuana has a higher-level classification than fentanyl and methamphetamine—the two drugs driving America's overdose epidemic."
Biden is right that marijuana's current classification makes no sense, as critics have been pointing out for half a century and as HHS belatedly acknowledged in explaining the rationale for rescheduling. HHS found "credible scientific support" for marijuana's use in the treatment of pain, nausea and vomiting, and "anorexia related to a medical condition." It also noted that "the risks to the public health posed by marijuana are low compared to other drugs of abuse," such as heroin (Schedule I), cocaine (Schedule II), benzodiazepines like Valium and Xanax (Schedule IV), and alcohol (unscheduled).
Although "abuse of marijuana produces clear evidence of harmful consequences, including substance use disorder," HHS said, they are "less common and less harmful" than the negative consequences associated with other drugs. It concluded that "the vast majority of individuals who use marijuana are doing so in a manner that does not lead to dangerous outcomes to themselves or others."
According to the DEA's proposed rule, Attorney General Merrick Garland, who holds the ultimate authority to reschedule drugs under the CSA, "concurs with HHS's conclusion" that marijuana has currently accepted medical uses. Garland also "concurs with" the assessment that "marijuana has a potential for abuse less than the drugs or other substances in schedules I and II." And he agrees that "the abuse of marijuana may lead to moderate or low physical dependence, depending on frequency and degree of marijuana exposure."
Those conclusions are "monumental" in the sense that HHS, the DEA, and the Justice Department are finally acknowledging what most Americans already knew. Abandoning the pretense that marijuana meets the criteria for Schedule I represents progress in that sense, although it comes after decades of legal wrangling in which HHS and the DEA took the opposite position, at a time when 38 states have legalized medical use of marijuana, two dozen have taken the further step of legalizing recreational use, and an overwhelming majority of Americans oppose pot prohibition.
In practical terms, the two main benefits of moving marijuana to Schedule III are fewer regulatory barriers to medical research and a financial boon to state-licensed cannabis suppliers, who will no longer be barred from deducting standard business expenses when they file their federal tax returns. But when Biden calls it "an important move toward reversing longstanding inequities" and links it to "righting [the] wrongs" suffered by cannabis consumers, he is promising more than rescheduling can possibly deliver.
Although Biden promised to "decriminalize the use of cannabis" during his 2020 campaign, rescheduling does not do that. Nor do the pardons he touts. Despite those two moves, low-level marijuana possession will remain a federal offense punishable by a minimum $1,000 fine and up to a year in jail. Only Congress can change that. Biden has invested little, if any, effort in urging it to do so, and he opposes outright federal legalization based on "gateway drug" concerns that pot prohibitionists have been voicing since the 1950s.
Neither rescheduling nor pardons will remove the unfair "barriers" that Biden decries. Although Biden claims he is "expunging thousands of convictions," that is not true, since pardons do not entail expungement. Nor do pardons eliminate the various legal disabilities associated with marijuana convictions, cannabis consumption, or participation in the cannabis industry, which include loss of Second Amendment rights (a policy that Biden defends) and ineligibility for admission, legal residence, and citizenship under immigration law.
As his pardons reflect, Biden's concern about unjust incarceration is curiously limited. Because those pardons did not apply to people convicted of growing or selling marijuana, they did not free a single federal prisoner. Neither will rescheduling.
With marijuana in Schedule III, state-licensed marijuana businesses will remain criminal enterprises under federal law, albeit subject to less draconian penalties. "If marijuana is transferred into schedule III," the DEA notes, "the manufacture, distribution, dispensing, and possession of marijuana would remain subject to the applicable criminal prohibitions of the CSA."
For that reason, rescheduling is unlikely to reassure financial institutions that are leery of serving marijuana businesses because it could expose them to devastating criminal, civil, and regulatory penalties. "Because marijuana would remain a controlled substance under the CSA," the law firm Debevoise & Plimpton notes, "its rescheduling would not immediately impact the potential legal risks to financial institutions (and other parties) considering whether to provide services to marijuana businesses."
If marijuana is listed along with prescription drugs, doesn't that at least mean that it can legally be used as a medicine? No, because doctors can prescribe only specific products that have been approved by the Food and Drug Administration (FDA). Unless and until new cannabis-based medicines pass muster with the FDA, they will not be legal for doctors to prescribe or patients to use.
These points are easily overlooked in the hoopla surrounding the rescheduling announcement. But the limitations of Biden's "monumental" policy shift are clear from the reactions of activists and the cannabis industry.
"This recommendation validates the experiences of tens of millions of Americans, as well as tens of thousands of physicians, who have long recognized that cannabis possesses legitimate medical utility," said Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, which first urged the DEA to reschedule marijuana back in 1972. "But it still falls well short of the changes necessary to bring federal marijuana policy into the 21st century. Specifically, the proposed change fails to harmonize federal marijuana policy with the cannabis laws of most U.S. states, particularly the 24 states that have legalized its use and sale to adults."
The review from the American Civil Liberties Union (ACLU) was similarly mixed. "President Biden's decision to reschedule marijuana is the most significant step any American president has taken to address the harms of the war on marijuana," Cynthia W. Roseberry, director of policy and government affairs at the ACLU's Justice Division, said in an emailed statement. "While it is an incredibly encouraging step in the right direction, the rescheduling does not end criminal penalties for marijuana or help the people currently serving sentences for marijuana offenses."
John Mueller, CEO of the Greenlight dispensary chain, likewise noted what rescheduling will not do. "This is a monumental moment," he said in an emailed press release, "but we still have a long way to go to rectify the injustices of the War on Drugs. The recent strides in cannabis rescheduling mark a significant departure from a failed 50-year prohibition policy. We must continue this momentum by calling on our state and federal leaders to prioritize the release of individuals incarcerated for cannabis-related offenses. This is not just about acknowledging the legitimacy of the cannabis industry, but also about rectifying the disproportionate impact of outdated policies on marginalized communities.…It's time to right the wrongs of the past and embrace progress wholeheartedly."
Aaron Smith, CEO of the National Cannabis Industry Association, had a similar take. "On behalf of thousands of legal businesses operating across the country, we commend President Biden for taking this important first step toward a more rational marijuana policy," he said. "Now it's time for Congress to enact legislation that would protect our industry, uphold public safety, and advance the will of the voters who overwhelmingly support making cannabis legal for adults. Rescheduling alone does not fix our nation's state and federal cannabis policy conflict. Only Congress can enact the legislation needed to fully respect the states and advance the will of the vast majority of voters who support legal cannabis."
The Department of Justice indicted the creators of an application that helps people spend their bitcoins anonymously. They're accused of "conspiracy to commit money laundering." Why "conspiracy to commit" as opposed to just "money laundering"? Because they didn't hold anyone else's money or do anything illegal with it. They provided a privacy tool that may have enabled other people to do illegal things with their bitcoin. But that's not a crime,
The Department of Justice indicted the creators of an application that helps people spend their bitcoins anonymously. They're accused of "conspiracy to commit money laundering." Why "conspiracy to commit" as opposed to just "money laundering"?
Because they didn't hold anyone else's money or do anything illegal with it. They provided a privacy tool that may have enabled other people to do illegal things with their bitcoin. But that's not a crime, just as selling someone a kitchen knife isn't a crime. The case against the creators of Samourai Wallet is an assault on our civil liberties and First Amendment rights.
What this tool does is offer what's known as a "coinjoin," a method for anonymizing bitcoin transactions by mixing them with other transactions, as the project's founder, Keonne Rodriguez, explained to Reason in 2022:
"I think the best analogy for it is like smelting gold," he said. "You take your Bitcoin, you add it into [the conjoin protocol] Whirlpool, and Whirlpool smelts it into new pieces that are not associated to the original piece."
Smelting bars of gold would make it harder for the government to track. But if someone eventually uses a piece of that gold for an illegal purchase, should the creator of the smelting furnace go to prison? This is what the government is arguing.
Cash is the payment technology used most by criminals, but it also happens to be essential for preserving the financial privacy of law-abiding citizens, as Human Rights Foundation chief strategy officer Alex Gladstein told Reason:
"The ATM model, it gives people the option to have freedom money," says Gladstein. "Yes, the government will know all the ins and outs of what flows are coming in and out, but they won't know what you do with it when you leave. And that allows us to preserve the privacy of cash, which I think is essential for a democratic society."
The government's decision to indict Rodriguez and his partner William Lonergan Hill is also an attack on free speech because all they did was write open-source code and make it widely available.
"It is an issue of a chilling effect on free speech," attorney Jerry Brito, who heads up the cryptocurrency nonprofit Coin Center, told Reason after the U.S. Treasury went after the creators of another piece of anonymizing software. "So, basically, anybody who is in any way associated with this tool…a neutral tool that can be used for good or for ill, these people are now being basically deplatformed."
Are we willing to trade away our constitutional rights for the promise of security? For many in power, there seems to be no limit to what they want us to trade away.
In the '90s, the FBI tried to ban online encryption because criminals and terrorists might use it to have secret conversations. Had they succeeded, there would be no internet privacy. E-commerce, which relies on securely sending credit card information, might never have existed.
Remember when the Canadian government ordered banks to freeze money headed to the trucker protests? Central Bank Digital Currencies would make such efforts far easier.
"We come from first principles here in the global struggle for human rights," says Gladstein. "The most important thing is that it's confiscation resistant and censorship resistant and parallel, and can be done outside of the government's control."
The most important thing about bitcoin, and money like it, isn't its price. It's the check it places on the government's ability to devalue, censor, and surviel our money. Creators of open-source tools like Samourai Wallet should be celebrated, not threatened with a quarter-century in a federal prison.
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The Justice Department yesterday confirmed that the Drug Enforcement Administration (DEA) plans to move marijuana from Schedule I of the Controlled Substances Act (CSA), a list of completely prohibited drugs, to Schedule III, which includes prescription medications such as ketamine, Tylenol with codeine, and anabolic steroids. The Associated Press notes that the change, which is based on an August 2023 recommendation by the Department of Health
The Justice Department yesterday confirmed that the Drug Enforcement Administration (DEA) plans to move marijuana from Schedule I of the Controlled Substances Act (CSA), a list of completely prohibited drugs, to Schedule III, which includes prescription medications such as ketamine, Tylenol with codeine, and anabolic steroids. The Associated Press notes that the change, which is based on an August 2023 recommendation by the Department of Health and Human Services (HHS) that resulted from a review President Joe Biden ordered in October 2022, "would not legalize marijuana outright for recreational use."
That is by no means the only thing rescheduling marijuana will not do. Biden wants credit for "marijuana reform," which he hopes will help motivate young voters whose turnout could be crucial to his reelection. The announcement of the DEA's decision seems designed to maximize its electoral impact. But voters should not be fooled: Although moving marijuana to Schedule III will facilitate medical research and provide a financial boost to the cannabis industry, it will leave federal pot prohibition essentially untouched.
Rescheduling marijuana will not resolve the conflict between the CSA and the laws of the 38 states that recognize cannabis as a medicine, 24 of which also allow recreational use. State-licensed marijuana businesses will remain criminal enterprises under federal law, exposing them to the risk of prosecution and forfeiture. While an annually renewed spending rider protects medical marijuana suppliers from those risks, prosecutorial discretion is the only thing that protects businesses serving the recreational market.
Even if they have state licenses, marijuana suppliers will be in the same legal position as anyone who sells a Schedule III drug without federal permission. Unauthorized distribution is punishable by up to 10 years in prison for a first offense and up to 20 years for subsequent offenses. That is less severe than the current federal penalties for growing or distributing marijuana, which include five-year, 10-year, and 20-year mandatory minimum sentences, depending on the number of plants or amount of marijuana. But distributing cannabis, with or without state permission, will remain a felony.
That reality suggests that banks will remain leery of providing financial services to state-licensed marijuana suppliers, which entails a risk of potentially devastating criminal, civil, and regulatory penalties. The dearth of financial services has forced many cannabis suppliers to rely heavily on cash, which is cumbersome and exposes them to a heightened risk of robbery. It also makes investment in business expansion difficult.
Although federal arrests for simple marijuana possession are rare, cannabis consumers likewise will still be committing crimes, even if they live in states that have legalized marijuana. Under 21 USC 844, possessing a controlled substance without a prescription is a misdemeanor punishable by a minimum $1,000 fine and up to a year in jail. Moving marijuana to Schedule III will not change that law, which only Congress can do. Nor did President Joe Biden's mass pardons for people convicted of simple marijuana possession under that statute, which apply only retrospectively, "decriminalize the use of cannabis," as he promised to do during his 2020 campaign.
Biden has repeatedly decried the barriers to education, employment, and housing that marijuana convictions create. But contrary to what he claims, his pardons do not entail expungement of criminal records and therefore do not eliminate those barriers. Nor did the pardons address the various legal disabilities associated with marijuana convictions, cannabis consumption, or participation in the cannabis industry, which include loss of Second Amendment rights (a policy that Biden defends) and ineligibility for admission, legal residence, and citizenship under immigration law. Rescheduling marijuana likewise will not remove those barriers and disabilities.
Moving marijuana to Schedule III will not even make it legally available as a medicine, which would require regulatory approval of specific products. Doctors can legally prescribe Marinol (a.k.a. dronabinol), a synthetic version of THC listed in Schedule III, and Epidiolex, a cannabis-derived CBD solution listed in Schedule V. But they will not be able to prescribe marijuana even after it is moved to Schedule III unless the Food and Drug Administration approves additional cannabis-based medications.
The medical "recommendations" that authorize patients to use marijuana for symptom relief under state law are not prescriptions, and they do not make such use compliant with the CSA. So rescheduling marijuana not only will not legalize recreational use; it will not legalize medical use either.
What will rescheduling do? It should make medical research easier by eliminating the regulatory requirements that are specific to Schedule I, and it will provide an important benefit to state-licensed marijuana suppliers by allowing them to deduct standard business expenses when they pay federal income taxes.
Under Section 280E of the Internal Revenue Code, which is aimed at sticking it to drug dealers, taxpayers may not claim a "deduction or credit" for "any amount paid or incurred during the taxable year in carrying on any trade or business" that involves "trafficking" in Schedule I or Schedule II drugs. As that provision has been interpreted by tax courts, marijuana businesses can still deduct the "cost of goods sold," which counterintuitively means they can deduct the expenses associated with obtaining and maintaining an inventory of cannabis products. But they cannot deduct any other business expenses, including rent, utilities, salaries and benefits, office supplies, security, cleaning services, insurance, and legal fees.
That rule results in a crushing financial burden, forcing marijuana retailers to pay an effective tax rate as high as 70 percent or more. But because Section 280E applies only to businesses that sell drugs in Schedule I or Schedule II, moving marijuana to Schedule III will eliminate that disadvantage.
"I cannot emphasize enough that removal of § 280E would change the industry forever," cannabis lawyer Vince Sliwoski writes. "Having worked with cannabis businesses for 13 years, I view taxation as the largest affront to marijuana businesses—more than banking access, intellectual property protection problems, lack of bankruptcy, you name it. This would be HUGE." In addition to making it much easier to turn a profit, Sliwoski says, the tax change would help attract investors and give marijuana businesses "more leverage" in negotiating those deals.
Aside from those practical changes, rescheduling represents a historic federal about-face on the benefits and hazards of marijuana. Schedule I is supposedly reserved for drugs with a high abuse potential and no accepted medical use that cannot be used safely even under a doctor's supervision. Explaining its rationale for recommending marijuana's reclassification, HHS acknowledged that the drug does not meet those criteria—a point that critics had been making for half a century.
HHS cited "credible scientific support" for marijuana's use in the treatment of pain, nausea and vomiting, and "anorexia related to a medical condition." Regarding abuse potential and safety, it noted that marijuana compares favorably to "other drugs of abuse," such as heroin (Schedule I), cocaine (Schedule II), benzodiazepines like Valium and Xanax (Schedule IV), and alcohol (unscheduled). "The vast majority of individuals who use marijuana," HHS said, "are doing so in a manner that does not lead to dangerous outcomes to themselves or others."
In agreeing to follow the HHS recommendation, the DEA likewise is implicitly admitting that the federal government has been lying about marijuana for decades. But that long-overdue reversal falls far short of addressing today's central cannabis issue: the conflict between federal prohibition and state tolerance, which extends to recreational use in jurisdictions that account for most of the U.S. population. Repealing the federal ban—a step that Americans overwhelmingly support—would resolve that conflict. And while Biden cannot do that on his own, he has stubbornly resisted the idea, even as he emphasizes the irrationality and injustice of the war on weed.
On April 24, the Department of Justice continued its assault on open source developers, arresting Keonne Rodriguez and William Lonergan Hill on allegations of money laundering. Rodriguez and Hill, operating the well-known bitcoin application Samourai Wallet, committed the grand offense of writing code. Under the auspices of money laundering, the DOJ seized servers located abroad, pulled the Samourai website from its domain, and had Google remove
On April 24, theDepartment of Justice continued its assault on open source developers, arresting Keonne Rodriguez and William Lonergan Hill on allegations of money laundering. Rodriguez and Hill, operating the well-known bitcoin application Samourai Wallet, committed the grand offense of writing code.
Under the auspices of money laundering, the DOJ seized servers located abroad, pulled the Samourai website from its domain, and had Google remove the app from its Play Store.
It's a stunning flashback to the 1990s "crypto wars," when the feds last went after cryptographers and others writing code.
At that time, government officials alleged that producing and sharing encryption technology amounted to exporting weapons. Politicians worried that these privacy technologies would fall into the "wrong" hands, so much so that President Bill Clinton declared anational emergency and then-Sen. Joe Biden (D–Del.) introduced a bill to allow the government tospy on text and voice communications.
Philip Zimmermann, a programmer, wrote an encryption software called Pretty Good Privacy (PGP) that would thwart the government's snooping efforts. As Paul Detrick explained for Reason, the software was so good that the DOJ launched a criminal investigation in 1993 "on the grounds that by publishing his software he had violated the Arms Export Control Act. To demonstrate that PGP was protected under the First Amendment, Zimmerman[n] got MIT Press to print out its source code in a book and sell it abroad."
The DOJ dropped the case.
Around the same time, Berkeley Ph.D. student Daniel Bernstein developed an encryption method called Snuffle based on a one-way hash function. After publishing an analysis and instructions on how to use his code, he reached out to theState Department to present it. Bad move. The State Department required Bernstein to "register as an arms dealer, and apply for a[n] export license merely to publish his work online." Berstein, represented by the Electronic Frontier Foundation, took the government to court, and ever since the landmark ruling in Bernstein v. U.S. Department of Justice, code has been considered speech.
Thirty years later, politicians are now worried less about technical data leaking to foreigners and more about those foreigners' money flows. In a supposed attempt to prevent terrorism, the government is cracking down on money laundering.
But the main impetus hasn't changed: Behavior not subject to the oversight of the U.S. government must be suspicious—and is probably illegal.
With roots in thecypherpunk ethos to which both Zimmermann and Bernstein belonged, bitcoin encompasses the "code is speech" verdict from the '90s. Bitcoin is a digital currency based on an elaborate system of cryptographically protected numbers, signed and validated by other numbers, all in the open. Bitcoin is math. Software that runs bitcoin wallets are strings of 1s and 0s; they are speech, and at no point dobitcoin transactions cease to be speech.
The main service for which Rodriguez and Hill's Samourai Wallet has run afoul with law enforcement is Whirlpool, a privacy-enhancing feature on a blockchain that's otherwise open and available for anyone to inspect. In the fiat system, my employer can't spy into my bank account or I into theirs (though the bank can, and anyone who successfully hacks the bank's record). A grocery store, car dealership, or insurance provider can't see how much funds I have, where they came from, or who might have spent them a few hops before they came to me. With bitcoin, that's all in the open—hence why services like Whirlpool are so important.
Whirlpool constructs a five-input, five-output transaction between an unknown number of people. Five units of similar-sized bitcoin go in and five come out to new addresses. This obfuscates the individual coins' history, and anybody observing flows on thepublicly available blockchain can no longer know which of the five outputs belonged to which input.
In the DOJ's enlightened view, that now constitutes money laundering and a failure to register as a money transmitter, even though Samourai is a noncustodial wallet, where the "operators do not take custody of user funds and therefore are technically incapable to 'accept' deposits or 'execute' the transmission of funds," according to Bitcoin Magazine.
I sometimes get paid in bitcoin from various international clients and employers. I've used Whirlpool many times—and it's about as nefarious and shady as any good old cash transaction. I don't exactly want my employer to be able to find out where I spent my funds. I definitely don't want someone I send bitcoin to to know how much I carry in the specific wallet from which I was spending. This is all standard hygiene in a modern digital world; we leak wealth and spending information like crazy, and protecting some of that privacy is just prudent behavior.
Have there been terrorists or otherwise certified Bad People using Samourai's services? Probably, but that's too low of a bar to throw a legal fuss. It's a bad-faith argument, as Reason's Zach Weismuller writes: "They will point to bad people using these tools, just as they pointed out that Hamas raised some funds in various cryptocurrencies, without noting that a vast amount of money laundering happens with government-issued currency."
Terrorists and criminals use these services, officials say. OK, but they also, to a much larger extent,use the U.S. dollar. Maybe the DOJ should arrest Jerome Powell and confiscate the Federal Reserve's servers while they're at it. We don't go after high-end leather wallet manufacturers because some of their customers carry notes that may have once been involved in crimes. We don't inspect cash registers at gas stations for illicit dollars—and then go after the manufacturer of the cash register themselves.
That's what Rodriguez and Hill are: manufacturers. Using code, they created a program that others operate on their own phones and computers. At no point in the process did they take custody of users' funds—which is why all the DOJ acquired when arresting Rodriguez and Hill were servers and domains. No stash of laundered and illicit bitcoin sat in the basement of the alleged culprits.
Government protagonists always have seemingly good reasons—terrorism, trafficking, drugs, Bad People doing normal things—to intervene and sidestep people's rights.
Those of us who worry about government overreach always feared that the crypto wars of the 1990s mightone day return. Last week, the DOJ revived that battle.
WikiLeaks founder Julian Assange has been imprisoned in London for five years, while Texas journalist Priscilla Villarreal was only briefly detained at the Webb County Jail. But both were arrested for publishing information that government officials wanted to conceal. Assange and Villarreal argue that criminalizing such conduct violates the First Amendment. In both cases, the merits of that claim have been obscured by the constitutionally irrelev
WikiLeaks founder Julian Assange has been imprisoned in London for five years, while Texas journalist Priscilla Villarreal was only briefly detained at the Webb County Jail. But both were arrested for publishing information that government officials wanted to conceal.
Assange and Villarreal argue that criminalizing such conduct violates the First Amendment. In both cases, the merits of that claim have been obscured by the constitutionally irrelevant question of who qualifies as a "real" journalist.
Assange, an Australian citizen, is fighting extradition to the United States based on a federal indictment that charges him with violating the Espionage Act by obtaining and publishing classified documents that former U.S. Army intelligence analyst Chelsea Manning leaked in 2010. He has already spent about as much time behind bars as federal prosecutors say he would be likely to serve if convicted.
President Joe Biden says he is "considering" the Australian government's request to drop the case against Assange. But mollifying a U.S. ally is not the only reason to reconsider this prosecution, which poses a grave threat to freedom of the press by treating common journalistic practices as crimes.
All but one of the 17 charges against Assange relate to obtaining or disclosing "national defense information," which is punishable by up to 10 years in prison. Yet all the news organizations that published stories based on the confidential State Department cables and military files that Manning leaked are guilty of the same crimes.
More generally, obtaining and publishing classified information is the bread and butter of reporters who cover national security. John Demers, then head of the Justice Department's National Security Division, implicitly acknowledged that reality in 2019, when he assured reporters they needn't worry about the precedent set by this case because Assange is "no journalist."
The U.S. Court of Appeals for the 5th Circuit took a similarly dim view of Villarreal in January, when it dismissed her lawsuit against the Laredo prosecutors and police officers who engineered her 2017 arrest. They claimed she had violated Section 39.06(c) of the Texas Penal Code, an obscure law that makes it a felony to solicit or obtain nonpublic information from a government official with "intent to obtain a benefit."
The cops said Villarreal committed that crime by asking Laredo police officer Barbara Goodman to confirm information about a public suicide and a fatal car crash. As interpreted by the Laredo Police Department, Section 39.06(c) sweeps even more broadly than the Espionage Act, making a felon out of any reporter who seeks information that is deemed exempt from disclosure under the Texas Public Information Act.
Gliding over the alarming implications of making it a crime for reporters to ask questions, the 5th Circuit dismissed the idea that Villarreal is "a martyr for the sake of journalism." The majority opinion by Judge Edith Jones dripped with contempt for Villarreal, an independent, uncredentialed journalist who posts her unfiltered reports on Facebook instead of publishing vetted and edited stories in a "mainstream, legitimate" news outlet.
Seemingly oblivious to what quotidian news reporting across the country entails, Jones faulted Villarreal for relying on a "backchannel source" and for "capitaliz[ing] on others' tragedies to propel her reputation and career." But like the judgment that Assange is "no journalist," such criticism fundamentally misconstrues freedom of the press, which applies to anyone who engages in mass communication.
The 5th Circuit's decision provoked four dissents authored or joined by seven judges, and it is not hard to see why. "If the First Amendment means anything," Judge James C. Ho wrote, "surely it means that citizens have the right to question or criticize public officials without fear of imprisonment."
In a petition it filed on Villarreal's behalf last week, the Foundation for Individual Rights and Expression urges the U.S. Supreme Court to vindicate that right. "Villarreal went to jail for basic journalism," it notes. "Whatever one may make of Villarreal's journalistic ethics, they are of no constitutional significance."
Enlarge / John Schmidtlein, partner at Williams & Connolly LLP and lead litigator for Alphabet Inc.'s Google, arrives to federal court in Washington, DC, US, on Monday, Oct. 2, 2023. (credit: Bloomberg / Contributor | Bloomberg)
Halfway through the first day of closing arguments in the Department of Justice's big antitrust trial against Google, US District Judge Amit Mehta posed the question that likely many Google users have pondered over years of DOJ claims that Google'
Enlarge/ John Schmidtlein, partner at Williams & Connolly LLP and lead litigator for Alphabet Inc.'s Google, arrives to federal court in Washington, DC, US, on Monday, Oct. 2, 2023. (credit: Bloomberg / Contributor | Bloomberg)
Halfway through the first day of closing arguments in the Department of Justice's big antitrust trial against Google, US District Judge Amit Mehta posed the question that likely many Google users have pondered over years of DOJ claims that Google's market dominance has harmed users.
"What should Google have done to remain outside the crosshairs of the DOJ?" Mehta asked plaintiffs halfway through the first of two full days of closing arguments.
According to the DOJ and state attorneys general suing, Google has diminished search quality everywhere online, primarily by locking rivals out of default positions on devices and in browsers. By paying billions for default placements that the government has argued allowed Google to hoard traffic and profits, Google allegedly made it nearly impossible for rivals to secure enough traffic to compete, ultimately decreasing competition and innovation in search by limiting the number of viable search engines in the market.
WikiLeaks founder Julian Assange has been imprisoned in London for nearly five years, pending extradition to the United States so he can be prosecuted for violating the Espionage Act by publishing classified information. Since that amount of time behind bars is about the same as the four-to-six-year prison term that Justice Department lawyers have said Assange would be likely to serve if convicted, you might think the Biden administration would b
WikiLeaks founder Julian Assange has been imprisoned in London for nearly five years, pending extradition to the United States so he can be prosecuted for violating the Espionage Act by publishing classified information. Since that amount of time behind bars is about the same as the four-to-six-year prison term that Justice Department lawyers have said Assange would be likely to serve if convicted, you might think the Biden administration would be ready to reconsider this case, especially since it poses an alarming threat to freedom of the press. Instead, the U.S. government's lawyers are back in London for yet another hearing, which Assange's attorneys describe as a last-ditch attempt to block his extradition.
Recognizing the First Amendment implications, the Obama administration declined to prosecute Assange for obtaining and disclosing confidential State Department cables and military files leaked by former Army intelligence analyst Chelsea Manning in 2010. After all, leading news organizations in the United States and around the world had published stories based on the same documents, and those acts of journalism likewise could be construed as felonies once this precedent was established. So could the routine practices of reporters who cover national security, which commonly involves divulging information that the government prefers to keep secret.
Despite those concerns, the Trump administration decided that Assange should be locked up for doing things that The New York Times et al. do on a regular basis. All but one of the 17 counts in Assange's latest federal indictment relate to obtaining or disclosing "national defense information," which is punishable by up to 10 years in prison. Theoretically, Assange could face 160 years in prison for those counts alone, although the government's lawyers say it probably would be more like the amount of time he already has served in the United Kingdom. Manning herself—who, unlike Assange, violated the terms of her government employment—received a 35-year sentence but was released after seven years thanks to Barack Obama's commutation.
"Some say that Assange is a journalist and that he should be immune from prosecution for these actions," John Demers, then the head of the Justice Department's National Security Division, told reporters after the Assange indictment was announced in May 2019. "The department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the department's policy to target them for reporting." There is no need to worry, Demers suggested, because Assange is "no journalist."
This line of argument misconstrues the "freedom…of the press" guaranteed by the First Amendment, which applies to mass communication generally, not just the speech of people whom the government deigns to recognize as journalists. Demers' assurance is similar to the reasoning that the U.S. Court of Appeals for the 5th Circuit recently applied in counterintuitively concluding that treating journalism as a crime is not "obviously unconstitutional."
That case involved Priscilla Villarreal, a Laredo, Texas, gadfly and citizen journalist who was arrested in 2017 for violating Section 39.06(c) of the Texas Penal Code. Under that previously obscure law, a person who "solicits or receives" information that "has not been made public" from a government official "with intent to obtain a benefit" commits a third-degree felony, punishable by two to 10 years in prison.
Texas defines "benefit" as "anything reasonably regarded as economic gain or advantage." According to the arrest affidavits, the "benefit" that Villarreal sought was a boost in Facebook traffic. Section 39.06(c) defines "information that has not been made public" as "any information to which the public does not generally have access" that is also "prohibited from disclosure" under the Texas Public Information Act. The arrest affidavits did not address the latter requirement at all.
Like the Espionage Act, Section 39.06(c) purportedly criminalizes common reporting practices—in this case, obtaining information about a public suicide and a fatal car accident from a "backchannel source" at the local police department. Writing for the 5th Circuit majority in Villarreal v. Laredo, Judge Edith Jones did not try to hide her disdain for Villarreal, an independent, uncredentialed journalist who files her unfiltered reports on Facebook instead of publishing vetted and edited stories in a "mainstream, legitimate" news outlet.
"Villarreal and others portray her as a martyr for the sake of journalism," Jones wrote. "That is inappropriate. She could have followed Texas law, or challenged that law in court, before reporting nonpublic information from the backchannel source. By skirting Texas law, Villarreal revealed information that could have severely emotionally harmed the families of decedents and interfered with ongoing investigations. Mainstream, legitimate media outlets routinely withhold the identity of accident victims or those who committed suicide until public officials or family members release that information publicly. Villarreal sought to capitalize on others' tragedies to propel her reputation and career."
Although Jones implies that Villarreal's arrest was prompted by concern for "the families of decedents," Villarreal plausibly argued that it was actually punishment for her outspoken criticism of local law enforcement agencies. In any case, there is no First Amendment exception for reporting that might offend or disturb people. And Jones' characterization of Villarreal's work as "capitaliz[ing] on others' tragedies to propel her reputation and career" is an apt, if cynical, description of what many journalists do, even when they work for "mainstream, legitimate media outlets." Jones apparently is unfamiliar with the bread and butter of local news organizations and has never heard the expression, "If it bleeds, it leads."
The seven dissenting judges saw the situation differently. "If the First Amendment means anything," Judge James C. Ho wrote in a dissent joined by five of his colleagues, "surely it means that citizens have the right to question or criticize public officials without fear of imprisonment." Judge James E. Graves Jr. likewise complained that "the majority opinion will permit government officials to retaliate against speech while hiding behind cherry-picked state statutes."
Judge Stephen A. Higginson noted that Thomas Paine, who wrote "the pro-independence pamphlet that historian Gordon Wood describes as 'the most incendiary and popular pamphlet of the entire revolutionary era,'" was, like Villarreal, a "citizen-journalist." Upholding "the text of the Constitution, as well as the values and history that it reflects," he said, "the Supreme Court guarantees the First Amendment right of engaged citizen-journalists, like Paine, to interrogate the government." Jones, by contrast, presumably would view Paine as disreputable, since he did not work for a "mainstream, legitimate media outlet."
Assange's critics, including some professional journalists, have proposed a similar distinction, arguing that he does not deserve the First Amendment's protection because he is not a "real" journalist. But whatever you might think of Assange's opinions, his tactics, or the care he exercised in publishing classified material, that distinction is not grounded in the Constitution and will not hold in practice.
The editors and publishers of The New YorkTimes, The Guardian, Le Monde, Der Spiegel, and El País recognized as much in 2022, when they urged the Justice Department to drop the case against Assange. In ignoring that advice, the Biden administration seems bent on establishing a dangerous precedent that replaces the First Amendment's guarantee with the whims of prosecutors.
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