It turns out the internet was one Sam Alito petulant tantrum away from being a total disaster. In two key First Amendment cases, Alito was given the majority opinion to write. And, in both of them, his insistence on obliterating the old boundaries of the First Amendment caused other Justices to switch sides – and Alito to act like a spoiled brat.

This year, the Supreme Court session ran later than usual. Usually, they finish up by the end of June, but this year it extended the term over to July 1st. There were, obviously, a bunch of “big” decisions (Presidential immunity! Chevron deference!) that were held to the very end, including the two big internet cases: the NetChoice cases and the Murthy case.

As people awaited the decisions, there was a fair bit of SCOTUSology as court experts (and non-experts) speculated based on the number of decisions written by each Justice (and which months the cases were heard in) as to which Justice would have the majority decisions in remaining cases. I heard from quite a few such experts who expected that Alito would have the majority decision in the NetChoice cases, given that the other Justices all seemed to have majority opinions from February cases, and Alito’s name seemed to be missing.

Some people were surprised because in basically all of the internet cases oral arguments, Alito seemed quite out of step with the rest of the Court (and reality). When the decision finally came out, saying that the lower courts didn’t do the proper analysis for a “facial challenge,” it sent the cases back to the lower courts for a redo. But the majority opinion included some very important commentary about how the First Amendment still applies to social media editorial discretion. The overall ruling was technically a unanimous decision, but some noted that Justice Alito’s “concurrence” read like it had been written to be the majority opinion. It delves deeper into the facts of the case than a concurrence normally would (the majority opinion normally handles that).

Oh, and one other weird thing: in that final week of June, people were confused by Justice Alito not showing up to a couple of decision days, and his absence was never explained. Until now.

CNN now has quite an incredible insider’s tale of how Justice Alito had, in fact, been given the job of writing the majority opinion in the NetChoice cases, but lost it because he tried to push the decision too far into saying that states could regulate content moderation.

Alito, while receptive to the 5th Circuit’s opinion minimizing the companies’ speech interests, emphasized the incompleteness of the record and the need to remand the cases. Joining him were fellow conservatives Clarence Thomas and Neil Gorsuch and, to some extent, Barrett and Jackson.

On the other side was Kagan, leaning toward the 11th Circuit’s approach. She wanted to clarify the First Amendment implications when states try to control how platforms filter messages and videos posted by their users. She was generally joined by Chief Justice John Roberts and Justices Sonia Sotomayor and Brett Kavanaugh.

Alito began writing the court’s opinion for the dominant five-member bloc, and Kagan for the remaining four.

It’s also interesting that Justice Jackson was siding with Alito. During oral arguments, Justice Jackson asked some… odd questions, leading some to worry about how she might come down. The CNN report suggests those fears were legitimate.

Either way, Alito pushed his views too far and caused both Barrett and Jackson to bail out.

But when Alito sent his draft opinion around to colleagues several weeks later, his majority began to crumble. He questioned whether any of the platforms’ content-moderation could be considered “expressive” activity under the First Amendment.

Barrett, a crucial vote as the case played out, believed some choices regarding content indeed reflected editorial judgments protected by the First Amendment. She became persuaded by Kagan, but she also wanted to draw lines between the varying types of algorithms platforms use.

“A function qualifies for First Amendment protection only if it is inherently expressive,” Barrett wrote in a concurring statement, asserting that if platform employees create an algorithm that identifies and deletes information, the First Amendment protects that exercise of editorial judgment. That might not be the situation, Barrett said, for algorithms that automatically present content aimed at users’ preferences.

Kagan added a footnote to her majority opinion buttressing that point and reinforcing Barrett’s view. Kagan wrote that the court was not dealing “with feeds whose algorithms respond solely to how users act online – giving them the content they appear to want, without any regard to independent content standards.”

Barrett’s concerns have been worrying to some, as it suggests that algorithmic recommendations may not be protected by the First Amendment. This would upset a bunch of what people thought was settled law regarding things like search engine recommendations. However, the hope is that if such a case comes before the Court (which it almost certainly will…), that a fuller briefing on the record would clarify that algorithmic recommendations are still speech.

As we noted, Alito’s concurrence reads pretty petulant. It declares the majority’s “First Amendment applies to social media” explanation as “nonbinding dicta.” CNN details that this was him being angry that he lost the majority on that case.

But the key reason he lost control over the decision seems to be that he, unlike the eventual majority, would have sided a lot more with the Fifth Circuit’s ruling, which upended a century’s worth of First Amendment law.

Alito had the backing of only two justices in the end, Thomas and Gorsuch. He expressed sympathy for state efforts to restrict what, in an earlier phase of the Texas case Alito called “the power of dominant social media corporations to shape public discussion of the important issues of the day.”

In his separate July 1 opinion for a minority, Alito pointed up why states might want to regulate how platforms filter content: “Deleting the account of an elected official or candidate for public office may seriously impair that individual’s efforts to reach constituents or voters, as well as the ability of voters to make a fully informed electoral choice. And what platforms call ‘content moderation’ of the news or user comments on public affairs can have a substantial effect on popular views.”

Like Oldham, Alito took jabs at the “sophisticated counsel” who challenged the state regulations.

The same article notes that Alito also lost the majority on another “Fifth Circuit misunderstands the First Amendment” case. The one involving Sylvia Gonzalez, who was retaliated against by the mayor for her efforts to shake up the local government. The Fifth Circuit originally said this was totally fine. Eventually, the Supreme Court sent the case back to the Fifth Circuit to try again.

But again, Alito tried to go too far:

When the justices voted on the case in March, the majority agreed that the 5th Circuit erred in the standard it used. Alito was assigned the opinion.

But as he began writing, he went further than the other justices in his review of Gonzalez’s case. Alito and his colleagues realized he couldn’t “hold five,” as the expression goes, for a majority.

A new majority agreed to dispatch the case with a limited rationale in unsigned opinion. Rejecting the 5th Circuit’s reasoning, the Supreme Court said the 5th Circuit had applied an “overly cramped view” of the court’s precedent for when people may sue for First Amendment retaliation claims. The high court noted that Gonzalez could not show evidence of whether officers handled similar situations differently because her situation, involving the alleged removal of a document, was exceedingly rare.

Alito also wrote a concurrence for that case, but here he went on a long rant basically explaining why even if the Fifth Circuit used the wrong standard, there were lots of reasons why Gonzalez should have lost her case. Basically, if he had written the majority opinion, all of this would have qualified as “nonbinding dicta” under Alito’s own standard. Now, at least, it’s just a concurrence.

But, apparently, because Alito was ticked off that he couldn’t “hold five” in either of these cases, it caused him to take his ball and go home (i.e., just not show up at the Court on decision days):

On June 20, when the chief justice announced the opinion in Gonzalez v. Trevino, Alito’s chair at the bench was empty. Alito missed that day, as a total four opinions were handed down, and the next, June 21, when the justices released five other opinions.

Justices sometimes skip one of these final days of the annual session, but usually there’s an obvious reason for the absence, such as travel to a previously scheduled speech. Court officials declined to provide any explanation.

Alito returned for the final four announcement days of the term, yet sometimes appeared preoccupied. On the last day, when Kagan announced the decision in the NetChoice case, Alito was reading through material he had brought along to the bench.

Poor baby.

In both cases, Alito’s view of the First Amendment seems disconnected from reality and history. And, in both cases, he still had a chance to write the majority opinion (sending both cases down on what is, effectively, technicalities). But, in both cases, he was unable to write a reasonable opinion, causing his colleagues on the bench to jump ship to more reasonable rulings.

And, in response, he decided to just sulk like a teenager who didn’t get his way. In the end, that left us with a much better, more First Amendment supportive majority decision (in both cases). But it’s truly incredible how close we came to bad decisions in each, and how both of those flipped due to Alito’s insistence on pushing his terrible, unsupported ideas about free speech.

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

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

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

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

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

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

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

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

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

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

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

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

Samuel Alito has refused to recuse himself from upcoming cases relating to the January 6 Capitol riot. The Supreme Court associate justice told Congress earlier this week that Democrats' insistence that he does so was unreasonable, saying, "I am therefore duty bound to reject your recusal request."

Why have so many Democratic politicians and media figures decided that Alito should sit out from January 6 cases? They believe that he has proven himself to be sympathetic to former President Donald Trump's efforts to overturn the results of the 2020 election—and they cite as evidence two flags that were flown on Alito's properties.

One was an upside-down American flag, and the other was a Pine Tree flag bearing the message "an appeal to heaven." Many in the media have abruptly decided that both flags telegraph agreement with the right's pro-insurrection camp. CNN called the "Appeal to Heaven" flag a "symbol for supporters of former President Donald Trump." The New York Times noted that both flags were carried by rioters during the January 6 attack on the U.S. Capitol. MSNBC insisted that the Pine Tree flag was not just a pro-insurrection flag but also a Christian nationalist flag and implied that Alito should recuse himself from abortion-related cases as well.

Yet the idea that either the Pine Tree flag or flying the American flag upside-down always and everywhere endorsements of Trump's election-related malfeasance is ludicrous. The American flag is commonly turned upside-down by activists representing all sorts of issues and usually represents dissatisfaction with the current state of the country. The "Appeal to Heaven" flag has equally broad usage; it originated during the Revolutionary War and quotes the philosopher John Locke in defense of rebellion against unjust authority. Protesters have borrowed it for their own purposes throughout American history. The Black Lives Matter movement was using it just a few weeks before January 6.

It is certainly true that some of the people who smashed the windows of the U.S. Capitol and feuded with police were carrying this flag, the Gadsden flag, and other icons of liberty—including the American flag itself. That does not mean these flags should be considered exclusive hallmarks of the far right. In fact, people ought to resist ceding pro-liberty iconography to the farr ight.

Alito says that he had nothing to do with the flags, which were put up by his wife during a dispute with one of their neighbors. It is certainly possible that Martha-Ann Alito is a supporter of the Stop the Steal movement. (Associate Supreme Court Justice Clarence Thomas's wife, Ginni Thomas, was certainly sympathetic.) The flags are not compelling evidence of this, however; nor would it necessarily mean that Alito should recuse himself from such cases. Would a liberal justice be expected to recuse from a case related to gay marriage if they flew the pride flag? Or a criminal justice–related case if they had a Black Lives Matter sign on their front yard? No.

For decades, San Francisco's city hall has flown the "Appeal to Heaven" flag alongside other cherished, patriotic banners. In response to the Alito controversy, the city announced this week that it had removed the flag. This is madness. It's retconning. That picture of a pine tree is not a right-wing symbol of hate; cowards are turning it into one.

This Week on Free Media

Once again, I am joined by Amber Duke to discuss Transportation Secretary Pete Buttigieg's electric vehicle push, MSNBC's price confusion, Trump's interview with Tim Pool, Robert DeNiro's stunt, and more.

Worth Watching

I'm playing a new video game! Nintendo released a remake of Paper Mario: The Thousand-Year Door for the Switch. I originally played this game in college, and it's just as much fun as I remembered. The Paper Mario series combines typical Mario platforming action with RPG-esque battle strategy and a surprising amount of hilarious dialogue and sophisticated storytelling. The game is well worth acquiring if you own a Nintendo Switch.

The post Samuel Alito's 'Appeal to Heaven' Flag Got Retconned appeared first on Reason.com.

Nikki Haley shows her true colors: The former presidential contender, United Nations ambassador, and South Carolina governor visited Israel this week. A photo was taken of her writing "finish them" on artillery shells that the Israel Defense Forces (IDF) will use in either Lebanon or Gaza, along with "America [heart emoji] Israel always." (She was visiting the north, so using the artillery shells against Hezbollah seems more likely.)

Finish them!

זה מה שכתבה היום חברתי, השגרירה לשעבר, ניקי היילי על פגז במהלך ביקור במוצב של תותחנים בגבול הצפון.

הגיע הזמן לשינוי משוואה - תושבי צור וצידון יתפנו, תושבי הצפון יחזרו.

צה"ל יכול לנצח! pic.twitter.com/qvLNCXPl7o

— Danny Danon ???????? דני דנון (@dannydanon) May 28, 2024

Interpreted charitably, Haley could have meant "them" as Hamas, the terrorists responsible for perpetrating the October 7 attack which killed 1,200 Israelis and took 240 hostages, or Hezbollah, a terrorist group and key Hamas ally based in Lebanon that's been assaulting the north. But given how much criticism Israel has received from international onlookers—including the International Criminal Court, whose prosecutor issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant—for purported war crimes and conducting what has been described as a "genocide" in Gaza, "finish them" seems liable to misinterpretation. Her follow-up comments didn't exactly exonerate her.

"Israel, they're the good guys," Haley said in an interview with the newspaper Israel Hayom (more coverage here). "And you know what I want Israelis to know? You're doing the right thing. Don't let anybody make you feel wrong."

Haley then criticized the Biden administration's decision earlier this month to pause heavy bombs shipments to Israel over the military's Rafah invasion: "You can't hold back weapons from an ally. So if we want to be a friend to Israel, the best thing America can do is let Israel do its job and just support we shouldn't be preaching to Israel, we shouldn't be telling them how to win the war, we shouldn't tell them what they can or can't do."

"We should just be saying, what else do you need?" Haley continued.

Biden's side of the story: "Civilians have been killed in Gaza as a consequence of those [2,000-pound] bombs and other ways in which they go after population centers," President Joe Biden said on CNN. "I've made it clear to Bibi [Netanyahu] and the war cabinet: They're not going to get our support, if in fact they go on these population centers."

It's easy to look at Haley as nothing more than a war hawk and, indeed, her comments suggest that she wants the U.S. to provide fully unconditional support for Israel—contra how the Biden administration has been handling the situation. The "finish them" comment was probably referring to terrorists, not civilians—making it a bit less horrifying than some of the loudest voices would have you believe—but Haley's inability to describe the situation with sufficient nuance is disturbing nonetheless, and more evidence of why her 2024 presidential campaign so sorely missed the mark.

Military assistance: The U.S. provides Israel with $3.8 billion in military aid each year. This year, legislators here have already passed a supplemental $26 billion in funds for Israeli defense and humanitarian aid in Gaza. At least 25,000 Gazans have been killed so far, though there are disputes over the death toll (controversy explained here), with some 10,000 believed to be buried in the rubble that covers the Strip. U.S. taxpayer dollars are going toward Israel's attempt to wipe out Hamas, which includes a lot of horror and destruction, in the form of both civilian lives and an almost completely wiped-out Gaza Strip that will be hard for residents to inhabit if they're ever able to return. Roads, hospitals, schools, mosques, and all the buildings needed to support the functions of daily life have been obliterated over the last six months; it's not clear when the bombing will cease or what will be left when it does.

Hamas, of course, is partially responsible for foisting this amount of destruction on the people they tyrannize (some of whom voted them into power years ago): They hide among civilians, whether it's putting entrances to their tunnel network on sacrosanct hospital grounds or storing weapons next to MRI machines. Some of the destruction is also a function of the dense geography of the Gaza Strip. But some of it is also surely due to Israeli military failures and a poorly calibrated sense of what is just: A recent strike near a displaced persons camp which took out two valuable Hamas members also killed 45 innocents via a fire that the airstrike accidentally started. (The bombs responsible were GBU-39s, designed and manufactured in the U.S.)

When the act of finishing Hamas involves so much collateral damage—in the form of civilian life especially—it's fair to expect politicians not to treat the war in Gaza like a sporting match, or to decorate bombs with hearts.

Scenes from New York: Policing discourse following the death, at the hands of cops, of 26-year-old Brooklyn resident Andre Mayfield, who was wielding two knives and appeared to be having a mental episode.

Dispatch whomever you want. Cops would love to not be part of this. The problem here is 1) the armed man approached the cops. And 2) there are no workers who can or should approach a man holding a knife in each hand to "make clinical decisions and deliver care." https://t.co/KF3iOYIIyt

— Peter Moskos (@PeterMoskos) May 30, 2024

QUICK HITS

• Update on FlagGate: "My wife is fond of flying flags," Supreme Court Justice Samuel Alito wrote in a letter to legislators who asked that he recuse himself from cases related to the January 6 insurrection. "I am not. She was solely responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years." At issue is the fact that detractors claim that the flags were linked to stolen-election theories.
• Who is actually behind Elon Musk's business empire?
• A court in Hong Kong just convicted 14 pro-democracy activists using the Beijing-imposed national security law.
• Incredible immigration policy:

https://t.co/sOZGoy0klC pic.twitter.com/PDI2SyFVhs

— ????burga????burganonics????burgaology????burgamatics???? (@C_hoffmanni) May 28, 2024

The post War Hawk Autographs Bombs appeared first on Reason.com.

The New York Times apoplectic over basically nothing: "At Justice Alito's House, a 'Stop the Steal' Symbol on Display," reads a New York Times headline from yesterday.

According to the Times, an upside-down American flag was flown at Supreme Court Justice Samuel Alito's house for a few days in January 2021—between the January 6 Capitol riot and President Joe Biden's inauguration. The nation's esteemed paper of record suggests this action indicates that Alito thinks the election was stolen from former President Donald Trump.

There is very little evidence available to make this case. People fly upside-down flags for all kinds of reasons; it typically signals "SOS" or a sense that the country is horribly off course. People have historically flown flags in this manner out of protest for the Vietnam War, out of protest for the Supreme Court's 2022 decision to overturn Roe v. Wade, to contest election results (believing the election was stolen or that voter fraud was rampant), or—and don't get the two confused—to signal displeasure with the election results.

Alito reports that his wife was the one who flew the flag in this manner and that it concerned a dispute with a neighbor who posted an anti-Trump sign in their yard, following the election, that used expletives. Mrs. Alito was reportedly angered by this, and flew her flag upside-down in response. It is very hard to tell what intentions were behind one single gesture, reportedly not even done by the justice himself, and no account from neighbors or friends of the Alito family has bolstered the idea that Mrs. Alito is a "Stop the Steal" type.

This reminds me of when media outlets and the Anti-Defamation League claimed the "OK" symbol was actually a white supremacist gesture. If you look hard enough, you can find disturbing symbols anywhere you look, but you must sometimes suspend logic and reason in order to do so. This does not seem like a situation where a sitting Supreme Court justice is supporting overthrowing election results; it looks like a situation where The New York Times is straining to make that the narrative.

How Taiwan handles TikTok: Taiwan, which has long labeled TikTok a national security threat, eschews a national ban on the Chinese-owned app.

Five years ago, the government banned it on the devices of employees. For the last eight years, the ruling party (which will be in power for another four, at least, as the new president is being inaugurated on Monday) has refused to use the app. Legislators in Taiwan say "they do not have the luxury of thinking of TikTok as the only threat," reports The New York Times. "Disinformation reaches Taiwanese internet users on every type of social media, from chat rooms to short videos."

With China—which contests Taiwanese independence and wants reunification (and seems likely to attempt it by military force at some point)—always looming as a threat, TikTok is the least of Taiwanese politicians' worries.

Note that Taiwan is no libertarian tech paradise. Lawmakers there are weighing "measures that tackle internet threats—fraud, scams and cybercrime—broadly enough to apply to all these existing social media platforms," which may end up encroaching on free speech rights. Still, Taiwan has a robust online fact-checking ecosystem and lots of alternative media sites where users might be able to get better information.

All of this is instructive as legislators in the U.S. have passed a ban on the app and more broadly contemplate how much of a threat to national security the Chinese-owned app poses.

Scenes from New York: The Food and Drug Administration hates this photo since they have decided that Elf Bars—which come in a multitude of flavors—are harming America's youth. They're hard to find these days and Customs keeps seizing shipments at the border. AS FOR ME, I will keep enjoying my NICOTINE FREEDOM, and you can pry my little Miami Mint vape from my cold, dead hands!

QUICK HITS

• "When you're paralyzed from the neck down, the last vestige of normalcy that you have left comes from your brain," writes Bloomberg's Ashlee Vance. "Arbaugh was allowing Neuralink direct, physical access to his, in a procedure that came with all the standard risks of serious surgery as well as the unknown risks of something so new. Doctors would be removing part of his skull and sticking Neuralink's coin-size device with its electrode-laced threads—a foreign object that had never before been tested on humans—into his brain."
• A Change.org petition is calling for the Kansas City Chiefs—yes, a football team in the Midwest—to dismiss one of their players for having given a commencement speech at a Catholic college that says…standard Catholic things. I know it is very upsetting to some people that a football player in the Midwest does not enjoy bell hooks, but we should probably tolerate this nonetheless.
• Interesting thread from Haviv Rettig Gur about the difference in mindset of American Jews and their Israeli counterparts.
• There has been a wave of resignations recently at OpenAI, which some are using to substantiate AI doomerism. Others have commented that you don't resign and post cryptic tweets if you're legitimately worried about the product's safety, which could ostensibly be better influenced from the inside. More on this.

The post Mrs. Alito and the Bad Flag appeared first on Reason.com.

I think we could witness one of the most important First Amendment legal showdowns ever.

The U.S. Supreme Court is being asked to rule on the constitutionality of mandatory age verification for porn websites. If the high court takes up the case, it would queue up a landmark debate pertaining to the First Amendment and privacy rights of millions of people.

Free Speech Coalition and the parent companies of the largest adult entertainment websites on the web filed suit in the U.S. District Court for the Western District of Texas with the intention to block House Bill (HB) 1181.

HB 1181 requires mandatory age verification for porn websites with users from Texas IP addresses. It also requires pseudoscientific health warnings to be posted on adult websites. Counsel representing the coalition and the porn companies argued that it violated the First Amendment rights of consumers and owners of the websites. This prompted the federal district court to initially enjoin the state of Texas from enforcing the law because its text appeared to be unconstitutional.

Acting Texas Attorney General Angela Colmenero appealed the injunction to the Fifth Circuit Court of Appeals. After a clear demonstration of classic Fifth Circuit tap dancing and the return of Ken Paxton to helm of the Attorney General’s office, Texas was granted permission to enforce the age verification requirements outlined in the law. Luckily, the circuit judges properly applied the Zauderer standard, denying the requirement to post the bogus health warnings.

Soon after this, Paxton announced lawsuits against the parent companies of Pornhub, xHamster, and Stripchat for violations of HB 1181. The penalties total in millions of dollars in damages, per the law. After the lawsuits for HB 1181 violations were announced and filed in circuit courts in Travis County, counsel for the plaintiffs tried to hold enforcement while they petitioned the high court to take up the case for consideration. Justice Samuel Alito, the circuit justice for the Fifth Circuit, has yet to indicate that the case will be taken up by the Supreme Court. There is no reason why they shouldn’t take it up because of how important this case is moving forward, and how this issue is showing up in so many other states.

The case, Free Speech Coalition et al. v. Paxton, is so important that the national affiliate of the American Civil Liberties Union announced they are aiding the plaintiffs and their current counsel, a team from the big law firm Quinn Emanuel, in their case. They will support the petition for writ of certiorari, potential oral arguments, etc. to render House Bill 1181 and all age verification laws as unconstitutional pipedreams.

Plaintiffs accurately argue that this is settled law, referring to the high court’s landmark decision in Reno v. American Civil Liberties Union. This decision found that segregating the content of the internet by age violates the rights of not only adults but for minors. The vast majority of age verification laws as they are structured now do just that.

While the Supreme Court provided for a less restrictive means to filter out minors from viewing age-restricted materials and potentially facing some level of harm, the vehicles of enforcement and some of the options touted in these bills for controlling minors’ web usage are, to the plaintiffs and civil liberties organizations, a violation of the First Amendment. ACLU and Quinn Emanuel attorneys for the plaintiffs present these arguments in their petition for writ of certiorari, which was filed in April 2024. Now, we just need the Supreme Court to take this seriously and not let the Fifth Circuit, the circuit that upheld a ban on drag shows, dictate law for the nation.

Michael McGrady covers the legal and tech side of the online porn business, among other topics.

I think we could witness one of the most important First Amendment legal showdowns ever.

The U.S. Supreme Court is being asked to rule on the constitutionality of mandatory age verification for porn websites. If the high court takes up the case, it would queue up a landmark debate pertaining to the First Amendment and privacy rights of millions of people.

Free Speech Coalition and the parent companies of the largest adult entertainment websites on the web filed suit in the U.S. District Court for the Western District of Texas with the intention to block House Bill (HB) 1181.

HB 1181 requires mandatory age verification for porn websites with users from Texas IP addresses. It also requires pseudoscientific health warnings to be posted on adult websites. Counsel representing the coalition and the porn companies argued that it violated the First Amendment rights of consumers and owners of the websites. This prompted the federal district court to initially enjoin the state of Texas from enforcing the law because its text appeared to be unconstitutional.

Acting Texas Attorney General Angela Colmenero appealed the injunction to the Fifth Circuit Court of Appeals. After a clear demonstration of classic Fifth Circuit tap dancing and the return of Ken Paxton to helm of the Attorney General’s office, Texas was granted permission to enforce the age verification requirements outlined in the law. Luckily, the circuit judges properly applied the Zauderer standard, denying the requirement to post the bogus health warnings.

Soon after this, Paxton announced lawsuits against the parent companies of Pornhub, xHamster, and Stripchat for violations of HB 1181. The penalties total in millions of dollars in damages, per the law. After the lawsuits for HB 1181 violations were announced and filed in circuit courts in Travis County, counsel for the plaintiffs tried to hold enforcement while they petitioned the high court to take up the case for consideration. Justice Samuel Alito, the circuit justice for the Fifth Circuit, has yet to indicate that the case will be taken up by the Supreme Court. There is no reason why they shouldn’t take it up because of how important this case is moving forward, and how this issue is showing up in so many other states.

The case, Free Speech Coalition et al. v. Paxton, is so important that the national affiliate of the American Civil Liberties Union announced they are aiding the plaintiffs and their current counsel, a team from the big law firm Quinn Emanuel, in their case. They will support the petition for writ of certiorari, potential oral arguments, etc. to render House Bill 1181 and all age verification laws as unconstitutional pipedreams.

Plaintiffs accurately argue that this is settled law, referring to the high court’s landmark decision in Reno v. American Civil Liberties Union. This decision found that segregating the content of the internet by age violates the rights of not only adults but for minors. The vast majority of age verification laws as they are structured now do just that.

While the Supreme Court provided for a less restrictive means to filter out minors from viewing age-restricted materials and potentially facing some level of harm, the vehicles of enforcement and some of the options touted in these bills for controlling minors’ web usage are, to the plaintiffs and civil liberties organizations, a violation of the First Amendment. ACLU and Quinn Emanuel attorneys for the plaintiffs present these arguments in their petition for writ of certiorari, which was filed in April 2024. Now, we just need the Supreme Court to take this seriously and not let the Fifth Circuit, the circuit that upheld a ban on drag shows, dictate law for the nation.

Michael McGrady covers the legal and tech side of the online porn business, among other topics.