The Houston Police Department halted more than 260,000 investigations between 2016 and 2023 because of a lack of personnel. Now, department leaders say they will try to catch up on those investigations, especially the 4,017 rape cases that were put on hold. Police officials said they did not realize just how often the "S.L." tag, for "Suspended–Lack of Personnel," was applied to cases until a home invasion and sexual assault in September 2023. Physical evidence recovered from that scene matched that of a rape kit from a September 2022 assault. Detectives found that the earlier case had been marked S.L. even though the victim gave police her attacker's name, description, and vehicle description.

The post Brickbat: No Need To Hurry appeared first on Reason.com.

North Carolina is one of the few states to keep detailed statistics on homeschoolers—who are famously resistant to scrutiny, and for good reason—and officials in the state recorded an interesting development this year. After dipping from a pandemic-era high when public schools were closed or generally making a poor job of remote learning, the ranks of homeschoolers have again begun to rise. With census figures showing similar growth elsewhere, we have further evidence that DIY education is here to stay.

Homeschooling Surges Again

In the Statistical Summary for Homeschools 2023–2024, compiled by the state's Department of Administration, the number of registered K–12 homeschools in North Carolina stands at 96,529. Each school can serve more than one student, and the estimated number of homeschooled K–12 students is 157,642. That's down from the peak of 112,614 registered homeschools serving an estimated 179,900 students during the chaos of 2020–2021, but up from 94,154 registered homeschools and 152,717 students last year. Before the pandemic, in 2019–2020, 94,863 homeschools served 149,173 students.

For K–12 private schools, enrollment is up from 126,678 in 2022–2023 to 131,230 in 2023–2024. In 2019–2020, before the pandemic, North Carolina private schools had 103,959 students enrolled.

By contrast, traditional public school enrollment is declining.

"Traditional public schools have 1,358,003 students in 2023-24, losing 0.4% of students from last year to this year and down 3.6% overall from before COVID-19," according to Chantal Brown of EducationNC, which covers education issues in the state. "Charter schools have 139,985 students in 209 schools in 2023-24, gaining 4.9% over last year."

North Carolina isn't alone. In May, Carly Flandro of Idaho Education News found, based on Census Bureau Household Pulse Survey data, "about 6% of Idaho students were home-schooled, on average, during the past two school years. And the state data that is available shows increases since the height of the pandemic. At the same time, public school enrollment dipped this year for the first time since the 2020-21 school year."

Newsweek's Suzanne Blake added that Texas also saw a rise in homeschooling in a continuation of a trend that began "even before the pandemic."

A National Taste for DIY Education

In fact, the Census Bureau's Household Pulse Survey, which takes a continuing series of snapshots of data over the course of each year, shows a national increase among the ranks of homeschooled students from roughly 3.6 million in 2022–2023 to about 4 million this past year (there's variation depending on the snapshot you examine, so it's best to look for averages). Meanwhile, public school enrollment declines.

Based on average of survey data from 2022–2023, Johns Hopkins University's Homeschool Hub, which compiles information about DIY education, estimates that 5.82 percent of American K-12 students were homeschooled that year. Of course, that's down from the height of the pandemic when public schools closed or just dropped the ball.

"In the first week (April 23-May 5) of Phase 1 of the Household Pulse Survey, about 5.4% of U.S. households with school-aged children reported homeschooling," the Census Bureau reported of comparing data from the spring of 2020 to the fall of that year. "By fall, 11.1% of households with school-age children reported homeschooling (Sept. 30-Oct. 12)."

But before the pandemic, the folks at the Homeschool Hub remind us, "homeschooled students between the ages of 5 and 17 made up 2.8% of the total student population in the United States in 2019." That means that, while a lot of families that took to homeschooling out of necessity returned to familiar public schools when they could, enough stuck with it to more than double the number of homeschooled kids. With COVID-19 and intrusive public health policies largely a bad memory, homeschooling continues as an increasingly popular practice as a matter of choice.

Fleeing Public Schools…

In a June article about declining public school enrollment in EducationWeek, Mark Lieberman explained that about half of the loss can be attributed to population changes as the number of kids declines, but about 20 percent fled to private alternatives and another 20 percent turned to homeschooling. (Another 10 percent are unaccounted for, though some probably skipped kindergarten and others may be in DIY arrangements such as homeschooling and microschools, but unreported.)

Lieberman delved into the school choice programs that let education funds follow students to the options of their choice rather than being assigned to brick-and-mortar public schools. But he didn't examine what might drive families to abandon the familiar for education alternatives the require greater dedication and commitment.

Disappointment with schools' pandemic responses clearly played a role in driving many families to try educating their own kids—and many liked the experience. But so do endless battles over how kids are taught and, especially, what is incorporated in the lessons presented to them by often deeply politicized schools. To please one faction of parents with spin that they like is to inherently alienate others.

…To Escape Pointless Conflicts

"Schools in many parts of the U.S. have become a battleground and parental involvement is one of the topics at the center," ABC News reported last September. "Fights in school board meetings, including in Chester County, [Pennsylvania] have erupted over how race, sexual orientation, gender and other topics are brought up, or taught, in the classroom."

Families can fight school administrators and other parents in struggles that inevitably leave those on the losing side unhappy with lesson content. It makes sense for those who lose to withdraw their children from the public schools in favor of lesson plans and approaches that meet their standards. For that matter, it's tempting for even those on the winning side to forego the curriculum wars and just pick the education they like for their kids without battling their neighbors. Why argue with your ideological opponents over what should be taught when you can ignore them and teach your kids what you please?

"When parents can choose where and how their children will be educated, they're no longer at the mercy of politicians and bureaucrats," the Cato Institute's Colleen Hroncich wrote in 2022. "That means they don't have to rely on political battles when it comes to education."

That's undoubtedly a big part of the impetusmothe for recent school choice victories that expand options for families, as well as decisions parents and students make to embrace those options. Homeschooling and other education alternatives are on the rise because they're liberating, and they work.

The post Homeschooling Grows as an Escape from Failing Schools and Curriculum Fights appeared first on Reason.com.

Yesterday, in United States v. Abbott, the en banc US Court of Appeals for the Fifth Circuit ruled in favor of Texas in a case where the federal government is suing the state for installing floating buoy barriers in the Rio Grande River to block migration and drug smuggling, thereby creating safety hazards and possibly impeding navigation. The Biden Administration claimed this violates the Rivers and Harbors Act of 1899.

Texas argues the federal government incorrectly interpreted the statute, but also asserts that one of the "invasion" clauses of the Constitution gives it the power to install the buoys even if federal law forbids it. Article I, Section 10, Clause 3 of the Constitution states that "[n]o state shall, without the Consent of Congress, . . . engage in war, unless actually invaded, or in such imminent Danger as will not admit of delay." Texas claims illegal migration and drug smuggling qualify as "invasion," and therefore the Constitution gives the state the power to take military action in defiance of federal statues, and even in the absence of congressional authorization for war.

In an 11-7 decision largely divided along ideological lines (with more conservative judges in the majority), the en banc Fifth Circuit overturned appellate panel and trial court decisions that had ruled in favor of the federal government.

The majority decision is based on statutory arguments, concluding that the relevant stretch of the Rio Grande is not covered by the Rivers and Harbors Act because it isn't "navigable." On that issue, I think both sides have some good arguments, and I will leave it to analysts with greater interest and expertise. Significantly, the majority does not address Texas's "invasion" argument, thereby not overturning the panel and trial court rulings against Texas on that issue.

Texas has also advanced the "invasion" argument in another case, one dealing with the legality of the states SB 4 law, giving law enforcement broad powers to detain and expel undocumented migrants. So far, both the district court and a Fifth Circuit panel have ruled against the state on that point.

In a recent Lawfare article and an amicus brief in this case, I have explained why illegal migration and drug smuggling do not qualify as "invasion" under the text and original meaning of the Constitution. An "invasion" is an organized armed attack. In addition, I outline the dangerous implications of Texas's argument. If accepted by courts, it would give states nearly unlimited power to start wars without congressional authorization, and give the federal government a similar blank check to suspend the writ of habeas corpus (thereby allowing it to detain people, including US citizens, without charges).

In a concurring opinion in the en banc court, prominent conservative Judge James Ho argues that the court should have addressed the invasion argument. He contends that the meaning of "invasion" is a "political question" that the judiciary is not permitted to address. Other courts that have ruled that invasion is a political question have simultaneously concluded that the matter is left up to the federal government (while, in several cases, also simultaneously concluding that illegal migration does not qualify as invasion). Judge Ho, however, argues that courts must defer to the Texas governor's assertion that there is an invasion, at least so long as the governor is acting in "good faith."

This theory has breathtakingly awful implications. It implies a state governor can declare the existence of an "invasion" virtually any time he or she wants, and then "engage in war" in response—even without authorization from Congress. Moreover, Ho argues the governor can continue military action indefinitely, even if the federal government has had time to consider the situation, and opposes the state's actions.

The "good faith" restriction is not much of a constraint. Political partisans can persuade themselves that almost any interaction with  foreigners they find threatening qualifies as an "invasion." If illegal migration and drug smuggling qualify, why not economic competition (many "national conservatives" view imports as a national security threat)? Why not supposedly harmful cross-border cultural influences (dangerous foreign ideas and art forms are "invading" our people's minds!)? And that list can easily be extended.

If this conclusion were required by the text and original meaning of the Constitution, perhaps there would be no way around it. But that isn't so. As explained in my article and amicus brief, historical and textual evidence overwhelming demonstrate that only an organized armed attack qualifies as an "invasion." As James Madison put it, invasion is "an operation of war." Nor is there any original meaning evidence indicating that courts must defer to state governments on this issue.

The "political questions" doctrine is a judicial invention, not something embedded in text and original meaning itself. I am skeptical that the doctrine makes much sense at all. Even if it should be used in some contexts, there is no reason to think the meaning of "invasion" is the kind of issue that courts cannot or should not resolve. The meaning of that term is at least as clear as that of many other words in the Constitution that courts routinely interpret.  At the very least, the political question doctrine should not be interpreted to mandate the absurd consequence that a single state can start a war virtually anytime it wants—since there is virtually always some substantial amount of illegal migration and cross-border smuggling, at least so long as we have drug prohibition and severe migration restrictions.

Judge Ho also argues that actions by nongovernmental groups can qualify as "invasion." This may be true in some situations, as in the case of attacks by insurgents or terrorist groups. It does not follow that illegal migration, drug smuggling, or other ordinary criminal activity qualify.

Moreover, most of the evidence he cites relates to a situation in the 1870s where the governor of Texas used state militia to combat large-scale cross-border banditry from Mexico. This episode—occurring almost a century of the enactment of the Invasion Clause—sheds little light on the text and original meaning. In a recent opinion, Supreme Court Justice Amy Coney Barrett rightly cautions against  reliance on "[h]istory (or tradition) that long postdates ratification." This is the kind of thing she had in mind.

In addition, the 1870s history doesn't really support Judge Ho's position. In an 1874 letter to the Attorney General (which Judge Ho helpfully reprints in an appendix to is opinion), Texas Governor Richard Coke argued that the Mexican bandits had gone beyond ordinary criminality, and "were making war on the people of Texas and their property." He also stressed that Texas state forces were "not authorized to cross the river for purposes of retaliation, nor to make war on the territory or any of the people of Mexico, but only to pursue marauders going out of Texas, and take from them and bring back property found in their possession belonging in Texas." This stops short of claiming a right to "engage in war." Perhaps most important, the Governor acknowledged that "the officers of the United States Government… have the power to prevent… enforcement" of his order to the Texas troops, and that he will withdraw the order if the federal government requests it. That's a far cry from the claim of virtually unlimited power to declare an "invasion" and engage in war in response claimed by Governor Abbott today.

The dissenting opinion by Judge Dana Douglas has additional criticisms of Ho's opinion on the "invasion" issue. I don't agree with all of her arguments. But she's right to point out that Texas's position "would enable Governor Abbott to engage in acts of war in perpetuity."

In a concurring opinion, Judge Andrew Oldham (another prominent conservative jurist), contends that Judge Ho is wrong to argue the majority was required to address the invasion issue. I think Judge Oldham is probably right about that question, but will leave it to commentators with greater expertise on civil procedure.

Yesterday's ruling is not a final resolution of the buoy case. Technically, it only lifts the preliminary injunction against the buoys issued by the district court. However, the majority's analysis makes clear that the trial court will have to resolve the case in favor of Texas on the issue of "navigability." If so, the invasion question need not be addressed, since the en banc majority signaled it does not have to be.

However, the invasion argument is still in play in the SB 4 case, and Texas—and perhaps other states—are likely to continue making it in the future. So long as they persist in doing so, I will keep on explaining why that argument is dangerously wrong.

UPDATE: In the original version of this post, I indicated that the vote in the en banc Fifth Circuit was 11-6, rather than the correct figure of 11-7. I apologize for the mistake, which has now been corrected.

The post En Banc Fifth Circuit Rules for Texas in Water Buoy Case, but Doesn't Resolve Issue of Whether Illegal Migration Qualifies as "Invasion" appeared first on Reason.com.

BAE Systems and GlobalFoundries are teaming up to strengthen the supply of chips for national security programs, aligning technology roadmaps and collaborating on innovation and manufacturing. Focus areas include advanced packaging, GaN-on-silicon chips, silicon photonics, and advanced technology process development.

Onsemi plans to build a $2 billion silicon carbide production plant in the Czech Republic. The site would produce smart power semiconductors for electric vehicles, renewable energy technology, and data centers.

The global chip manufacturing industry is projected to boost capacity by 6% in 2024 and 7% in 2025, reaching 33.7 million 8-inch (200mm) wafers per month, according to SEMI‘s latest World Fab Forecast report. Leading-edge capacity for 5nm nodes and below is expected to grow by 13% in 2024, driven by AI demand for data center applications. Additionally, Intel, Samsung, and TSMC will begin producing 2nm chips using gate-all-around (GAA) FETs next year, boosting leading-edge capacity by 17% in 2025.

At the IEEE Symposium on VLSI Technology & Circuits, imec introduced:

• Functional CMOS-based CFETs with stacked bottom and top source/drain contacts.
• CMOS-based 56Gb/s zero-IF D-band beamforming transmitters to support next-gen short-range, high-speed wireless services at frequencies above 100GHz.
• ADCs for base stations and handsets, a key step toward scalable, high-performance beyond-5G solutions, such as cloud-based AI and extended reality apps.

Quick links to more news:

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In-Depth
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Global

Wolfspeed postponed plans to construct a $3 billion chip plant in Germany, underscoring the EU‘s challenges in boosting semiconductor production, reports Reuters. The North Carolina-based company cited reduced capital spending due to a weakened EV market, saying it now aims to start construction in mid-2025, two years later than 0riginally planned.

Micron is building a pilot production line for high-bandwidth memory (HBM) in the U.S., and considering HBM production in Malaysia to meet growing AI demand, according to a Nikkei report. The company is expanding HBM R&D facilities in Boise, Idaho, and eyeing production capacity in Malaysia, while also enhancing its largest HBM facility in Taichung, Taiwan.

Kioxia restored its Yokkaichi and Kitakami plants in Japan to full capacity, ending production cuts as the memory market recovers, according to Nikkei. The company, which is focusing on NAND flash production, has secured new bank credit support, including refinancing a ¥540 billion loan and establishing a ¥210 billion credit line. Kioxia had reduced output by more than 30% in October 2022 due to weak smartphone demand.

Europe’s NATO Innovation Fund announced its first direct investments, which includes semiconductor materials. Twenty-three NATO allies co-invested in this over $1B fund devoted to address critical defense and security challenges.

The second meeting of the U.S.–India Initiative on Critical and Emerging Technology (iCET) was held in New Delhi, with various funding and initiatives announced to support semiconductor technology, next-gen telecommunications, connected and autonomous vehicles, ML, and more.

Amazon announced investments of €10 billion in Germany to drive innovation and support the expansion of its logistics network and cloud infrastructure.

Quantum Machines opened the Israeli Quantum Computing Center (IQCC) research facility, backed by the Israel Innovation Authority and located at Tel Aviv University. Also, Israel-based Classiq is collaborating with NVIDIA and BMW, using quantum computing to find the optimal automotive architecture of electrical and mechanical systems.

Global data center vacancy rates are at historic lows, and power availability is becoming less available, according to a Siemens report featured on Broadband Breakfast. The company called for an influx of financing to find new ways to optimize data center technology and sustainability.

In-Depth

Semiconductor Engineering published its Manufacturing, Packaging & Materials newsletter this week, featuring these top stories:

• Single Vs. Multi-Patterning Advancements For EUV
• Precise Control Of Copper Plating And CMP
• Ruthenium Interconnects On Tap
• Opportunities Grow For GPU Acceleration

More reporting this week:

• IC Industry’s Growing Role In Sustainability
• What’s Missing In Test

Market Reports

Renesas completed its acquisition of Transphorm and will immediately start offering GaN-based power products and reference designs to meet the demand for wide-bandgap (WBG) chips.

Revenues for the top five wafer fab equipment (WFE) companies fell 9% YoY in Q1 2024, according to Counterpoint. This was offset partially by increased demand for NAND and DRAM, which increased 33% YoY, and strong growth in sales to China, which were up 116% YoY.

The SiC power devices industry saw robust growth in 2023, primarily driven by the BEV market, according to TrendForce. The top five suppliers, led by ST with a 32.6% market share and onsemi in second place, accounted for 91.9% of total revenue. However, the anticipated slowdown in BEV sales and weakening industrial demand are expected to significantly decelerate revenue growth in 2024. 

About 30% of vehicles produced globally will have E/E architectures with zonal controllers by 2032, according to McKinsey & Co. The market for automotive micro-components and logic semiconductors is predicted to reach $60 billion in 2032, and the overall automotive semiconductor market is expected to grow from $60 billion to $140 billion in the same period, at a 10% CAGR.

The automotive processor market generated US$20 billion in revenue in 2023, according to Yole. US$7.8 billion was from APUs and FPGAs and $12.2 billion was from MCUs. The ADAS and infotainment processors market was worth US$7.8 billion in 2023 and is predicted to grow to $16.4 billion by 2029 at a 13% CAGR. The market for ADAS sensing is expected to grow at a 7% CAGR.

Security

The CHERI Alliance was established to drive adoption of memory safety and scalable software compartmentalization via the security technology CHERI, or Capability Hardware Enhanced RISC Instructions. Founding members include Capabilities Limited, Codasip, the FreeBSD Foundation, lowRISC, SCI Semiconductor, and the University of Cambridge.

In security research:

• Japan and China researchers explored a NAND-XOR ring oscillator structure to design an entropy source architecture for a true random number generator (TRNG).
• University of Toronto and Carleton University researchers presented a survey examining how hardware is applied to achieve security and how reported attacks have exploited certain defects in hardware.
• University of North Texas and Texas Woman’s University researchers explored the potential of hardware security primitive Physical Unclonable Functions (PUF) for mitigation of visual deepfakes.
• Villanova University researchers proposed the Boolean DERIVativE attack, which generalizes Boolean domain leakage.

Post-quantum cryptography firm PQShield raised $37 million in Series B funding.

Former OpenAI executive, Ilya Sutskever, who quit over safety concerns, launched Safe Superintelligence Inc. (SSI).

EU industry groups warned the European Commission that its proposed cybersecurity certification scheme (EUCS) for cloud services should not discriminate against Amazon, Google, and Microsoft, reported Reuters.

Cyber Europe tested EU cyber preparedness in the energy sector by simulating a series of large-scale cyber incidents in an exercise organized by the European Union Agency for Cybersecurity (ENISA).

The Cybersecurity and Infrastructure Security Agency (CISA) issued a number of alerts/advisories.

Education and Training

New York non-profit NY CREATES and South Korea’s National Nano Fab Center partnered to develop a hub for joint research, aligned technology services, testbed support, and an engineer exchange program to bolster chips-centered R&D, workforce development, and each nation’s high-tech ecosystem.

New York and the Netherlands agreed on a partnership to promote sustainability within the semiconductor industry, enhance workforce development, and boost semiconductor R&D.

Rapidus is set to send 200 engineers to AI chip developer Tenstorrent in the U.S. for training over the next five years, reports Nikkei. This initiative, led by Japan’s Leading-edge Semiconductor Technology Center (LSTC), aims to bolster Japan’s AI chip industry.

Product News

UMC announced its 22nm embedded high voltage (eHV) technology platform for premium smartphone and mobile device displays. The 22eHV platform reduces core device power consumption by up to 30% compared to previous 28nm processes. Die area is reduced by 10% with the industry’s smallest SRAM bit cells.​

Alphawave Semi announced a new 9.2 Gbps HBM3E sub-system silicon platform capable of 1.2 terabytes per second. Based on the HBM3E IP, the sub-system is aimed at addressing the demand for ultra-high-speed connectivity in high-performance compute applications.

Movellus introduced the Aeonic Power product family for on-die voltage regulation, targeting the challenging area of power delivery.

Cadence partnered with Semiwise and sureCore to develop new cryogenic CMOS circuits with possible quantum computing applications. The circuits are based on modified transistors found in the Cadence Spectre Simulation Platform and are capable of processing analog, mixed-signal, and digital circuit simulation and verification at cryogenic temperatures.

Renesas launched R-Car Open Access (RoX), an integrated development platform for software-defined vehicles (SDVs), designed for Renesas R-Car SoCs and MCUs with tools for deployment of AI applications, reducing complexity and saving time and money for car OEMs and Tier 1s.

Infineon released industry-first radiation-hardened 1 and 2 Mb parallel interface ferroelectric-RAM (F-RAM) nonvolatile memory devices, with up to 120 years of data retention at 85-degree Celsius, along with random access and full memory write at bus speeds. Plus, a CoolGaN Transistor 700 V G4 product family for efficient power conversion up to 700 V, ideal for consumer chargers and notebook adapters, data center power supplies, renewable energy inverters, and more.

Ansys adopted NVIDIA’s Omniverse application programming interfaces for its multi-die chip designers. Those APIs will be used for 5G/6G, IoT, AI/ML, cloud computing, and autonomous vehicle applications. The company also announced ConceptEV, an SaaS solution for automotive concept design for EVs.

Fig. 1: Field visualization of 3D-IC with Omniverse. Source: Ansys

QP Technologies announced a new dicing saw for its manufacturing line that can process a full cassette of 300mm wafers 7% faster than existing tools, improving throughput and productivity.

NXP introduced its SAF9xxx of audio DSPs to support the demand for AI-based audio in software-defined vehicles (SDVs) by using Cadence’s Tensilica HiFi 5 DSPs combined with dedicated neural-network engines and hardware-based accelerators.

Avionyx, a provider of software lifecycle engineering in the aerospace and safety-critical systems sector, partnered with Siemens and will leverage its Polarion application lifecycle management (ALM) tool. Also, Dovetail Electric Aviation adopted Siemens Xcelerator to support sustainable aviation.

Research

Researchers from imec and KU Leuven released a +70 page paper “Selecting Alternative Metals for Advanced Interconnects,” addressing interconnect resistance and reliability.

A comprehensive review article — “Future of plasma etching for microelectronics: Challenges and opportunities” — was created by a team of experts from the University of Maryland, Lam Research, IBM, Intel, and many others.

Researchers from the Institut Polytechnique de Paris’s Laboratory of Condensed Matter for Physics developed an approach to investigate defects in semiconductors. The team “determined the spin-dependent electronic structure linked to defects in the arrangement of semiconductor atoms,” the first time this structure has been measured, according to a release.

Lawrence Berkeley National Laboratory-led researchers developed a small enclosed chamber that can hold all the components of an electrochemical reaction, which can be paired with transmission electron microscopy (TEM) to generate precise views of a reaction at atomic scale, and can be frozen to stop the reaction at specific time points. They used the technique to study a copper catalyst.

The Federal Drug Administration (FDA) approved a clinical trial to test a device with 1,024 nanoscale sensors that records brain activity during surgery, developed by engineers at the University of California San Diego (UC San Diego).

Events and Further Reading

Find upcoming chip industry events here, including:

Upcoming webinars are here.

Semiconductor Engineering’s latest newsletters:

Automotive, Security and Pervasive Computing
Systems and Design
Low Power-High Performance
Test, Measurement and Analytics
Manufacturing, Packaging and Materials

The post Chip Industry Week In Review appeared first on Semiconductor Engineering.

Enlarge (credit: Aurich Lawson | Getty Images)

Pornhub will soon be blocked in five more states as the adult site continues to fight what it considers privacy-infringing age-verification laws that require Internet users to provide an ID to access pornography.

On July 1, according to a blog post on the adult site announcing the impending block, Pornhub visitors in Indiana, Idaho, Kansas, Kentucky, and Nebraska will be "greeted by a video featuring" adult entertainer Cherie Deville, "who explains why we had to make the difficult decision to block them from accessing Pornhub."

Pornhub explained that—similar to blocks in Texas, Utah, Arkansas, Virginia, Montana, North Carolina, and Mississippi—the site refuses to comply with soon-to-be-enforceable age-verification laws in this new batch of states that allegedly put users at "substantial risk" of identity theft, phishing, and other harms.

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A Texas public library can't remove books simply because they discuss topics like "butts and farts," a federal court ruled last week. 

The case is one of the more bizarre instances of library censorship in recent years, but it nonetheless led to a decisive option from the majority, who found that it is unconstitutional to remove library books out of a "desire to limit access to ideas with which they [disagree]."

The legal battle began after Llano County Judge Ron Cunningham received complaints in 2021 concerning "pornographic and overtly sexual books in the library's children's section." The complainants were particularly upset about children's books about "butts and farts."

One of the aggrieved citizens, Llano resident Rochelle Wells, "had been checking out those books continuously for months to prevent others from accessing them."

Following the complaint, Cunningham told the library's director, Amber Milum, to remove the books from library shelves. After more complaints were lodged, Cunningham told the library director to also remove several other books that "depict any type of sexual activity or questionable nudity."

Milum later testified that she would not have removed the books as part of typical curation activities—she only removed them because of directions from county officials. 

Making matters worse, in January 2022, the county's library board was dissolved and replaced with new board members. Two of the complainers who successfully pressured Cunningham to order books removed were placed on the new board.

According to the opinion, the new board "implemented several policy changes, including prohibiting Milum from attending their meetings and requiring her to seek approval before purchasing any new books."

Seven library patrons brought a suit in 2022, arguing that the removal of the book was unconstitutional viewpoint discrimination. Eventually, a lower court agreed, granting a preliminary injunction requiring defendants to return the removed books. However, the county appealed. Just this week, a panel of judges from the 5th Circuit Court of Appeals sided with the plaintiffs.

Referencing other cases surrounding attempted library censorship, the majority opinion constructed a series of "rules" about how books can be removed from library collections. "Librarians may consider books' contents in making curation decisions," Judge Jaques Weiner Jr. wrote in the majority opinion. "Their discretion, however, must be balanced against patrons' First Amendment rights…a book may not be removed for the sole—or a substantial—reason that the decision-maker does not wish patrons to be able to access the book's viewpoint or message."

The motivation for removing targeted books from Llamo public libraries doesn't meet this test. The opinion notes that censors wanted the books gone simply because they didn't like their content. 

"Government actors may not remove books from a public library with the intent to deprive patrons of access to ideas with which they disagree," the opinion concludes. "Because that is apparently what occurred in Llano County, Plaintiffs have demonstrated a likelihood of success on the merits of their First Amendment claim."

The post Texas Public Library Can't Remove Books About 'Butts and Farts,' Federal Court Rules appeared first on Reason.com.

Enlarge (credit: Getty | Yui Mok)

The strain of H5N1 bird flu isolated from a dairy worker in Texas was 100 percent fatal in ferrets used to model influenza illnesses in humans. However, the virus appeared inefficient at spreading via respiratory droplets, according to newly released study results from the Centers for Disease Control and Prevention.

The data confirms that H5N1 infections are significantly different from seasonal influenza viruses that circulate in humans. Those annual viruses make ferrets sick but are not deadly. They have also shown to be highly efficient at spreading via respiratory droplets, with 100 percent transmission rates in laboratory settings. In contrast, the strain from the Texas man (A/Texas/37/2024) appeared to have only a 33 percent transmission rate via respiratory droplets among ferrets.

"This suggests that A/Texas/37/2024-like viruses would need to undergo changes to spread efficiently by droplets through the air, such as from coughs and sneezes," the CDC said in its data summary. The agency went on to note that "efficient respiratory droplet spread, like what is seen with seasonal influenza viruses, is needed for sustained person-to-person spread to happen."

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Sylvia Gonzalez, a former Castle Hills, Texas, city council member, plausibly alleges that she was arrested on a trumped-up charge in retaliation for conduct protected by the First Amendment. So does Priscilla Villarreal, an independent journalist in Laredo, Texas. But in backing up that claim, Gonzalez, whose case will soon be decided by the Supreme Court, faces a problem that Villarreal does not: It is hard to say how often people engage in the conduct that police cited to justify her arrest, which involved putting a petition in her personal folder during a city council meeting. Villarreal, by contrast, was arrested for asking questions, something that journalists across the country do every day.

Last January, the U.S. Court of Appeals for the 5th Circuit nevertheless ruled, in an opinion by Judge Edith Jones that provoked four sharp dissents authored or joined by seven of her colleagues, that Villarreal's arrest was not "obviously unconstitutional." Thirteen briefs supporting Villarreal's petition for Supreme Court review—submitted by an ideologically diverse mix of groups and individuals, including organizations ranging from the Manhattan Institute to the Constitutional Accountability Center—underline the chilling implications of that astonishing conclusion.

"No right is more fundamental to the practice of journalism than the one the Fifth Circuit declined to recognize: the right to ask public officials for information," a brief submitted by the Reporters Committee for Freedom of the Press and 21 news organizations notes. They urge the Supreme Court to resolve the "chilling uncertainty" created by the appeals court's decision and "reaffirm the fundamental proposition that '[a] free press cannot be made to rely solely upon the sufferance of government to supply it with information.'"

Villarreal, who is represented by the Foundation for Individual Rights and Expression, is asking the Supreme Court to uphold that principle, which her arrest blatantly violated. Her alleged crime, the Institute for Justice notes, consisted of "peacefully asking a police officer to corroborate information for two developing stories—a routine due-diligence and newsgathering practice used by journalists across the country." The two stories, which Villarreal posted on her locally popular Facebook page, involved a public suicide and a fatal car crash. Villarreal asked a Laredo police officer to confirm information about those incidents that Villarreal had received from other sources. By doing that, police and prosecutors claimed, Villarreal committed two felonies.

To justify those charges, police cited Section 39.06(c) of the Texas Penal Code, an obscure, rarely invoked law that applies to someone who "solicits or receives from a public servant" information that "has not been made public" with the "intent to obtain a benefit." The claim that Villarreal had violated that law was absurd for several reasons.

First, Section 39.06(c), which deals with "misuse of official information," is part of a chapter addressing "abuse of office." Its roots go back to a 1973 law that applied to "a public servant" who "acquires or aids another to acquire a pecuniary interest in any property, transaction, or enterprise that may be affected by" information that "has not been made public" but to which "he has access in his official capacity." The statute also covered "a public servant" who "speculates or aids another to speculate on the basis of the information." Over the years, legislators broadened the definition of the offense, reclassified it as a felony, and expanded the law beyond government officials. But in light of its history and statutory context, Section 39.06(c) is clearly aimed at curtailing official corruption, not journalism.

Second, the Texas Penal Code defines "benefit" as "anything reasonably regarded as economic gain or advantage." What "economic gain or advantage" did Villarreal allegedly seek to obtain by asking a cop about a suicide and an accident? According to the arrest affidavits, it was an increase in her Facebook traffic. Jones' opinion, which drips with contempt for Villarreal's "journalistic style," notes that she "boasts over one hundred thousand Facebook followers and a well-cultivated reputation, which has engendered publicity in the New York Times, free meals 'from appreciative readers,' 'fees for promoting a local business,' and 'donations for new equipment necessary to her citizen journalism efforts.'" This sweeping definition of "benefit" would apply to any journalist who attracts readers and/or earns money by publishing information that previously "has not been made public."

Third, Section 39.06 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 (TPIA). The arrest affidavits did not address the latter requirement at all. The 5th Circuit suggested the information that Villarreal obtained was covered by Section 552.108(a)(1) of the TPIA, which says government officials do not have to disclose information when doing so might compromise an ongoing investigation. While law enforcement agencies frequently invoke that vague provision, the information it covers is not "prohibited from disclosure." The TPIA explicitly gives agencies the discretion to release information even when they are not required to do so.

The MuckRock Foundation, which "has helped thousands of journalists, professionals, and ordinary citizens request, share, and understand public records," notes that Laredo's reading of Section 39.06(c) would lead to "the absurd result of imposing liability not only on those who seek 'confidential' information, but on those who request information that the government may, but need not, make public." Under that interpretation, anyone who asks for information that is deemed to be covered by a TPIA exception is committing a felony. As a brief from half a dozen journalists (including me) explains, Texas agencies that don't want to disclose information frequently seek support from the state attorney general's office, which in 2015 "issued over 7,000 rulings based on § 552.108(a)(1) alone." Yet the thousands of people whose TPIA requests are rejected each year have never been "arrested or prosecuted for their requests."

Laredo cops investigated Villarreal for months, so they had plenty of time to consider whether their interpretation of Section 39.06(c) was reasonable. So did the prosecutors who signed off on the case. Yet they did not even bother to present a plausible argument that Villarreal's conduct met the elements of this offense, and they were unfazed by the obvious First Amendment problems with criminalizing basic journalism. The charges were ultimately dismissed by a judge who deemed Section 39.06(c) unconstitutionally vague.

These cops and prosecutors—who, like Jones, were irked by Villarreal's "journalistic style"—were determined to pin charges on her without regard to statutory requirements or constitutional constraints. Yet according to the 5th Circuit, they cannot be held accountable for their vindictive lawlessness because it was not "clearly established" that arresting a journalist for practicing journalism was unconstitutional. Since they supposedly had no way of knowing that, they received qualified immunity.

The Supreme Court grafted qualified immunity onto 42 USC 1983, a federal law that authorizes people to sue government officials who violate their constitutional rights. The doctrine is supposedly designed to protect officials from unanticipated liability for "split-second" decisions in situations where they have little opportunity for careful reflection. That rationale, the Americans for Prosperity Foundation notes, does not apply to the sort of "intentional and slow-moving infringement of First Amendment rights" that Villarreal's case exemplifies. The protections offered by Section 1983, the brief says, "come to nothing where state actors may purposefully infringe First Amendment rights and then rely on prolix state law to trigger qualified immunity, claiming they did not know any better."

In this case, that claim is risible. "Villarreal's arrest obviously violated the Constitution," the Institute for Justice notes. "No reasonable government official would think the First Amendment permits criminalizing plain speech or routine journalism."

Contrary to what the 5th Circuit held, the Young America's Foundation and the Manhattan Institute say, it has been "clearly established for over 50 years" that "journalists and citizens" have a First Amendment right to "ask questions of their government officials." The Supreme Court has upheld that right in a line of decisions beginning with Branzburg v. Hayes in 1972. In that case, the Court rejected the idea that "news gathering does not qualify for First Amendment protection," without which "freedom of the press could be eviscerated."

Seven years later in Smith v. Daily Mail, the Court ruled that West Virginia violated the First Amendment when it prohibited newspapers from publishing the names of juvenile offenders without judicial permission. The justices held that the First Amendment protects "routine newspaper reporting techniques" and that the government may not "punish the truthful publication" of "lawfully obtained" information. As dissenting 5th Circuit Judge James E. Graves Jr. noted, the Supreme Court "has made clear that the First Amendment protects the publication of information obtained via 'routine newspaper reporting techniques'—which include asking for the name of a crime victim from government workers not clearly authorized to share such information."

These longstanding precedents are not the only reason the cops who arrested Villarreal should have known better. As the brief I joined points out, police officers across the country are accustomed to fielding questions from reporters, and department policies frequently encourage them to "work in cooperation with the media," as a general order to Washington, D.C., officers puts it. "Based on the TPIA, police department regulations, officer training on responding to press inquiries, and personal experience dealing with reporters," the brief says, "a reasonable officer would know that journalists are permitted to ask police officers the names of accident and suicide victims. A reasonable officer would know that reporters ask for such information every day."

You might think that Villarreal's arrest, which relied on a quirky reading of a little-used law, poses little realistic threat to journalists in Texas or elsewhere. But the briefs supporting Villarreal emphasize that police can always find an excuse to arrest journalists who annoy them. The brief I joined describes a couple of examples: the 2023 arrest of NewsNation reporter Evan Lambert for "trespassing" by covering a governor's press conference in Ohio and the 2020 arrest of radio reporter Josie Huang for "obstructing a peace officer" by using her phone to record an encounter between protesters and Los Angeles County sheriff's deputies.

"Retaliatory arrests have become an increasingly common occurrence," the Law Enforcement Action Partnership (LEAP) notes. "This trend is a byproduct of the ever-growing size of modern criminal codes." Thanks to those proliferating prohibitions, Justice Neil Gorsuch has observed, "almost anyone can be arrested for something." A cop "who may be inclined to punish a disfavored speaker—such as a journalist, as here—can therefore readily find a minor offense they committed and use that to justify an arrest," LEAP says. If police are emboldened to harass journalists this way, it warns, retaliatory arrests will become even more common.

That threat is especially acute for reporters who do not have the backing of a professional news outlet. Independent journalists Avi Adelman and Steven Monacelli, who "have been arrested or detained by police officers while reporting on law enforcement's public performance of their duties," note that increasingly strict police control of information may force a reporter to rely on the sort of "backchannel source" that Jones condemned Villarreal for using. "If using alternative sources exposes journalists to the risk of official retribution," Adelman and Monacelli warn, "journalists will become little more than conduits for government public relations copy."

Jones dismissed the idea that Villarreal is "a martyr for the sake of journalism." She seems to think independent reporters like Villarreal don't qualify as "real" journalists because they don't follow the rules that "mainstream, legitimate media outlets" do. In addition to criticizing Villarreal's use of a "backchannel source," a standard journalistic practice, Jones faulted her for "capitaliz[ing] on others' tragedies to propel her reputation and career," which is an apt, if cynical, description of what professional reporters routinely do. These criticisms make you wonder if Jones has ever watched the local news or noticed that "mainstream, legitimate media outlets" often carry stories that cite anonymous government sources.

Contrary to Jones' take, the critics who are urging the Supreme Court to overrule the decision she wrote include "mainstream, legitimate media outlets" such as ABC, NBC, The Atlantic, The Boston Globe, The New York Times, and The Washington Post. It is possible they know a little bit more about how journalism works than Jones does.

The post These Strange Bedfellows Want SCOTUS To Remind the 5th Circuit That Journalism Is Not a Crime appeared first on Reason.com.

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

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

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

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

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

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

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

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

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

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

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

That there are government officials who politicize the law is about as foundational to the discourse as any complaint I can think of. The criticism is sometimes quite fair. And for the latest example of a soft-on-crime politician flouting law and order, we can look to Texas Gov. Greg Abbott.

Abbott, of course, is no self-styled progressive. But his recent decision to pardon Daniel Perry, who was convicted last year of murdering Garrett Foster, channels the spirit of the progressive prosecutors he criticizes for allegedly refashioning the law to suit their ideological preferences. He just has different targets.

The governor, who last year urged the Texas Board of Pardons and Paroles to recommend a pardon for Perry, doesn't see it that way. "Texas has one of the strongest 'Stand Your Ground' laws of self-defense that cannot be nullified by a jury or a progressive District Attorney," he wrote in a statement yesterday, approving the pardon after the board officially obliged his request. (It's worth noting that the board, whose members are appointed by the governor, circumvented its own requirement that "evidence of actual innocence from at least two trial officials, or the findings of fact and conclusions of law from the district judge indicating actual innocence" be submitted to even consider such a pardon.)

It is absolutely true that the right to self-defense is vital. And to argue that Perry—who, prior to killing Foster at a 2020 Black Lives Matter protest, wrote that he wanted to "shoot the [protesters] in the front and push the pedal to the metal"—acted in self-defense is to make a total mockery of that right and those who've had to exercise it.

It is also true that many district attorneys, some of them so-called "progressive" prosecutors, appear to disdain that right. There are the cases across New York City I've covered, for example, where prosecutors are unconscionably seeking lengthy prison terms for people who acted in self-defense but had the audacity to do so with an unlicensed gun. That includes the case of Charles Foehner, an elderly man who shot a mugger in Queens, after which law enforcement brought so many weapons charges against him that Foehner would go to prison for life if convicted on all. That was in June 2023. In November, LaShawn Craig of Brooklyn shot a masked man who'd entered his apartment. Though prosecutors concede the shooting was in self-defense, they also charged him with several weapons offenses, including criminal possession of a weapon, a violent felony.

And then, most famously, there was Kyle Rittenhouse, whose 2021 prosecution for murder polarized much of the nation, despite that, if you knew the facts, it was an obvious example of self-defense—something I made very clear at the time.

There are some interesting parallels between Rittenhouse's case and Perry's case that are hard to ignore. Both men used their guns at protests against police brutality, many of which popped up across the U.S. in the summer of 2020. The shootings happened exactly a month apart. Then their stories diverge considerably, ending in an acquittal and a conviction, because the way they used their firearms was quite different, despite the culture war backdrop being the same. Both of these things can be true.

In July 2020, Perry ran a red light and drove into a crowd of protesters. That in and of itself, of course, is not enough to deduce that he was looking for a fight. His own statements prior to doing so, however, add a great deal of helpful context and show his frame of mind at the time. "I might have to kill a few people on my way to work they are rioting outside my apartment complex," he wrote on social media on May 31, 2020. Also in May, he threatened to a friend that he "might go to Dallas to shoot looters." And then in mid-June, he sent that message about going to a protest, "shoot[ing] the ones in the front," and then careening his car through the hubbub.

This was part of a pattern. Austin police detective William Bursley testified, for instance, that Perry searched on Safari for "protesters in Seattle gets shot," "riot shootouts," and "protests in Dallas live." It is not hard to connect the dots between his searches and messages.

So what about that stand-your-ground defense Abbott alleges the jury nullified? Core to Perry's case and trial was whether he reasonably feared for his life that July evening. Foster indeed had a rifle on him—because open carry is legal in Texas. The Second Amendment does not solely exist for people with conservative views. The big question then: Was Foster pointing the gun at Perry when he approached his vehicle? For the answer, we can go to Perry himself, who told law enforcement that he was not. "I believe he was going to aim at me," he said. "I didn't want to give him a chance to aim at me." But that is not a self-defense justification, as Perry cannot claim clairvoyance.

That the jury reached the conclusion they did is not a mystery, nor is it an outrage. What is outrageous, however, is that a governor who claims to care about law and order has made clear that his support for crime victims is at least in part conditional on having the "right" politics.

The post Daniel Perry's Pardon Makes a Mockery of Self-Defense appeared first on Reason.com.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Compelled Speech and Court Rulings

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

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

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

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

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

Yesterday, the Supreme Court denied the stay request.

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

Ignoring Porn-Law Precedent 

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

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

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

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

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

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

More from Geidner:

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

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

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

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

What's Next for H.B. 1181?

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

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

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

More Sex & Tech News

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

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

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

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

Today's Image

The post Supreme Court Won't Stop Texas Porn Law From Taking Effect appeared first on Reason.com.

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."

© Copyright 2024 by Creators Syndicate Inc.

The post Journalism Is Not a Crime, Even When It Offends the Government 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.

The Supreme Court is currently considering two cases in which social media firms challenge the constitutionality of Texas and Florida laws requiring them to host content the platforms would prefer to exclude. The issue before the Court is whether these laws violate the Free Speech Clause of the First Amendment. But, in a recent Reason article, Ethan Blevins of the Pacific Legal Foundation—one of the nation's leading public interest law firms litigating takings cases—argues they also violate the Takings Clause of the Fifth Amendment:

While pundits and lawyers cross swords over free speech on social media, a quieter yet critically important principle is being ignored: property rights. In addition to violating the First Amendment, the rush to force social media platforms to host content violates the Fifth Amendment as well—in particular, the Takings Clause.

The Takings Clause says that government shall not take private property "for public use, without just compensation." While many are familiar with the clause's importance when the government wants to seize land through eminent domain, courts have also applied this right as a limit on the ability to overregulate property. For example, if a beach town requires the owners of oceanfront properties to let the public walk across their yards to get to the beach, this would require compensation, because the regulation effectively takes the property owner's right to exclude, a cornerstone of ownership.

Likewise, the Takings Clause shields social media platforms from regulations requiring they host content or users they want to exclude. These platforms have as much right to eject unwelcome digital interlopers as homeowners do to stop the government from using their yard as a public right of way—unless they are given just compensation. If states intend to force social media apps to host users and content against their wishes, they will have to pay for it….

Both state and federal laws already treat online platforms as property. All states criminalize unauthorized access to computer systems, often expressly framing these crimes as trespass….

Laws that mandate online platforms to accept certain content or users effectively invade private property. And the courts have established that when the government grants third parties access to private property without the owner's consent, that requires compensation. The federal government had to pay a private marina owner in Hawaii before it could be compelled to allow public boating access. Similarly, the Supreme Court ruled just a few years ago that California had to compensate employers after it forced them to let union representatives access their property.

I very much agree, and previously made a similar argument here:

The Takings Clause bars government from taking "private property" without paying "just compensation." In its 2021 ruling in Cedar Point Nursery v. Hassid, the Supreme Court ruled (correctly, in my view) that even a temporary government-mandated "physical occupation" or invasion of private property counts as a per se taking….

The Florida and Texas social media laws are also blatant attacks on the right to exclude. No one doubts that the Twitter site and its various features are Twitter's private property. And the whole point of the Florida and Texas laws is to force Twitter and other social media firms to grant access to users and content the firms would prefer to exclude, particularly various right-wing users. Just as the plaintiffs in Cedar Point wanted to bar union organizers from their land, so Twitter wishes to bar some content it finds abhorrent (or that might offend or annoy other users)….

To be sure, there are obvious differences between virtual property, such as a website, and more conventional physical property, like that involved in the Cedar Point case. But the Taking Clause nonetheless applies to both. If Texas decided to seize the Twitter site, bar current users, and instead fill it with content praising the state government's policies, that would pretty obviously be a taking, much like if California decided to seize the Cedar Point tree nursery's land.  In the same way, requiring Twitter to host unwanted content qualifies as an occupation of its property, no less than requiring a landowner to give access to unwanted entrants…

One could argue that forcing a website owner to host unwanted users isn't really a "physical occupation," because the property is virtual in nature. But websites, including the big social media firms, use physical server space. Other things equal, a site with more user-generated content requires more such space than one with less. Even aside from the connection to physical infrastructure, it seems to me that occupation of virtual "real estate" is analogous to occupation of land. Both are valuable forms of private property from which the owner generally has a right to exclude.

The post Laws Requiring Social Media Firms to Host Content they Prefer to Exclude Violate the Takings Clause appeared first on Reason.com.

Last fall, we wrote about Yelp going to court in California to try to block Texas’s indicted and facing trial shortly Attorney General Ken Paxton from suing the company for using its speech to accurately warn users that “Crisis Pregnancy Centers” do not generally offer any actual medical care.

As you may know, anti-abortion advocates have opened up so-called “crisis pregnancy centers,” which are designed to look like medical facilities to help pregnant mothers consider their options. Many people are pointed to these crisis centers instead, when searching for potential abortion providers. The centers pretend to be a neutral advocate to help them consider their options, while in reality they are designed to steer expectant mothers away from abortion.

Yelp, quite reasonably, decided to use its own First Amendment rights to provide some more info about those crisis pregnancy centers to better inform potential visitors. It posted notices on crisis pregnancy centers saying: “This is a Crisis Pregnancy Center. Crisis Pregnancy Centers typically provide limited medical services and may not have licensed medical professionals onsite.”

Ken Paxton, who cosplays as a “free speech” supporter on the internet, wrote a letter to Yelp threatening to sue them for this speech. In response, Yelp changed the message to be even more accurate, but Paxton was still upset with their speech, which now said “This is a Crisis Pregnancy Center. Crisis Pregnancy Centers do not offer abortions or referrals to abortion providers.” This is accurate speech, which even Paxton admits is accurate. He just doesn’t like it.

After Texas threatened to sue Yelp once again, Yelp went to court first in a California federal court to get Paxton to shut up and to stop interfering with the company’s free speech rights. Paxton responded by suing Yelp in a Texas state court. Unfortunately, the court in California “reluctantly” rejected the lawsuit due to “Younger abstention,” which basically says a federal court doesn’t have jurisdiction over a case while a state court is considering the same matter. Yelp has appealed to the 9th Circuit.

In the meantime, though, last week, the Texas state court tossed out Paxton’s lawsuit. There’s not much to go on in the order, as it basically just says “we agree with Yelp’s special appearance” in this case.

Having considered Defendant Yelp Inc.’s (“Yelp”) Verified Special Appearance (“Special Appearance”), the responses, and the replies, if any, the Court finds that the Special Appearance should be GRANTED.

You can look at the “Special Appearance” by Yelp which lays out the main reasons the case should be dismissed, with the big one being the court’s lack of personal jurisdiction over Yelp:

This case involves a misguided lawsuit by the State of Texas (“State”) against Yelp, a California-based website operator with no offices in Texas, for allegedly violating the Texas Deceptive Trade Practices Act (“DTPA”) by posting a truthful consumer notice about crisis pregnancy centers on its nationwide website. In the Petition, the State does not allege that Yelp is “at home” in Texas, that the consumer notice was purposely directed at Texas, or that the DTPA claim arises from or relates to Yelp’s contacts with Texas. Instead, the State admits that Yelp is located in San Francisco, California, alleges that Yelp “targeted pregnancy resources centers nationwide,” and concedes that the DTPA claim arises out of a notice posted, from California, on the Yelp business pages of “every pregnancy resource center across the nation,” not merely those in Texas.

Yelp files this Special Appearance because the Petition should be dismissed for lack of personal jurisdiction for many reasons. Yelp, a nonresident of Texas, lacks sufficient minimum contacts with Texas to demonstrate purposeful availment, the DTPA claim does not arise from or relate to Yelp’s contacts with Texas, and the exercise of jurisdiction over Yelp would offend traditional notions of fair play and substantial justice. Yelp should not be haled across the country into a foreign jurisdiction to respond to a baseless claim premised on conduct that occurred exclusively in California.

So, it sure sounds like the Texas court tossed the case out on jurisdictional grounds, without even needing to get to the ridiculousness of Texas trying to sue a company over its accurate speech. The case in front of the 9th Circuit remains in play, though I’m not sure how this latest situation will play into that. If the Texas case is now dead (though, I guess Texas could appeal), then the Younger abstention issue should be moot?

Either way, it’s yet another example (one of so many) of Texas showing off its unconstitutional, censorial tendencies — in a state with leadership who claims to be supportive of free speech.

Today, federal District Court Judge Drew Tipton issued a ruling in Texas v. Department of Homeland Security, rejecting a suit filed by a coalition of red states led by Texas, challenging the legality of the Biden Administration's CNVH parole program (also sometimes called "CHNV"), which allows migrants from four Latin American countries to enter the United States and live and work here for up to two years, if they can find a US-resident sponsor willing to support them.

Judge Tipton (a conservative Trump appointee) ruled that the states lacked standing to bring a lawsuit challenging the program. The plaintiff states argued Texas has standing because parolee migrants entering the state would lead the state government to incur various additional costs, thereby proving the necessary "injury in fact" required by Supreme Court standing precedent. But Judge Tipton concluded the evidence shows that the CNVH program actually reduces the number of migrants from these countries who enter the state. Thus, it doesn't increase the costs borne by the state, and therefore Texas hasn't suffered an "injury" sufficient to get standing:

To prove an injury in fact, Texas must show "an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S.Ct. at 2136…. In the
context of state challenges to federal immigration policies, states have historically proven injury-in-fact by demonstrating the additional costs paid across state-funded industries because of additional aliens….

Texas's theory for standing "was based on allegations that the CHNV processes were likely to increase the number of CHNV nationals in the State and thus increase the State's costs…."  And as observed by Intervenors [a group of sponsors of CHNV participants], the trial record disproves this theory…. Intervenors argue that the undisputed data presented at trial confirms that the CHNV Parole Program has reduced the total number of individuals from the four countries, and consequently, Texas has actually spent less money as a result of the Program….

Judge Tipton canvasses the relevant Supreme Court and Fifth Circuit court of appeals precedent and finds that the right way to measure costs is to consider the net impact of the program in question, not just the costs that may be created by program beneficiaries taken in isolation. Since the evidence shows the program reduces the total number of CNVH migrants in Texas, it actually saves Texas money, and thus the state lacks standing. Earlier in the litigation, the state plaintiffs stipulated that only Texas's costs were to be considered, not those of the other states.

How does the CNVH parole program actually reduce the number of migrants from these four countries entering Texas? Because it allows program participants to come to the US legally without ever having to cross the southern border, many migrants who might otherwise have tried to enter Texas or other border states illegally instead seek legal entry under CNVH. Many go directly to their final destinations in other states by ship, plane, or other means of transportation. Even those who do enter through border states might not stay there very long.

I covered this point in much more detail in an amicus brief I filed defending the legality of the program, on behalf of the Cato Institute, MedGlobal (a medical non-profit serving migrants and refugees, among others), and myself. Our brief does not address standing. But, for reasons  explained in the brief, the alleviation of pressure on the border also matters for the merits of the case (which Judge Tipton didn't reach). See also my September 2023 article about the case in the Hill.

I am skeptical of narrow definitions of standing and would have preferred the court to uphold the CNVH program on the merits. However, Judge Tipton does make a good argument that this is the right result under current standing precedent. It is also broadly consistent with the Supreme Court's June 2023 8-1 decision in United States v. Texas, holding that many of the same red states that brought this case lack standing to challenge the Biden administration's immigration enforcement guidelines, even though the states argued that the administration's decision not to deport certain migrants increases states' costs (though there are also ways to potentially distinguish the two cases).

As David Bier and I explain in a November USA Today article, CNVH could do even more to alleviate border problems—and help migrants fleeing horrific oppression and violence—if the Biden administration were to expand it to cover more countries, and lift the arbitrary 30,000 per month cap on the number of participants. The cap has created a massive backlog of applicants.

And, while it may not be relevant to standing analysis (because of the indirect nature of such effects), the economic benefits of increased migration generally outweigh any additional costs to state and federal governments, especially given the immigrants also pay taxes.

This decision is likely to be appealed to the Fifth Circuit. Alternatively, the states might try to find some other way to get standing. The latter, however, may prove difficult if Judge Tipton's ruling stands. For the moment, however, the CNVH program can continue.

This case likely isn't over. But it's not a good sign for the states that they lost in district court despite the fact they chose to file in this district specifically because they were likely get Judge Tipton to hear the case. He's a conservative whom many observers expected to be sympathetic to the states' position.

NOTE: As indicated above, I filed  an amicus brief in this case defending the legality of the program, on behalf of the Cato Institute, MedGlobal, and myself. However, the brief does not address the issue of standing. What I write on that question represents solely my own views, and not those of Cato, MedGlobal, or anyone else.

I am, as discussed in the brief, a sponsor in the Uniting for Ukraine program, which is based on the same statutory authority as CNVH, but was not challenged by plaintiff states.

The post Federal District Court Rules Red States Lack Standing to Challenge Legality of Immigration Parole Program for Migrants from Four Latin American Countries appeared first on Reason.com.

A San Marcos, Texas, couple would like to remove a reference to a Ku Klux Klan supporter from the front of their home, but the local historic preservation board has said no dice.

The reference in question is a large metal "Z" bolted to a wrought iron Juliette balcony on the front of Kristy Kay Money and Rolf Jacob Sraubhaar's house in San Marcos' Burleson Historic District.

That "Z" is the initial of the home's owner and builder, Frank Zimmerman, a prominent local businessman and owner of the city's downtown historic theater who served as San Marcos mayor from 1949 to 1951.

Zimmerman also has ties to the Ku Klux Klan. His theater hosted Ku Klux Klan days and screenings of Birth of a Nation.

Given this legacy, Money and Sraubhaar decided they wanted to remove the balcony and its large "Z" from the front of their home.

But because their home is in a historic district, although not a historic structure itself, the couple needed to get the sign-off of San Marcos' Historic Preservation Commission to alter its façade. In May 2023 the commission voted unanimously to deny their application to remove the balcony from the front of the house.

In response, Money and Sraubhaar sued San Marcos in federal court, arguing that the city's refusal to let them remove the balcony and initial is an uncompensated physical taking in violation of the Fifth and 14th Amendments and an unconstitutional exercise of police powers under the Texas Constitution.

"It's an occupation of property for a public benefit. It's for an alleged public purpose, in this case, the people on the design review board want to look at it. So, we think that's a taking," says Chance Weldon, a lawyer with the Texas Public Policy Foundation, which is representing the couple.

In response, San Marcos filed a motion to dismiss the case, primarily arguing that Money and Sraubhaar should first have to appeal their case to the city's Zoning Board of Adjustment before taking their case to court.

The U.S. District Court for the Western District of Texas Austin Division is currently considering the case.

"We think it's wholly un-American that if you want to change something to the aesthetic of your property, you have to get sign-off from a board of unelected bureaucrats based on what they think looks right," Weldon tells Reason.

The post Historic Preservation Board Stops Family Removing KKK Supporter's Initial From Front of their House appeared first on Reason.com.

Earlier today, as Orin Kerr notes, federal district court Judge David Alan Ezra issued a decision holding—among other things—that illegal migration does not qualify as "invasion" under the Constitution. Article I, § 10, Clause 3 of the Constitution states that "No State shall, without the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." Texas claims that undocumented migration and cross-border illegal drug smuggling qualify as an invasion under this Clause, and therefore authorize Texas to "engage in war" in response, including taking measures that would otherwise be barred by federal statute.

In this case, Texas is defending the legality of SB 4, a news state law that criminalizes unauthorized migration and gives Texas state courts the authority to order removal of migrants convicted under the law. If Texas's invasion argument fails, SB 4 might be preempted by federal law.

Judge Ezra's ruling is far from the first court decision to conclude that illegal migration is not invasion. There have been several previous such cases, including three appellate court decisions, and Judge Ezra's own recent ruling in United States v. Abbott, a case where the federal government is suing  Texas for installing floating buoy barriers in the Rio Grande River in violation of the federal Rivers and Harbors Act of 1899 (that decision was upheld by the US Court of Appeals for the Fifth Circuit, but the case is now under review by the en banc Fifth Circuit.

But today's opinion is by far the most thorough judicial analysis of this important issue. Judge Ezra outlines extensive evidence indicating that the text and original meaning of the the Constitution indicates that only an armed attack qualifies as "invasion":

Ultimately, all tools of constitutional construction cut against Texas's position.  Contemporary definitions of "invasion" and "actually invaded" as well as common usage of the term in the late Eighteenth Century predominantly referred to an "invasion" as a hostile and organized military force, too powerful to be dealt with by ordinary judicial proceedings. This Court could not locate a single contemporaneous use of the term to refer to surges in unauthorized foreign immigration. The text and structure of the State War Clause imply that "invasion" was to be used sparingly for temporary, exigent, and dangerous circumstances. Put simply, the overwhelming textual and historical evidence does not support Texas's understanding of the State War Clause.

As James Madison put it in his Report of 1800, "Invasion is an operation of war." Judge Ezra extensively canvasses the ratification debates and other Founding-era evidence. He also highlights the radical implications of Texas's position, which woul effectively allow  states to usurp the federal government's war powers "whenever they disagreed with federal immigration policy." If it is correct, Texas and other states could "engage in war" against neighboring countries anytime there is substantial illegal migration, which i has been the case at almost all times, ever since the US government first imposed significant immigration restrictions applying to migrants crossing the southern border. Thus, Texas would be free to, for example, use its state National Guard to attack Mexico in order to forestall illegal migration and drug smuggling from there.

Judge Ezra's ruling is also the first to highlight the dire implications of the equation of immigration and invasion for the writ of habeas corpus:

Article 1, Section 9 mentions "invasion" to note that the "Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Id. art. 1, § 9, cl. 2. The suspension of habeas corpus is a stunning exercise of power. The Writ of Habeas Corpus has been suspended only four times in this country's history: the Civil War,….. KKK insurrections during Reconstruction, a guerilla war in the Philippines, and in Hawaii during World War II…. These examples show that the Writ of Habeas Corpus has only ever been suspended in the face of imminent and overwhelming violent direct threats to the stability of the state or federal government….

Unauthorized immigration is not akin to armed and organized insurrection against the government. Even as Texas points to cartel violence, it cannot maintain in good faith that the cartels will imminently overthrow the state government. Nor can the mere presence of ongoing organized crime, which has long existed in the United States, suffice to justify the suspension of habeas corpus. Despite the serious threat to public safety that cartels may pose, it is difficult to accept that the threat is so severe as to justify the wholesale suspension of Due Process rights in Texas.

Indeed, British suspension of the writ of habeas corpus was a leading concern among American Revolutionaries and carefully limited by the Framers in the Constitution…. For that reason, the Framers drafted the Constitution such that the writ could be suspended only in times of great emergency….

It is not plausible that the Framers, so cognizant of past abuses of the writ and so careful to protect against future abuses, would have granted states the unquestioned authority to suspend the writ based on the presence of undocumented immigrants.

I have previously highlighted this issue myself: If immigration or drug smuggling by cartels qualify as "invasion," the writ of habeas corpus could be suspended at virtually any time, since such activity is virtually always ongoing (at least since the establishment of severe migration restrictions and the War on Drugs).

Judge Ezra also argues that, if illegal migration did qualify as "invasion" states' efforts to "engage in war" in response would still be subject to federal restrictions, under Congress's own war powers, once federal forces are able to reach the scene of the attack. I am less certain of the correctness of this claim than I am about his the arguments. If a state is indeed "actually invaded," it seems to me it would have at least some substantial authority to "engage in war" that the federal government cannot override, even if federal  troops are also helping to repel the invasion.

There is more to Judge Ezra's analysis of the invasion issue. Anyone interested in this important constitutional question should read the entire section of his careful opinion devoted to this question (pp. 65-98).  It's a true tour de force. For those who care, Judge Ezra is a Republican Reagan appointee.

Texas Gov. Greg Abbott has indicated that he plans to appeal the decision. And the invasion question may also soon be considered by the en banc Fifth Circuit. We probably haven't heard the last of this issue. But hopefully appellate courts will reach the same conclusion as Judge Ezra.

Today's ruling also includes analysis of other issues in the SB 4 case, especially arguments about whether the law is preempted by federal immigration statutes (Judge Ezra concludes it is).

I have previously written about why illegal migration doesn't qualify as "invasion" here, here, here, and here.

The post Federal Court Rejects Texas's Argument that Illegal Migration Qualifies as "Invasion" appeared first on Reason.com.

Next week, the Supreme Court will hear oral argument in NetChoice v. Paxton and Moody v. NetChoice. The cases are about a pair of laws, enacted by Texas and Florida, that attempt to force large social media platforms such as YouTube, Instagram, and X to host large amounts of speech against their will. (Think neo-Nazi rants, anti-vax conspiracies, and depictions of self-harm.) The states’ effort to co-opt social media companies’ editorial policies blatantly violates the First Amendment.

Since the laws are constitutional trainwrecks, it’s no surprise that Texas’s and Florida’s legal theories are weak. They rely heavily on the notion that what social media companies do is not really editing — and thus is not expressive. Editors, Texas says in a brief, are “reputationally responsible” for the content they reproduce. And yet, the state continues, “no reasonable observer associates” social media companies with the speech they disseminate.

This claim is absurd on its face. Everyone holds social media companies “reputationally responsible” for their content moderation. Users do, because most of them don’t like using a product full of hate speech and harassment. Advertisers do, out of a concern for their “brand safety.” Journalists do. Civil rights groups do. Even the Republican politicians who enacted this pair of bad laws do — that’s why they yell about how “Big Tech oligarchs” engage in so-called censorship.

That the Texas and Florida GOP are openly contemptuous of the First Amendment, and incompetent to boot, isn’t exactly news. So let’s turn instead to some delicious ironies. 

Consider that the right’s favorite social media addict, robber baron, and troll Elon Musk has single-handedly destroyed Texas’s and Florida’s case.

After the two states’ laws were enacted, Elon Musk conducted something of a natural experiment in content moderation—one that has wrecked those laws’ underlying premise. Musk purchased Twitter, transformed it into X, and greatly reduced content moderation on the service. As tech reporter Alex Kantrowitz remarks, the new approach “privileges” extreme content from “edgelords.”

This, in turn, forces users to work harder to find quality content, and to tolerate being exposed to noxious content. But users don’t have to put up with this — and they haven’t. “Since Musk bought Twitter in October 2022,” Kantrowitz finds, “it’s lost approximately 13 percent of its app’s daily active users.” Clearly, users “associate” social-media companies with the speech they host!

It gets better. Last November, Media Matters announced that, searching X, it had found several iconic brands’ advertisements displayed next to neo-Nazi posts. Did Musk say, “Whatever, dudes, racist content being placed next to advertisements on our site doesn’t affect X’s reputation”? No. He had X sue Media Matters.

In its complaint, X asserts that it “invests heavily” in efforts to keep “fringe content” away from advertisers’ posts. The company also alleges that Media Matters gave the world a “false impression” about what content tends to get “pair[ed]” on the platform. These statements make sense only if people care — and X cares that people care — about how X arranges content on X.

X even states that Media Matters has tried to “tarnish X’s reputation by associating [X] with racist content.” It would be hard to admit more explicitly that social-media companies are “reputationally responsible” for, because they are “associated” with, the content they disseminate.

Consider also that Texas ran to Musk’s defense. Oblivious to how Musk’s vendetta hurts Texas’s case at the Supreme Court, Ken Paxton, the state’s attorney general, opened a fraud investigation against Media Matters (the basic truth of whose report Musk’s lawsuit does not dispute).

Consider finally how Texas’s last-ditch defense gets mowed down by the right’s favorite Supreme Court justice. According to Texas, social-media companies can scrub the reputational harm from spreading abhorrent content simply by “disavowing” that content. But none other than Justice Clarence Thomas has blown this argument apart. If, Thomas writes, a state could force speech on an entity merely by letting that entity “disassociate” from the speech with a “disclaimer,” that “would justify any law compelling speech.”

Only the government can “censor” speech. Texas and Florida are the true censors here, as they seek to restrict the expressive editorial judgment of social-media companies. That conduct is expressive. Just ask Elon Musk. And that expressiveness is fatal to Texas’s and Florida’s laws. Just ask Clarence Thomas. Texas’s and Florida’s social-media speech codes aren’t just unconstitutional, they can’t even be defended coherently.

Corbin Barthold is internet policy counsel at TechFreedom.

In recent months, many politicians and media outlets have focused on the "migrant crisis" in various cities, supposedly caused by the arrival of large numbers of asylum seekers. Many of these migrants cannot support themselves, and end up taking up shelter space or living on the streets. In a recent Atlantic article (unfortunately, paywalled), Jerusalem Demsas explains why the supposed crisis is in reality a product of flawed government policies, rather than migration, as such:

When the mayor of New York, of all places, warned that a recent influx of asylum seekers would destroy his city, something didn't add up.

"I said it last year when we had 15,000, and I'm telling you now at 110,000. The city we knew, we're about to lose," Eric Adams urged in September. By the end of the year, more than 150,000 migrants had arrived. Still, the mayor's apocalyptic prediction didn't square with New York's past experience. How could a city with more than 8 million residents, more than 3 million of whom are foreign-born, find itself overwhelmed by a much smaller number of newcomers?

In another legendary haven for immigrants, similar dynamics were playing out. Chicago has more than 500,000 foreign-born residents, about 20 percent of its population, but it has been straining to handle the arrival of just 35,000 asylum seekers in the past year and a half. Some people have even ended up on the floors of police stations or in public parks. Mayor Brandon Johnson joined Adams and a handful of other big-city mayors in signing a letter seeking help with the "large numbers of additional asylum seekers being brought to our cities."

Sometimes the best way to understand why something is going wrong is to look at what's going right. The asylum seekers from the border aren't the only outsiders in town. Russia's 2022 invasion of Ukraine brought a separate influx of displaced people into U.S. cities that quietly assimilated most of them. "We have at least 30,000 Ukrainian refugees in the city of Chicago, and no one has even noticed," Johnson told me in a recent interview.

According to New York officials, of about 30,000 Ukrainians who resettled there, very few ended up in shelters. By contrast, the city has scrambled to open nearly 200 emergency shelters to house asylees from the Southwest border.

What ensured the quiet assimilation of displaced Ukrainians? Why has the arrival of asylum seekers from Latin America been so different? And why have some cities managed to weather the so-called crisis without any outcry or political backlash? In interviews with mayors, other municipal officials, nonprofit leaders, and immigration lawyers in several states, I pieced together an answer stemming from two major differences in federal policy. First, the Biden administration admitted the Ukrainians under terms that allowed them to work right away. Second, the feds had a plan for where to place these newcomers. It included coordination with local governments, individual sponsors, and civil-society groups. The Biden administration did not leave Ukrainian newcomers vulnerable to the whims of Texas Governor Greg Abbott, who since April 2022 has transported 37,800 migrants to New York City, 31,400 to Chicago, and thousands more to other blue cities—in a successful bid to push the immigration debate rightward and advance the idea that immigrants are a burden on native-born people.

Demsas is largely right here. Ukrainians admitted under the Uniting for Ukraine (U4U)  program have not caused any controversy in cities largely because they are allowed to immediately start working, and thereby can support themselves and contribute to our economy. By contrast, asylum seekers aren't eligible to apply for work permits for six months, and even then it often takes the federal immigration bureaucracy a long time to actually issue them.

What is true for Ukrainians is also true of Cubans, Nicaraguans, Venezuelans, and Haitians admitted under the "CNVH" program—an extension of the U4U model to a combine total 30,000 migrants per month fleeing oppression and violence in those four countries. Several hundred thousand people have entered the US under the CNVH program. But, like the Ukrainians, they have immediate work authorization, and therefore turn out to be a asset to cities, not a burden.

As Demsas explains, the federal government should abolish the six-month rule and let asylum-seekers work legally from day one. The Biden Administration has taken this step for many Venezuelans already in the US. But it needs to expand work authorization to other asylum seekers.

I do think Demsas gets one point wrong here. For the most part, it is not true that "the feds had a plan for where to place" U4U participants.  The program requires each migrant to have a US sponsor. But, beyond that, the federal government makes little or no effort to control where and how they live.

I myself am a sponsor in the U4U program, and have advised other sponsors and migrants.  Generally speaking, the migrants decide for themselves where they are going to settle in the US. Sponsors advise, but do not dictate. I now have eight Ukrainian sponsorees. To my knowledge, never once has a federal official attempted to plan where they live and work, or even offered advice on that subject.

Instead of planning and controlling, U4U mostly lets the market and civil society work. That, I think, is the real key to its success. While I don't myself have CNVH sponsorees, I know people who do; that program seems much the same.

Demsas also notes that, even when it comes to asylum seekers, the  dfficulties encountered in New York and Chicago have largely been avoided in cities like Houston and Miami, even though the latter also have experienced recent influxes. What's the difference between these cases? I don't know for sure. But a major factor is likely that the cities with serious problems also tend to have highly restrictive zoning rules, which make it difficult or impossible to build housing in response to demand. I have previously noted this issue in the case of New York.

By contrast, Houston is famous for not having zoning at all (thereby making housing construction easy, and housing itself very affordable). And Miami is at least less restrictive than cities like New York and Chicago.

In New York, housing issues have been exacerbated by the city's ill-advised free shelter guarantee, which incentivizes both migrants and poor natives to seek out free housing at public expense. New York would be well-advised to end the guarantee, while simultaneously ending exclusionary zoning rules that block new housing construction.

It is also true, as Demsas notes, that Texas Gov. Greg Abbott's migrant busing program—which has heavily targeted New York and Chicago—has caused disruption in those cities:

When immigrants make their way to a city in an organic fashion, they usually are drawn to a place where they have family ties, job leads, or other connections and resources available….

That's very different from the haphazard Texas busing program. When Abbott's buses arrive at their destinations, many of them are filled with people who had specific plans to go somewhere else. Cities then re-ticket many of the passengers. The mayor of Denver told me that roughly 40 percent of asylees who are bused into his city have no intention of staying there.

Abbott should stop the busing program, and instead let migrants choose their own destinations and pay their own way. In addition to increasing the migrants' economic productivity (thereby boosting the US economy) and reducing disruption in New York and Chicago, it would also save Texas taxpayers money. The state has spent some $148 million busing migrants to other parts of the country.

In sum, the "migrant crisis" is largely caused by a combination of perverse federal, state, and local policies that bar asylum seekers from working legally, artificially restrict housing construction, and bus migrants to places other than where they actually want to go. Migrants who enter by programs that avoid these obstacles don't cause any crises. Indeed, they are actually assets to the economy. If governments want to end the "crisis," for the most part they need only get out of the way.

The post The "Migrant Crisis" is Caused by Flawed Work and Housing Policies, not Migrants appeared first on Reason.com.

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 York Times, 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.

The post The Biden Administration Is Bent on Setting an Alarming Precedent by Prosecuting Julian Assange appeared first on Reason.com.