In all of our discussions about how the digital revolution has created a system in which people don’t actually own the things they think they’re buying, I get particularly frustrated by the lack of change in it all. We’ve spilled much ink complaining that this clearly anti-consumer practice needs to be done away with, where an unsuspecting public thinks they’re buying “a thing” only to learn months or years later that “the thing” they bought was actually a license to use/view/listen to another “thing”, and that license exists at the pleasure of the company that collected the money for it. And if you want to see the lack of change or action really honed in upon, let’s take a look at Sony’s PlayStation Store.
In 2022, due to “evolving licensing agreements” with distributor StudioCanal, German and Austrian users had hundreds of movies disappear from their PS accounts, long after buying them through Sony. Then in 2023, it happened again in America, specifically when Sony ended its licensing agreement with Discovery after the Warner Bros. merger, which, of course, has since been bought by Paramount Skydance. That resulted in customers having hundreds and hundreds of episodes of TV shows deleted from their accounts. Nowhere in any of this were there refunds, of course. No recompense at all, actually. Just a thing you thought you’d bought taken away from you by the very people you thought you bought it from.
And now it’s happening again. Due to another licensing agreement fallout with StudioCanal, hundreds of movies and TV shows are being ripped from the accounts of PS Store customers, and there appears to be fuck all that they can do about it.
This news was brought to people’s attention by X user somatyk, who posted the notification they had received from PlayStation this week. Along with the unapologetic news that the purchased movies would be deleted from their account on September 1, the message concluded with, “Click here for a full list of affected titles that will no longer be supported. Thank you.” The same warning is now reproduced in full on the PlayStation website, along with the list of 551 films and TV series that are being pulled from people’s libraries.
As Kotaku notes later in their post, part of what is striking in all of this is the sheer mundanity of the announcement. Because there have been no consequences, or any action at all from the public or government, Sony treats this all as if it’s perfectly normal and no big deal. You can tell me all you want about how the Ts and Cs in these purchases do in fact note that the nature of the purchase is a temporary licensing of the content for an undetermined time period… but I can promise you that the public in general doesn’t understand that. They think they’re buying a thing, not a license.
And that’s because of the purposeful obfuscation of that fact. Sony damned well knows that the vast majority of people don’t read those Ts and Cs. It knows that the public largely doesn’t understand how these backend licensing agreements with distributors work, or that they even exist. And Sony isn’t exactly putting out a big blinking sign on its store pages informing the public of all of this. Instead, the company is only too happy to collect money from a public that is being purposefully kept ignorant of what they’re buying.
Of course, when you scroll past the endless EULAs when you first use your PlayStation, and click “Agree” the first time you load the store, you’re unwittingly agreeing that nothing you buy is really truly bought, and that it can be taken away from you at any point, and there’s nothing you can do. The same is true of your games.
This, too, will probably pass without any real action. The government has done its best to gut our consumer protection agencies, so they won’t be any help. Angry customers won’t coalesce into activism or action, most likely. And I’ll probably be writing another one of these posts in a couple of years when it all happens again.
But it shouldn’t be that way. There are common sense things that can be done to better inform the public. Rules for how the store should inform people with each and every purchase. Someone just needs to demand it be done.
In its term that ended last October, the Supreme Court passed an important milestone that went unnoticed: For the first time, it decided more cases by secret ballot, and with few signed opinions, than it did for cases argued in open court.
These decisions, which make up the court’s “shadow docket,” are a fast-track way to get a decision from the top court. They rarely include arguments, have limited briefings and have expedited timetables, and justices infrequently provide explanation of how they voted or to cite legal precedent.
The Supreme Court’s increased willingness to bypass its regular process has empowered President Donald Trump at the same time as the administration has increased use of executive authority. The court has repeatedly green-lit policies of his that lower courts have blocked — and has done so with little to no explanation.
These emergency decisions have thrown lower courts’ processes into turmoil and have sometimes directly contradicted longstanding legal precedent. The outcomes have been consequential: The high court has used the process to limit federal courts from issuing nationwide injunctions and diminished Congress’ authority over federal agencies, and it has allowed for the detention of American citizens by immigration agents.
ProPublica analyzed over two decades of Supreme Court rulings, which cover all of the years under Chief Justice John Roberts and go as far back as the online archives allow. We found that when the last court term ended, justices had issued 63 orders on the shadow docket, as opposed to 56 orders on the more traditional merits docket — where the court hears oral arguments scheduled months in advance and the justices issue signed opinions.
Legal scholars and court watchers were shocked by our finding. They told ProPublica it’s likely the first time in modern history that so many consequential decisions were made in secret by its nine members.
“The patterns show a court going out of its way to enable Trump,” said Stephen Vladeck, a law professor at Georgetown University and a Supreme Court analyst. He said that our findings reinforce the appearance that the justices are voting on their political preferences.
“That’s the real blow to the court’s credibility,” he said.
Representatives from the Supreme Court did not respond to a detailed list of questions.
In a statement, a spokesperson for the White House wrote, “President Trump has faced a historically unprecedented number of injunctions by liberal lower court judges, the same judges who would rather push their own policy schemes and undermine the Administration’s lawful agenda. President Trump will not stop implementing the America First initiatives on which he was elected.”
For the First Time in Two Decades, Decisions on the Supreme Court’s Shadow Docket Outnumber the Merits Docket
Note: Supreme Court terms run from October to October. Ken Morales/ProPublica
There are two ways to get a decision from the Supreme Court. One is to exhaust your appeals to lower courts and ask to argue your case in front of the high court. The justices determine whether to take the case on, and if they do, lawyers argue their case in front of them. The other is to petition the justices directly via the emergency docket — to freeze a lower court ruling or government policy while the case goes through appeal.
The appeals to the emergency docket have long outnumbered those to the merits docket, but most are procedural requests or requests to stay execution for capital offenses. When those are removed, what’s left is known as the shadow docket — cases that seek to skip the usual order of things and ask for a quick ruling from the court’s justices.
The modern shadow docket was born in 2016 when the Supreme Court issued an emergency stay against President Barack Obama’s Clean Power Plan, experts say. Papers obtained by The New York Times show that liberal justices at the time urged Roberts not to decide the case on an emergency basis because it broke with longtime precedent. The conservative justices, meanwhile, forcefully argued that the president’s plan would eventually be overturned by the court anyway and that it would put too much of a burden on the energy industry.
Driven by its numerous losses in lower courts, the current Trump administration appeals to the emergency docket significantly more often than previous administrations, and the court has increasingly agreed to take quick action on its appeals.
The Obama and George W. Bush administrations together filed just eight petitions in 16 years. The Trump administration filed 32 in 2025 alone, an analysis by the Brennan Center for Justice found.
The increased willingness of the Roberts court to intervene on Trump’s behalf — as well as in other issues that favor conservatives and Trump allies — has upended American life, said Donald Ayer, a former deputy solicitor general and deputy attorney general who served under the Reagan and George H.W. Bush administrations.
“On many subjects of real importance to our future, they’ve demolished what used to be the law,” he said.
Public scrutiny of the shadow docket ramped up in September 2021 after the Supreme Court used it to issue a one-paragraph, unsigned opinion that further rolled back abortion rights established in the 1973 Roe v. Wade ruling. In the order, the court refused to block Texas’ Senate Bill 8, the “Heartbeat Act,” which banned abortion after an embryo’s cardiac activity is detectable, typically at six weeks of pregnancy and before many people know they are pregnant. Protests erupted nationwide, and the Senate held a hearing on the shadow docket.
In an unusual public acknowledgement, Justice Elena Kagan referenced the shadow docket by name in her scathing dissent, accusing the majority of green-lighting a “patently unconstitutional law” with only a cursory review in less than 72 hours.
“In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend,” Kagan wrote.
That an opinion was even issued and that four of the justices signed their names to it was uncommon. On the shadow docket, justices do not have to make their votes known. In rare cases, their votes are revealed in terse indications that they grant or deny the application, or even more rarely, as an opinion. We found that just 17% of votes cast had any sort of public record of a vote or opinion.
Responding to public criticism, Justice Samuel Alito contended that the court isn’t to blame for the rise in shadow docket cases. “We do not file these emergency applications,” he said. “Parties file them.”
The debate has continued. “We cannot expect the public to have faith in our judicial system if, without clear explanation, we consistently green-light harmful acts that do real damage,” Justice Ketanji Brown Jackson said during an April speech on the shadow docket at Yale Law School.
Until this past Supreme Court term, emergency applications fluctuated year to year but showed no clear upward trend. The applications are given first to a single justice, who decides if a case is worth referring to the full court. In recent years, justices have referred more of such appeals for a review and vote by the full court.
Last term, when there were both more cases and more referrals to the full court, the appeals to the shadow docket finally overtook those to the merits docket.
Emergency Applications Referred for a Full Court Vote Have Risen Sharply
The cases were consequential. On June 23, 2025, after a lower court had ruled that eight men being deported to South Sudan should have due process, the Supreme Court intervened after a request from the administration to stop that order. The men were deported. The majority didn’t issue an opinion justifying its ruling.
Three months later, the Supreme Court voted to allow immigration agents to stop people based on racial or ethnic characteristics while still-ongoing litigation against it proceeded. To justify the decision, Justice Brett Kavanaugh wrote a rare shadow docket opinion that people who were in the country legally would be “free to go after the brief encounter.” These became known as “Kavanaugh stops.” Last year, ProPublica found more than 170 citizens who had been stopped and detained by ICE agents. The more than 50 Americans held even after agents learned of their citizenship were almost all Latino.
And in May, while an election in Louisiana was already underway, the justices allowed the state to immediately redraw its electoral map, removing one of the two majority-Black voting districts. Louisiana can now use that map for the 2026 midterms as part of a nationwide redistricting battle for control of the House of Representatives — an effort touched off by Trump’s call for Republican-led states to create more safe seats for themselves.
Roberts once signed on to a Kagan dissent that assailed the shadow docket. But our analysis found that he has referred more substantive cases for a vote by the full court than any other justice, going from just one in the 2005 term when he joined the court to nearly half of all referrals in the last term.
There is an additional difference between the shadow docket and the merits docket. After the court holds public argument, the justices’ ultimate merits decisions are closely watched and extensively covered by the press. The summer’s “decision season,” when the final and most significant rulings come down, has a predictable cadence that ends when the justices go on summer recess. Not so with the shadow docket. Increasingly, the justices are making big decisions after they’ve issued their final merits docket decision, when public attention has waned.
A group of Democrats led by Rep. Jamie Raskin, D-Md., have sponsored legislation to make the shadow docket more transparent.
Raskin told ProPublica that the court’s legitimacy has fallen with every significant decision made without “real opinions or analysis.”
“Lower federal courts have been deciding against the Trump administration in an overwhelming majority of cases with weighty and well-reasoned opinions,” Raskin said in a written statement. “Yet when things get to the twilight zone of the shadow docket, the Supreme Court is overturning 100-page opinions with a flippant sentence or two.” He added, “The result is a body that looks less like a Supreme Court and more like a Royal Court rubber stamping the madness and folly of the Trump Administration.”
“The jurisprudence of the Roberts Court today is as murky as the green algae water in the Reflecting Pool.”
How We Reported This Story
To compare the number of cases on the Supreme Court’s shadow docket to the traditional merits docket, we compared emergency applications listed on the court’s online docket searchwith counts of decisions compiled in Penn State’s Supreme Court Database (Version 2025 Release 01). For the merits docket, we counted only signed decisions in argued cases, the typical format for those rulings.
The court’s online docket goes back to the year 2000, but our analysis looks at Supreme Court terms from October 2003 to October 2025, where emergency applications are easily identified by the letter “A” in their docket number.
We identified more than 27,000 emergency applications during that period, including thousands of requests that are not commonly understood to be a part of the shadow docket. Most appeals to the emergency docket are the type of requests that were traditionally handled there: procedural requests, such as extending the time to file, and requests to stay execution for capital offenses. The remainder are the focus of our reporting.
Substantive Shadow Docket Cases Are a Small Fraction of All Emergency Applications
We defined a substantive application on the shadow docket as any filing where the full court was asked to intervene in the traditional appeals process, such as staying a lower court’s order.
Most of the cases we excluded are decided by just one justice, each of whom oversees one or more federal circuits and has the power to refer filings to the wider court. When the cases are referred to the full court, they are the subject of a vote by the justices. We ran our approach by multiple experts, all of whom found it sound.
A filer can appeal to another justice if their application is denied. The next justice to receive the application always refers it to the full court. We did not include these renewed applications because our analysis found the court has never granted one.
The court has labeled capital punishment cases only since the October 2017 term. To identify them prior to that, we flagged applications for stays of execution. We then manually reviewed every case referred to the full court. For applications decided by a single justice, we used an AI model to flag potential capital cases by examining the parties on the application and the relief requested. The model flagged over 60 possible capital cases, and those were manually reviewed. Despite our effort, it is possible some capital cases may still be included in our final tallies before the 2017 term.
Although rulings on the shadow docket are typically unsigned and do not include vote breakdowns, we were able to identify how a justice voted in some cases. The analysis is based on either the opinions issued by the justices, most of which are dissenting opinions, or if the justice indicated they would have granted or denied. In some decisions, the justices issued a statement not attached to either a grant or denial. We did not record these as votes.
Well, it was fun while it lasted. And even while it still (theoretically) lasts, it’s really nothing more than the Fifth Circuit saying rights can violated, but only for 90 days at a time.
Earlier this month, the Fifth Circuit managed to deliver a very un-Fifth Circuit decision, finding in favor of rights and against the Trump administration’s war on migrants. As almost every court has recognized for decades, people residing in the United States — even illegally — have constitutional rights. The Fifth Circuit has long been one of the exceptions to this rule.
The administration chose to ignore this because doing would slow its horrific roll towards an eventual evacuation of everyone who wasn’t white enough for this administration to recognize as Americans. To justify ignoring long-held constitutional rights, the administration first invoked the Alien Enemies Act (best known for our atrocities against Japanese migrants and residents during World War II). Then it pretended that anyone who had been in the country for weeks, years, or decades should be treated the same as anyone apprehended while illegally crossing the border.
The Fifth Circuit couldn’t bring itself to rule that migrants arrested long after they’ve crossed the border have access to their due process rights on day one of their apprehension. Instead, it decided (without really explaining why) these rights don’t actually kick in until someone has been in custody for more than 90 days.
That meant nothing would really change. People arrested by ICE and other DHS components all over the nation would be hastily relocated to the Fifth Circuit (Texas, Louisiana, Mississippi) ASAP to prevent them from challenging their detention for 90 days. Presumably, the administration hoped to have most of these detainees deported long before they were allowed to invoke their constitutional rights.
Apparently, 90 days of denying rights isn’t long enough. It looks as though enough judges in the Fifth Circuit think these rights should never be available to migrants. Less than a month after handing down its decision, the Fifth Circuit has declared it will be taking another pass at this.
A majority of the circuit judges in regular active service and not disqualified having voted in favor, on the Court’s own motion, to rehear this case en banc,
IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs. Pursuant to 5th Circuit Rule 41.3, the panel opinion in this case dated July 02, 2026, is VACATED.
So, we’re now back to the Fifth Circuit status quo. The government can ignore constitutional rights on day one and continue ignoring them until they’ve ejected migrants into whatever war-torn human rights hellhole will have them.
Sure, there’s a very slim (I’d say “nonexistent”) chance the petitioners for rehearing think the Fifth Circuit screwed up by giving the administration a 90-day head start on ignoring constitutional rights. But come on. We’re talking about the Fifth Circuit here.
The most likely reason for this rehearing action is that a lot of Fifth Circuit judges think the Trump administration shouldn’t have to recognize the rights of migrants ever, which is why they want to take another stab at setting precedent that would cover some of the DHS’s largest detention facilities.
The best case scenario would appear to be the circuit upholding its previous ruling, with its (unconstitutional) 90-day 14th Amendment snooze button. The worst case scenario is the entire panel agrees with this hideous, racist administration and says anyone in the country without documentation should be treated like someone caught in the act of crossing the border illegally. I’m not holding my breath for a positive outcome. I need that breath for stuff that’s actually feasible and foreseeable.
Last year, the Marco Rubio-run State Department announced that it would start denying visas to people who worked in misinformation/disinformation research, content moderation, fact-checking, or other compliance and trust & safety roles. So, yeah, if you were an EU-based person who worked on preventing child sexual abuse material from appearing online, the US government decided you were not allowed in the country, bizarrely (and falsely) claiming you engaged in “censorship of protected expression.”
Except, as we’ve explained over and over again, that makes no sense. Only government officials or those working directly at the behest of the government can engage in censorship of protected expression. Otherwise it’s just private parties using their own rights of association to figure out what content they wish to associate with. And the actual reality (which MAGA culture warriors refuse to recognize) is that nearly all trust & safety work has fuck all to do with removing content. Much of it is literally about making platforms better and more trusted overall.
But, because the MAGA crew has been whipped up into a misinformation frenzy over the last decade that any research regarding mis- or disinformation is “censorship,” Trump and Rubio decided to throw the base some red meat and claim they were going to deny visas to people who worked in the field.
Thankfully, a federal court has pointed out that the only one engaging in censorship here is the Rubio State Department. By designating a group of people to be denied visas based on their own speech and association regarding disinformation research, the State Department engaged in unconstitutional viewpoint discrimination.
Judge Boasberg (who traditionally has been pretty conservative, but with Trump nonsense appearing before him quite frequently seems to now recognize that this administration is full of shit) notes how silly all of this is. After highlighting that most users of websites actually do want those sites to block scams and spam (what most content moderation is), though admitting that some people think of it as censorship, he points out that Rubio’s policy punishes researchers (the plaintiffs in this case) for trying to research and fact check disinformation.
The First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). That commitment is not confined to stump speeches, editorials, or familiar forms of political advocacy….
Those principles cover the activity chilled here. CITR’s work depends on researchers who study how platforms structure public debate, report on misinformation and disinformation, advocate for access to platform data, petition officials, speak to the press, and collaborate with one another to set standards and press for reform. Some of that work culminates in reports, interviews, comments, petitions, and testimony. Some of it occurs before publication, in the candid exchange among researchers and organizations that makes public-facing work possible. Those activities, at least as reflected in this record, fall within the Amendment’s protection for speech, publication, petitioning, and expressive association. They also sit directly within the contested public debate over how online platforms structure discourse and whether, when, and how they should moderate harmful or false content….
CITR’s asserted injury is therefore not merely derivative of what its noncitizen members might say or what CITR might hear. The policy allegedly impairs CITR’s own work: who will contribute to its reports, what those reports can say, who will attach their names to them, and whether researchers will participate in the convenings and candid exchanges from which CITR’s public work emerges. See supra Section III.A.2.a. That is itself a First Amendment burden, as the Amendment protects both an organization’s creation and dissemination of information, Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011), and the associational activity that makes collective speech possible….
The judge points out that the visa policy is already having an impact on this kind of research:
The reaction here was not merely predictable; it was all but ordered. Announcing the enforcement actions against leaders of two CITR member organizations, Rubio warned others engaged in the same work to “reverse course” or face the same. … The record shows that the message landed. Member A has refrained from international travel, including to CITR’s 2025 summit in Berlin, because of fear of being denied reentry under the policy; has limited public advocacy with CITR to a behind-the-scenes role because of fear of detention and deportation; and says that he or she would be substantially more likely to resume public association with CITR were the policy no longer in place…. Dr. Emma L. Briant, a U.K. citizen and Visiting Associate Professor at Notre Dame, likewise avers that the policy has caused her to self-censor in her writing and public speaking, hesitate to travel internationally, and evaluate even domestic speaking invitations against the risk of detention or deportation.
The judge calls out how the State Department started combing through visa applications to block “ordinary work” done by researchers and fact checkers, not limited to anyone actually engaged in any “censorship.”
The December cable supplies part of the answer. It directed consular officers to “thoroughly explore” visa applicants’ work histories, resumes, social-media profiles, and media appearances for involvement in “combatting misinformation, disinformation or false narratives, fact-checking, content moderation, compliance, and trust and safety,” and, on locating it, to pursue a finding of ineligibility…. Those categories do not describe the exercise of foreign sovereign power. They describe the ordinary work of researchers, fact checkers, platform employees, compliance officers, and nonprofit advocates who study, criticize, participate in, or press for content moderation. A cable that treats that work as evidence of immigration ineligibility reaches far beyond the coercive acts described in the May Memo: threats of arrest, payment freezes, legal compulsion, detention, fines, and demands for private data directed at American platforms or persons in the United States.
While the Court declines to review specific visa denials, it notes that the State Department clearly seems to be denying visas to people by claiming “censorship” when they had nothing to do with censorship. Indeed, the denials usually were about the State Department punishing people for First Amendment protected speech that the US government didn’t like. None of the justifications appear to actually be censorial:
The actions matter because State held them out as examples of the policy at work. Its public rationales identify the activity it treats as “complicity” in “censorship”: a report on hate speech and disinformation, advocacy directed at advertisers and platforms, disinformation-risk ratings, a petition for researcher access to platform data, a broadcast interview, and nonprofit leadership in organizations that help targets of online abuse seek removal of content aimed at them… Some of those justifications are tied to familiar First Amendment activity: reporting, speaking, petitioning, advocating for platform regulation, and associating through nonprofit leadership. Id. At least as to the private researchers and nonprofit leaders in CITR’s field, the public explanations do not identify any exercise of foreign sovereign power akin to the coercive acts the May Memo enumerates.
As Judge Boasberg notes, if you call all of that “complicity in censorship” then the term “censorship” has no real meaning:
If disinformation-risk ratings, reports on hate speech, petitions for platform-data access, advocacy, or nonprofit work seeking to limit abusive content can count as “complicity” in “censorship,” the policy has no clear stopping point short of the field itself — a concern sharpened by the Department’s announcement that it “stands ready and willing to expand” the list…. A lawful permanent resident working on a platform’s trust-and-safety team, a noncitizen researcher urging stronger disinformation labels, a compliance employee helping apply moderation rules, or an advocacy leader pressing advertisers away from sites that spread falsehoods could reasonably understand the policy to place their immigration status at risk — not because they wield foreign sovereign power or facilitate its censorship, but simply because they work in content moderation.
In its response, the DOJ pulled the usual MAGA nonsense of stomping its feet and just repeating “but content moderation is censorship” and making vague assertions about how these researchers aid foreign governments in censorship. The judge is not impressed.
The trouble is that the enforcement record does not honor that line. The Government has tied none of the private researchers and nonprofit leaders targeted in December to any exercise of foreign sovereign power. Pressed on that gap, counsel did not supply the missing connection. The Government stepped back from the five examples, explaining that it lacked “the full factual records or the reasons for those determinations” and that it would not be “fair to rely on those five” in gauging the policy’s scope…. But Defendants cannot publicly announce examples of the policy at work, warn that the Department stands ready to expand them, and then — when those examples prove inconvenient — deny that they reveal anything about the policy’s reach. A limiting principle that the Government cannot reconcile with its own enforcement record is no limit at all.
And thus, all this is classic, unconstitutional, viewpoint discrimination:
The policy, at its core, does not burden all speech about platforms, all research into content moderation, or all advocacy about online harms. It presses its enforcement thumb against one side of the scale: the view that platforms should do more to moderate content, label disinformation, restrict abuse, share data with researchers, or take responsibility for the harms their systems amplify. The Government, in other words, has not set itself against everyone who speaks about platform governance. It has set itself against those whose work favors more moderation rather than less. A noncitizen calling for less moderation, after all, has no comparable reason for concern under the policy.
Such action lies at the core of viewpoint discrimination. “At its most basic, the test for viewpoint discrimination is whether — within the relevant subject category — the government has singled out a subset of messages for disfavor based on the views expressed.” ….
The First Amendment does not permit officials to resolve that dispute by attaching legal burdens to the side they condemn
But that’s exactly what Rubio did here. If you worked on calling out disinformation, you could get your visa denied (or if you already had it, pulled). Judge Boasberg notes that if the policy were actually limited to foreign officials engaged in censorship, then the State Department might have an argument. But it’s not.
Even better, the court states that you can’t just call disinformation research “censorship” and pretend that’s a fact when reality says otherwise:
Protecting Americans from foreign officials who use sovereign power to suppress protected expression in the United States is in the Government’s interest. But the record does not show that the policy serves only that end. It instead brands a range of private expressive and platform-governance activity as “censorship,” without identifying any foreign-sovereign power that those actors exercised or helped exercise. The Government cannot make protected private expression a facially legitimate and bona fide basis for immigration consequences simply by placing it under the capacious and contested label of “censorship.”
He even notes that policy would violate the First Amendment under lower levels of scrutiny, meaning that even if the government could convince the court there was some justification for the policy, it still wouldn’t survive First Amendment scrutiny.
The judge doesn’t kill the policy entirely, noting that there may be cases where the State Department has a legitimate reason to deny a visa to someone actually engaged in efforts to silence Americans. It also hurts that when the Court sought evidence of visas being denied to actual censorship by sovereign officials, the State Department apparently came up empty:
The Department reportedly examined whether European regulators were using the Digital Services Act to censor American speech and found “no evidence that Member States of the European Union are overreaching the [Digital Services Act] to censor and criminalize online content.”
Oops! Sure, that goes against the narrative Rubio and MAGA folks have spun up about the EU being nothing but a bunch of censors, but when they can’t show the court any proof that they’re using this policy to go after actual government censors (while the plaintiffs can show where the policy was used to suppress or punish the speech of non-government censors) the end results are unlikely to make Rubio happy.
Measured against one another, the policy’s legitimate applications ultimately do not carry the day. The mismatch between Defendants’ asserted interest and the policy’s demonstrated operation is stark…. The defect identified above is not a feature of any one application; it is the policy’s selection criteria itself, and it travels wherever the policy does — into visa screening, exclusion, and removal alike. The policy’s legitimate applications, by contrast, remain episodic and largely undemonstrated. Whatever arithmetic might refine the comparison, the overbreadth inquiry asks whether a measure “prohibits a substantial amount of protected speech relative to its plainly legitimate sweep,” Hansen, 599 U.S. at 770, and a policy that selects its targets by an unconstitutional criteria, while its lawful uses remain occasional and largely unproven, answers that question.
Thus, the Court throws out this particular visa policy, though it doesn’t go quite as far as the researchers asked in requesting a protective order that would bar the government from using information related to this case in an immigration enforcement action. The judge recognizes that it’s still possible that the government could retaliate against these researchers, but hopes that this ruling will make them think twice about doing so. It also notes that if the government ramps up threats or actual retaliation against the researchers in this case, they can return to the courtroom to contest those actions.
For years, the loudest voices screaming about a “Biden censorship industrial complex” falsely insisted that pointing out disinformation was itself an attack on free speech. Now a federal court has found an actual, textbook case of unconstitutional censorship — carried out by the Secretary of State explicitly stripping visas from researchers based on their protected speech. I’m sure we’ll be hearing the same kind of outrage about Biden officials asking social media companies if they could be better in stopping health misinformation from spreading?
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Donald Trump believes that being elected president means he should never be challenged, never be asked to justify his actions, and never be given less than absolute loyalty and deference. He also clearly believes the office is there to serve him, rather than there for him to serve the public. He’s going to make bank from his position of power and anyone who doesn’t like it can keep their feelings to themselves.
Kash Patel — Trump’s appointee to head the FBI — seems to feel the same way about his job. It’s not exactly the same as Trump. He might get richer due to this position, but he clearly believes it’s there to help him pursue his dreams — dreams that appear to be the equivalent of those of a B-list celebrity. He wants backstage access, bottle service, a jet-setting lifestyle, and absolute loyalty. And, like Trump, for everyone to just shut up about it.
FBI Director Kash Patel has been demanding special perks from bureau employees during his taxpayer-funded travels throughout the country, including helicopter tours and jet ski excursions, according to whistleblower accounts given to Democrats on the House and Senate Judiciary committees and obtained exclusively by MS NOW.
[…]
But the Democrats are not alone in their concerns about Patel’s use of public resources; MS NOW has also viewed a letter to Patel from Republican Senate Judiciary Chairman Chuck Grassley written in May demanding that Patel turn over information about his flights on FBI aircraft and about the FBI’s purchase of BMW vehicles, which was first reported in December by MS NOW.
“For each trip where you used an FBI aircraft for personal travel, have you reimbursed the FBI as required by law? If yes, please provide the records,” the Grassley letter says.
Of course, the FBI PR office denies any of this is true, despite all the documentation indicating otherwise. While there may actually be a cost savings (believe it or not) by switching to BMWs, the rest of this can’t be explained away as something that saves taxpayers money or makes Patel a better FBI director.
FBI spokesperson Ben Williamson claims this is all above board, saying Patel has reimbursed the government for all personal expenses. But if that’s true, it seems unlikely congressional oversight would be asking questions about it.
As for the Republicans upset about Patel’s behavior and tendency to treat the FBI director position as a lifestyle accessory, they simply can’t seem to engage in oversight without taking swipes at Democratic leadership for [re-reads reports] raising the same goddamn questions.
In a post on X after this story was published, Sen. Grassley said, “I see Dems r riding my coattails & suddenly showing interest in doing oversight of FBI aircraft. Where was that energy w Wray&other directors???” he wrote, referring to former FBI director Christopher Wray, who served under both President Trump during his first term and President Biden.
“My oversight is the same no matter the admin UNLIKE Dems who only seem interested in oversight when it benefits them politically,” he added.
lolwut?
I’m no fan of Christopher Wray, but no one ever suggested he was blowing taxpayer cash on personal trips to exotic locations. And no one ever even hinted that he might be the wrong person for the job due to an inability to remain reliably sober, much less ever caught on camera chugging booze with sports teams in their lockers after a victory.
And there certainly was nothing that sounded like this when Wray was running the FBI’s anti-encryption efforts:
The Democrats said they have been told that Patel “demoted personnel in Brussels because they failed to ensure you were adequately entertained, stoking fear among rank-and-file agents that they must provide your demanded perks or face termination. Concerns and strains prompted by the prioritization of your personal entertainment on international trips may have led to the resignation of the head of the FBI’s international operations this year.”
Not that anyone is going to get Patel to admit to any of these things. He may have to attend congressional hearings in the future, but everything we’ve seen so far from this administration strongly suggests tough questions will be met with open hostility, flat-out refusals to provide answers, and plenty of stupid assertions from the person under the congressional microscope.
That’s not to say this is a completely futile effort. It calls more attention to Patel’s antics and apparent disregard for his position and his duties. It keeps his carelessness in the public eye. Thanks to the source of the criticism, it makes it far more difficult for the FBI to pretend none of this is happening. Hopefully, there will be a reckoning. And hopefully this will happen long before Donald Trump leaves office.
In late 2024 the Biden FTC under Lina Khan passed new “click to cancel” rules that made it easier to cancel subscriptions and services, promising to punish the worst offenders. It was a direct response to decades of sleazy behavior from companies (from AOL to the Wall Street Journal) that made cancelling services an overly complicated, gargantuan pain in the ass.
But the rules are now living on in New York City, where Lina Khan has advised new Mayor Zohran Mamdani. Mamdani’s office last week announced Executive Orders 9 and 10, which not only ban all hidden junk fees, but implement a “click to cancel” rule that guarantees consumers can cancel subscriptions as easily as they sign up for them:
“For years, companies have built their business model around making it harder for working people to hold onto their money,” saidMayor Mamdani. “Whether it’s hidden fees that suddenly appear at checkout or subscriptions that take one click to sign up for and a dozen steps to cancel, the result is the same: working people pay more while corporations profit. That ends now. If you can sign up with one click, you can cancel with one click.”
While promising, enforcement will matter. States and municipalities have a proud history of announcing something like this, then failing badly to engage in enforcement. Often because taking on deep-pocketed companies is costly and time consuming, and an uphill challenge for many states or municipalities with no limit of fires to put out in the Trump era (the whole reason you need a federal government).
You’ve probably seen this sort of thing on the “right to repair” front, where states will announce bold new “right to repair” laws that protect consumers from corporate efforts to monopolize repair, only to result in nobody bothering to enforce them. Or they’ll announce bold to efforts to ban stuff like junk fees, but exempt most of the problematic industries (like Illinois just did).
Still, it’s nice to see somebody care about an issue I’ve written about for the better part of two decades. It’s worth noting that other efforts from the Biden era to protect consumers from sleazy fees — like the FCC’s attempted broadband “nutrition label” — were also quickly demolished by the Trump administration and their corporate friends.
You’re going to be seeing a lot of this sort of thing as the federal government creaks and collapses under the weight of corruption and our extremist courts. The onus of consumer protection (and labor rights, public safety, environmental issues, etc.) is now falling entirely into the laps of municipalities and states, resulting in a patchwork of more localized and inconsistently enforced rules.
Corporations and self-proclaimed anti-regulation “free market” entrepreneurs will then whine incessantly about said patchwork of inconsistent oversight, hoping you’ll ignore that their corruption, lobbying, greed, and regulatory capture disemboweled federal governance and pissed off the voters in the first place, creating the very thing they’re angry about.
For example, a bunch of right wing and libertarian rich brats found it immeasurably insufferable that a woman (Lina Khan) was engaged in things like antitrust reform, banning noncompetes, and outlawing junk fees. So they embraced corrupt fascism. The problems caused by fascism is directly fueling support for democratic socialism, which the rich brats are now whining about incessantly, oblivious that their greedy disdain for even the most modest of federal corporate accountability was the catalyst for it all.
