Call me crazy, but I tend to think when Supreme Court Justices make a big sweeping statement in one case, they should actually follow it through with other cases. You may recall, for example, that in the Dobbs case, where the right to an abortion was overturned, Justice Samuel Alito took the ‘history and tradition’ test and made it the centerpiece of modern conservative jurisprudence — using it to wipe out a 50-year-old precedent. Specifically, his reason for overturning Roe v. Wade was that he, a very weak amateur historian, could find no support for such a right in the history at the time the 14th Amendment was passed.

That very bad amateur historian shtick was on display again this week in the (otherwise good) decision in Watson v. the Republican National Committee, regarding whether or not the federal government could invalidate mail-in ballots received after election day. The majority, written by Justice Amy Coney Barrett, and joined by Chief Justice Roberts, along with Justices Sotomayor, Kagan, and Jackson, pointed out that (duh!) while the federal government sets the date of the presidential election, the states get to determine how those elections are run, including how the ballots are counted, including absentee ballots.

Barrett goes through the history of how absentee and “mail-in” ballots have been used since the Civil War, and for over a century many states have allowed them to be counted, so long as they were post-marked by election day. And democracy has survived without any indication of any problem with those mail-in ballots arriving after election day.

But, to Justice Alito, this is the end of democracy. In a typically overwrought dissent, he claims that this move (which again, many states started doing over a century ago), upsets the entire concept of an election.

The acceptance of these late-arriving ballots effectively postpones the date on which the electorate’s choice is made, and federal law precludes that postponement.

But as Barrett notes in the majority opinion, federal law sets the date of the election, not the date of the vote counting, or the date results get announced. Those are different things, and Alito pretending they’re the same is bizarre for someone who seems to think history should be his guide in legal issues. The majority points out:

The Constitution requires the “Day on which [the electors] shall give their Votes” to be “the same throughout the United States.” Art. II, §1, cl. 4. But it says nothing about the day for receipt, and, of course, 18th-century modes of transmission did not offer same-day delivery. The Constitution therefore envisions a system in which receipt is necessarily divorced from voting, and it sets the crucial, uniform day as the day of voting, leaving receipt to happen down the line. The federal election-day statutes follow the same pattern: They set when the people “shall give their Votes,” ibid., but leave open when those votes must be received.

And here, Alito’s complete ignorance of the history of American elections shines through. All we need to do is go back to the very first presidential election of George Washington, in which election day was set as February 4th, 1789, but Congress waited until April 6th of that year to fully gather and actually count and certify those votes — over a month past the originally planned March 4 inauguration date. The votes were all technically “submitted” — you could loosely say “mailed in” by election day — but it took two months to actually count them (and then over a week for anyone to tell George Washington he’d been elected).

So, I’m sorry, but Alito can spare me with the idea that counting ballots that arrive after election day somehow “postpones the day on which the electorate’s choice is made.” That’s just utter bullshit and wholly inconsistent with the history of this country and the way elections work. The actual election day can be a single day, but the votes can be counted way later, and the results announced even later. Saying that it violates the historical concept of “election day” to allow mail-in ballots that are post-marked by election day makes zero sense at all.

And it’s not like the Washington situation was a one-off of a young country trying to sort out its presidential election system. Four elections later, in the infamous 1800 presidential battle between Thomas Jefferson and Aaron Burr, the US had to wait until months later when the matter went to the House to resolve (perhaps Alito should rewatch the musical Hamilton, which dramatizes this moment).

Or the elections of John Quincy Adams, which was also sent to the House to decide long after election day. Or the infamous Hayes-Tilden fight in 1876, where many of the votes were disputed and it took a specific (and possibly corrupt) “Electoral Commission” to sort things out and give the election to Hayes just days before the inauguration was set to take place.

No matter how you look at it: the US has a long “history and tradition” of voting on election day, and then (sometimes) taking a great long while to sort out who actually won, including waiting to count all the ballots. Mail-in ballots that are post-marked by election day and counted later are perfectly within that tradition, no matter what Alito has to say.

Alito’s entire jurisprudential brand is built on the idea that history and tradition should constrain what courts can do. He made that the centerpiece of Dobbs. But when that same history turns around and bites him — when it turns out the United States has a long, consistent tradition of counting ballots well after election day — suddenly history doesn’t matter anymore. What matters, apparently, is whether the outcome suits the narrative. That’s Alito retrofitting a legal standard to reach an outcome he desires. It should be seen as an embarrassment for a Supreme Court Justice to do so, but as we’ve all learned, Alito has zero shame in cooking up pretenses to reach his desired outcome.

It is zero surprise that the Supreme Court officially overturned its 91-year-old precedent first created in Humphrey’s Executor. That case held that when Congress designates an agency as independent of the executive branch, the president cannot just fire its commissioners. The Humphrey’s Executor opinion stopped FDR from trying to fire an FTC Commissioner he didn’t like, and reinforced the important idea that Congress could design independent agencies, staffed by experts, that should be less prone to partisan political influence.

The Roberts Supreme Court has been signalling it wanted to overturn Humphrey’s for years, and it finally took until the case brought by former FTC Commissioners Rebecca Slaughter and Alvaro Bedoya* (unceremoniously fired by Donald Trump for being Democratically appointed) to make it official. In Trump v. Slaughter, the Supreme Court said outright that the president can fire commissioners of government agencies and laughed off the idea that Congress could ever create truly independent agencies.

And yet, on the very same day, the same Court said in Trump v. Cook, that the president cannot fire members of the Board of Governors for the Federal Reserve. In that ruling, the majority makes it clear that of course the Federal Reserve should be seen as wholly independent from the Executive Branch and the president can’t fire its Board members, because that would cause chaos!

Both cases involve the same basic fact patterns — involving whether or not the president can fire board or commissioner members of independent agencies. Both decisions were written by Chief Justice John Roberts. Both seem to take wholly opposite views without even a remote attempt by Roberts to explain how he can say both things (on the same day, no less).

And, as many people are noticing, about the only thing you can say about these two contradictory rulings coming down on the same day is that John Roberts believes in the imperial presidency when it impacts everyone else, but believes in Judicial supremacy when it impacts his retirement funds.

There is no other consistent principle here at all. None. Zero. Zilch.

As Madiba Denne writes in that last Balls & Strikes link:

Throughout Slaughter, Roberts warned that the “unity” of the executive branch would be “destroyed” if presidents could not fire agency officials at will. But in Cook, Roberts was much more worried about the destruction of the stock market. Roberts traced the development of the country’s first banking systems and asserted that the Framers knew “calamities” could arise from “even the suspicion of political manipulation of monetary policy.” The chief recounted at length how President Andrew Jackson opposed a national bank that “he could not control,” and suggested that the president’s meddling directly contributed to “an era of ruinous financial panics.” 

Without an independent central bank, Roberts said, there would be “no way to contain the damage whenever a major institution fell,” “no lender of last resort,” “no elastic currency that could expand to meet demand,” and “no mechanism to ensure that small banks issued loans only within their means.” Roberts concluded that at-will removal would be “corrosive” to the Fed independence that Congress sought to safeguard. The possibility that at-will removal would be similarly corrosive to the independence that Congress sought to safeguard at dozens of other agencies seems not to have crossed his mind.

Roberts ignores that the same reasons the Fed is designed to be independent are why the FTC, FCC, and other agencies were designed to be independent. Congress relied (for basically a century) on the Supreme Court blessing this arrangement to create a variety of independent agencies that lived under the Executive Branch, but were designed purposely by Congress with strong independence in mind.

In the Cook decision, Justice Brett Kavanaugh is the one who actually comes close to blurting out the truth, which Roberts carefully avoids. Kavanaugh admits that Slaughter and Cook stand in contrast, but that contrast is okay to him, because Trump fucking up the Federal Reserve would really fuck with monetary policy, and that’s what he really cares about:

I agree with the Court, moreover, that we should not leave open the question whether the Federal Reserve can remain an independent agency in the wake of Slaughter. After Slaughter, there is a clear choice: Either the Federal Reserve may remain independent (with the Governors removable for cause, not at will), or it may not. Leaving that question open would create significant uncertainty about whether the Court might soon eliminate the Federal Reserve’s independence, and thereby expose the Federal Reserve to political influences and jeopardize the efficacy of U. S. monetary policy. Even temporary uncertainty about the status of the Federal Reserve could spark political upheaval, including confusion about whether the President could immediately remove multiple Governors at will, as well as turmoil in the U. S. and world economies.

I would not go down that road. I would not risk destabilizing the U. S. economy just so that we can further mull over an issue that, in various permutations, we have been thinking about for many years.

This is quite the admission, though it’s unclear if Kavanaugh recognizes how astounding it is. He is basically admitting that while Slaughter creates chaos for all sorts of policies — consumer protection, labor relations, financial protection, etc. — that’s all for the little people. As Slate’s Mark Joseph Stern notes, the ruling in Slaughter creates a hugely damaging scenario for all sorts of rights:

The impact of this decision is gobsmacking. It strips independence from a vast range of federal agencies, including those that regulate nuclear energy, consumer safety, unions, hazardous chemicals, mine safety, crypto, and large swaths of the economy.

But those policies don’t matter to the Justices like Kavanaugh. Monetary policy, however, impacts his bottom line, and we can’t have that.

Such is also the situation with Roberts. Those other policies don’t impact John Roberts. But a screwy economic system would really put a dent in his various investment funds.

Denne again:

Part of Roberts’s justification for the outcome in Slaughter is democratic accountability—that removal power is necessary for the president to be the one person “with whom the buck stops.” But Roberts was clear, in Cook, that he’s really just concerned about the bucks: Giving Trump unfettered control over most federal agencies could help the rich get richer, and only screw over the little people, but giving Trump control of the Fed could cause an economic crisis big enough to negatively affect Roberts and his rich friends, too. 

Of course, the reality is that this decision isn’t so much about giving the presidency more power, it’s about giving Roberts’ Supreme Court more power. Yes, in the immediate future, this gives Donald Trump, as president, much greater power over the federal government, which will have many dangerous and damaging results.

But does anyone actually believe that the same John Roberts, who blocked former President Obama’s immigration policies or former President Biden’s student loan forgiveness policies, really believes in giving the executive so much power? Of course not. The lesson from John Roberts is clear: when Republicans hold the presidency, they have nearly unlimited power, with the one exception being when Trump threatens to wreck John Roberts’ investment funds. But when a Democrat is president, then suddenly the Supreme Court tut-tuts about how Congress restrains the power of the Executive Branch and it just can’t do anything about it.

The end result is that the power really resides in the ever-consistent view of John Roberts: Republican presidents can do anything they want, so long as it doesn’t harm Roberts’ investments. Democratic presidents are rightly restrained by Congress, and Roberts’ biggest job is swinging that big dial back and forth depending on who is in the White House.

Roberts has spent years whining about how unfair it is that people think his decisions have a political bias. But, really, if he didn’t want that, he maybe shouldn’t have handed down two rulings on the same day that so nakedly confirm exactly what he’s denied.

* Bedoya had to drop out of the case because while he was suing to get his job back, he couldn’t wait around unpaid for the years this case took, and had to go get a real job.

The folks at the National Center on Sexual Exploitation (NCOSE) have spent decades demonizing technology (and speech) they don’t understand, so it seems particularly ironic that they’re now getting benchslapped for allowing AI hallucinated citations in legal filings.

First, some background: NCOSE has gone through a few different branding phases, but for a long while were known as “Morality in Media,” an extraordinarily prudish and busybodyish entity that went around scolding retailers for offering magazines that showed models on the cover for being too sexy.

When they renamed themselves to NCOSE and started focusing on the internet (including the laughably false claim that any porn is a health issue and, now, that it’s a national security issue), they jumped on the anti-encryption and anti-Section 230 bandwagons, and politicians (including many Democratic ones who should have known better) quickly embraced the group under the false pretense that they actually were interested in ending sexual exploitation, rather than locking down the internet, and blocking any speech that acknowledges LGBTQ+ people exist.

Suffice it to say, the group is a far right, anti-sex, anti-speech, and anti-internet group, and it’s ridiculous that any politician supports them.

And now we can add to the list that their lawyers apparently can’t make it through a filing without fabricating citations — and then doubling down when caught. This came out in a convoluted case, in which NCOSE lawyers sued some Nevada brothels for supposedly exploiting women who chose to work there. It is possible that something bad happened in those places, but NCOSE apparently did themselves no favors by hiring a local lawyer whose AI-assisted work they were supposed to review — and then didn’t. Even worse, when the other side called out the hallucinated citations, NCOSE’s lawyers tried to attack the defendant and play down the hallucinations… in a filing with more hallucinated citations:

Let’s have Judge Andrew Gordon explain the basics:

Her briefs contained AI hallucinations. Despite Bistro pointing out these errors in its opposition, JD2 did not withdraw or correct her motion and her reply brief also contained misquotes. Bistro then filed a notice identifying the reply’s misquotes. About a month later, JD2 filed multiple errata, an amended motion for reconsideration, and an amended reply that purported to correct these errors, but the amended motion still contained AI hallucinations.

The order also suggests that NCOSE and the local lawyer they hired engaged in an awful lot of finger pointing and blame passing rather than, you know, doing actual lawyering. And then, once they were on notice of falsified filings, they… didn’t fix them. Indeed, NCOSE’s lawyers continued to rely on a hallucinated citation.

And thus, the defendants win their motion for sanctions, striking the falsified filings from the document, and denying the original request to reconsider an earlier ruling dismissing NCOSE’s exaggerated claims. The court notes that while it was the local lawyer who used the AI (and eventually admitted to doing so), the real problem is with NCOSE’s lawyers:

I have read Guinasso’s affidavit about the serious life events he was experiencing during the time frame of these violations, and I am sorry for his losses and the strain that must have put him under. But, as he acknowledges, that does not excuse the over-reliance on artificial intelligence without a human cite-checking the papers. I credit him for accepting responsibility and implementing procedures that hopefully preclude repeating this incident.

Although JD2’s motion and Guinasso’s declaration request that any sanctions fall solely on Guinasso, that is not appropriate here. There were six NCOSE attorneys on this case at the time. Additionally, the evidence before me shows that the NCOSE attorneys had some responsibility for cite checking. Although the errors may have begun with Guinasso, both Guinasso and Hirsch state that the NCOSE attorneys were supposed to double-check his citations. Moreover, Bistro’s opposition to the original motion for reconsideration should have put all attorneys on notice that there was an AI hallucination problem. Bistro devoted considerable space in its opposition to pointing out those errors, including that cases did not stand for the proposition cited, that quotations did not exist as cited, and that specific cited sources did not exist altogether. Rather than apologize and promptly fix the motion, JD2’s counsel minimized Bistro’s concerns and, in what is a bit of a pattern, criticized Bistro for attacking citation errors, calling Bistro’s concerns quibbling and distraction devices.

The NCOSE attorneys admit they were asked to review the original draft reply brief. That reply brief mentioned that Bistro had challenged citations in the motion for reconsideration. Despite being asked to review the reply brief, Hirsch stated at the hearing that the NCOSE attorneys had not read Bistro’s opposition brief, which is itself disturbing. Reading the draft reply brief should have tipped the NCOSE attorneys off to a potential problem. So laying all the blame on Guinasso’s shoulders for the initial errors is not warranted.

Moreover, Hirsch admits that she drafted the amended filings. The amended motion for reconsideration still contains two critical citation errors. It cites the Marcum case for a proposition that Marcum does not even address, much less stand for. And it cites the Cross case, which does not exist. These are not minor errors. JD2’s reconsideration motion rests in significant part on the argument that, under Nevada law, a contract procured through a threat is void, not voidable, and she cites Marcum and Cross for that proposition. Those errors remain uncorrected to this day, and the briefs with the offending AI hallucinations still have not been withdrawn. At the hearing, Hirsch stated that “even without those cases in there and without the premises that we said that they stood for, the substance of the motion is — stands and is still arguable.” But “[i]t is irrelevant that other cases may stand for the propositions asserted” because if other cases support the propositions, then it is the lawyer’s “responsibility to cite them.” Malkeet Lnu, 2026 WL 1587554, at *8. Moreover, later in the hearing, JD2’s new local counsel candidly admitted that he could locate no existing Nevada law that would support the reconsideration motions’ argument that duress makes a contract void rather than voidable. Thus, the failure to withdraw or correct these citations in the amended motion is significant.

So in the end, the judge orders the plaintiffs lawyers at NCOSE and the local counsel, Guinasso, to pay the defendant’s legal fees.

I also impose monetary sanctions in the form of Bistro’s reasonable attorney’s fees jointly and severally against the National Center on Sexual Exploitation and Guinasso Law, Ltd. Reasonable attorney’s fees are an appropriate sanction under both my inherent power and 28 U.S.C. § 1927. Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101, 107 (2017) (inherent power); 28 U.S.C. § 1927 (“Any attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”). “Citing even a single fake case can be sanctionable because no brief, pleading, motion, or any other paper filed in any court should contain any citations—whether provided by generative AI or any other source—that a lawyer has not personally read and verified.” Whiting, 170 F.4th at 461 (simplified)). Citing fake legal authority is not harmless. It wastes the other parties’ and the court’s resources trying to track down the nonexistent cases. Id. at 467 (“Citing fake cases unnecessarily burdens the court and the taxpayers, so courts can and should fine the offending lawyers to reimburse the court for its time.” (simplified)). And the burden it imposes on the opposing party and the court is lopsided because “[w]hile one party can create a fake legal brief at the click of a button, the opposing party and court must parse through the case names, citations, and points of law to determine which parts, if any, are true. As AI continues to proliferate, this creation-response imbalance places significant strain on the judicial system.” Ferris v. Amazon.com Servs., LLC, 778 F. Supp. 3d 879, 880-81 (N.D. Miss. 2025). To rectify that imbalance, an award of fees is warranted in this case.

For what it’s worth the NCOSE lawyers apparently also had tried to argue that the defendants legal fees were its own fault for not filing for sanctions earlier, and the court is (rightly) having none of it:

I reject JD2’s argument that Bistro’s fees are its own fault for not filing a Rule 11 motion. Bistro did not originally seek sanctions and instead was content to point out the errors in its response brief and let the original motion for reconsideration play out on the papers. It was JD2’s counsel who did not read the opposition brief that pointed out the errors, did not withdraw the briefs, decided to instead file the errata and amended briefs, did so without leave of court, left AI hallucinations in the new filings, and materially altered her briefs through a procedural mechanism that did not give Bistro an opportunity to respond to these changes. Despite acknowledging that the amended reconsideration motion still has AI hallucinations, JD2’s counsel has not withdrawn that document or moved to correct it to this day.

The next time NCOSE shows up at a Senate hearing — and they will, because nothing stops a well-funded moral panic lobby from getting a Senate invite — someone should slide this ruling across the dais. Senator Richard Blumenthal has treated NCOSE as a credible voice at KOSA hearings for years, despite ample evidence that the group cares far more about restricting speech than protecting anyone from exploitation. Now there’s a federal judge’s order explaining, in patient detail, that NCOSE’s lawyers fabricated citations, doubled down when caught, and filed corrected briefs that still contained fabrications. The fake cases are still in the record. The organization still hasn’t withdrawn them.

And yet this is who Blumenthal thinks you should trust in helping set internet policy for hundreds of millions of Americans.

Back in July of 2024, when two of the biggest big shots in venture capital, Marc Andreessen and Ben Horowitz, explained why they had decided to go all in to back Donald Trump’s campaign for re-election, they talked up a good game about how they would support any candidate who supported their “little tech” agenda. This always rang hollow — Andreessen has been on the board of Meta for years, which is the most anti-little tech company around. They also whined about the Biden administration tech policies, in particular around AI, cryptocurrency, and antitrust. But the most telling part of the full podcast had nothing to do with tech policy at all. Marc and Ben spent a bunch of time positively offended that Joe Biden and some (only some) of his agency heads wouldn’t meet with them:

We have been spending a tremendous amount of time with Senators, Congress people on both sides of the aisle. Mark mentioned we met with President Trump. We did meet with White House officials, including Jeff Zients the chief of staff, and Jake Sullivan the National Security advisor, Gina Raimondo the Commerce Secretary and so forth. We have not met with President Biden. We attempted and failed.

….

We tried to meet with Gary Gensler — he’s the chair of the SEC, he’s running this campaign against crypto. We’re the largest crypto investors or largest blockchain investors in the world, and we’ve requested meetings with him at least a half a dozen times. I even was able to get in contact with his office mate at MIT, who said ‘surely Gary will meet with you, it’s so important that he meets with you’… and he couldn’t get us the meeting.

Meanwhile, they seemed to love the fact that Donald Trump would have dinner with them, and Trump family members would vacation with them. Here’s Marc:

Ben and I had dinner with the former president 10 days ago at Bedminster, his golf club in New Jersey, and had a three-hour dinner. And so, you know, we were quite literally just with him… you know, he’s a very complicated guy, people have a lot of opinions, but when you know somebody like that — you know the family — it really hits hard

And here’s Ben:

Marc and I have both gotten to know the family, particularly Jared and Ivanka and their kids — Arabella, Joseph and Theo. And in fact, like, Ivanka and the kids were just at my house. We went to see David Copperfield, all that.

The real complaint was never about policy. It was always about embracing the fascism of it all, in which they (Marc & Ben, not the wider tech industry) would get to write the rules in a way that helped them personally, even if it fucked over actual innovation. Indeed, they seemed tickled that after they had dinner with Donald Trump, he rewrote part of his campaign policy platform. These total political novices were so overwhelmed that they could get one side to listen at all that they figured it was obviously the side to back. They seem positively giddy that Trump was willing to make changes to his platform based on their conversations.

There was also a longer discussion regarding how Marc and Ben contrast what they think (misleadingly) was Biden’s policy on AI vs. what Trump’s policy would be. My favorite bit is where Marc says they “confirmed” with Trump what his AI policy would be, as if the guy doesn’t have a decades-long history of promising one thing to whoever is in front of him and then doing something entirely different.

Ben: Let’s talk about Trump’s proposal. We actually discussed this with him when we had dinner

Marc: Yeah, we discussed all these topics and confirmed all this. So: Chapter Three, “Build the Greatest Economy in History.” Bullet five, “Champion Innovation.” Item two, “Artificial Intelligence”:

“We will repeal the dangerous executive order that hinders AI innovation and imposes radical ideas on the development of this technology. In its place, we will support AI development rooted in free speech and human flourishing.”

Ben: That sounds like a good plan to me!

When we met with him, I thought his comment was really insightful and good. It’s funny — I would contrast the Biden administration’s approach, particularly in the inner core of the White House, with Trump’s approach. The White House has a very complicated model of things. They think they know a lot — they know that startups aren’t going to be important, that only a few companies will be able to field big models. They know all these things that we don’t know, and we don’t. They’ve never heard of distillation, apparently, or how AI is actually working in practice. It’s a very complex view of the world.

Trump’s view was very simple. What he said to us is, “Look, AI is very scary, but we absolutely have to win — because if we don’t win and China wins, that’s a very bad world.” And I think that’s actually a more correct view. That’s basically true. When things start happening that do need regulation, then we should regulate them. But to anticipate it would be kind of like saying, “Oh, the automobile is coming out, and we think somebody’s going to make an automobile that drives 500 miles an hour nobody can control, so we’re going to just outlaw cars now.” That’s a little bit this approach to AI — “Well, we think in the future there’s going to be a sentient model.” Now, nobody has built anything anywhere that’s on the way to sentience. And so doing that — what we have are these great things that can tutor kids, so “No, you can’t tutor kids, because maybe somebody will come up with an idea that will make AGI, and so we have to cut off the tutors.” It’s that kind of thinking, which is quite scary, I would say.

That final bit is quite telling as well. Biden’s plan was too complex. Trump’s plan was simple. Perhaps that’s because he’s a simpleton who has no understanding of actual policy tradeoffs. Biden’s team definitely made some decisions I strongly disagreed with regarding tech policy, but the “complexity” they whine about is because the issues here are, legitimately, complex.

So, um, given that the Trump administration has basically put in place a much dumber and much worse version of what Marc & Ben said Biden was doing… clearly they’re out there admitting they were wrong, right?

In just the last few weeks we not only had the US government force Anthropic to turn off Fable 5 and Mythos 5 models (even as the NSA itself was finding them useful!), it also made OpenAI limit the release of GPT 5.6. Meanwhile there are reports that the Trump administration is furious that Meta has been the one US frontier model provider that won’t let them pre-vet its AI models and decide which ones can and can’t be released.

So, two years ago Marc & Ben were yucking it up about how the Trump admin would stop trying to hold back and regulate big models, which they (falsely) claimed the Biden admin was doing. And now that the Trump admin is doing exactly that… it’s crickets from Marc and Ben.

Apparently their real concerns had nothing to do with such policies after all. Marc and Ben won’t tell you that directly, of course. But someone in their general orbit already has.

A little while ago the Bulwark’s Tim Miller did an interview with Jason Calacanis, a Silicon Valley entrepreneur/investor/gadfly, discussing a variety of issues regarding the tech industry. I only came across this because Karl Bode’s discussion regarding the SpaceX IPO mentioned it, to point out some delusional thinking about how Starlink works. But the rest of the interview is actually a lot of Calacanis saying the quiet part out loud regarding how Silicon Valley bros view all this fascism and corruption: positively, because they think they can handle fascism and corruption.

Miller pushes Calacanis on some points regarding why the Silicon Valley VC bros still support Trump’s fascism when it’s so obviously against things like open innovation and the free market, and Jason (almost gleefully) mocks Tim for just not getting it. He happily admits that the tech bros don’t have any actual principles at all. They just understand transactions, and Trump remains transactional.

Jason lays it all out as Tim points out that if a President Kamala Harris did a tiny bit of what President Trump is doing right now, the VC bros would be losing their minds, and Jason says none of that matters, because the VC bros understand that as long as everything is corrupt and “coin-operated” then they understand the game. Their biggest fear is that they’re just not that important, and policy might get made with no one caring what they thought:

Tim Miller: I want to give you a counterfactual. Kamala Harris did win. Okay. She gets in there and she puts an illegal tax on the Silicon Valley companies unilaterally. It doesn’t go through Congress. Puts a tax on them. It’s not legal, but she just does it. She says, “It’s an emergency. I’ve decided I have the right to do a, you know, whatever — windfall profits tax on all these companies. I’m going to do that.” And then she garnishes money from the CEOs. She makes them come to her and beg her for absolution to get around it. Sometimes she grants it, sometimes she doesn’t — kind of based on whim, kind of based on whether Doug is friends with the person, kind of based on whether they’ve given money to her. And then the Supreme Court comes back and says, “No, actually you’ve got to give the money back to the companies.” And she says, “No, actually I don’t want to. I’m not going to do that. In fact, I’m going to threaten them, and maybe I might actually take a percentage.” Donald Trump just suggested he might take a percentage of the company for the government. If Kamala Harris had said that, you and all your Silicon Valley buddies and the Wall Street Journal would be losing their minds, and it would [be] communism.

Jason Calacanis: So you’re making this analogy to tariffs?

Tim: This is what Trump is doing — with tariffs, and with taking a percentage of Intel, and he’s suggesting he’s going to take a percentage of AI companies. He tariffed them illegally. He made them come in and beg for their lunch. That’s left-wing autocratic politics is what he’s doing.

Jason: Yeah. I can educate you as to why they don’t have a problem with it and why you do. You are looking at it from a moral perspective, and from a logic perspective of like, “Well, if you were okay with one side doing it and not okay with the other side doing it, this doesn’t make intellectual sense to you.” Totally understand where Tim Miller is coming from. This intellectually does not make sense. Let me tell you on a business level what this means.

The tariffs, when they’re under 15%, when they actually hit, are easily absorbed on one side or the other — the folks who are selling items, or the folks who are providing those. They each make a bit of a concession, and maybe you raise the cost of something a little bit, but it’s not as dramatic as the left feels it is. It was chaotic, but when it actually hit the ground, it made no difference to these businesses. So, a lot of hand-wringing for not a lot of impact.

And you find it offensive, reasonably so, that people have to go bend the knee and bring a gold bar and wait in line. And South Park did a whole sendup of it — that you have to bend the knee and make your donation. That’s what business people like. They like transactions. You may not like it. You may think it’s crummy. Business people love to have a coin-operating situation.

Tim: I guess. But this whole Biden thing is crazy. It’s like — he didn’t even raise taxes on them. Trump has raised tax. You can tell me that fine, the tariff thing is inconsequential. Okay, fine. But the last federal corporate tax hike was in ’93. Like, they haven’t — they’ve only gotten cuts, from Obama, from Biden. They haven’t faced a corporate tax hike in 30 years or more. So who — why, who cares? Why are they so upset about the Biden situation?

Jason: Because Biden didn’t return their calls.

Tim: So the tariff isn’t a big deal. The phone call is. That’s fine. All right.

Jason: No, it actually is. You’re brushing that off. And this is where you have a blind spot, Tim. Respectfully, you have a blind spot. If you can get in the room with the person, if you can get in the room with the administration, and then you can shape policy and you can say, “Hey, here’s what we’re trying to accomplish, and hey, can you help us with this, and this regulation doesn’t make sense?” — that actually is a preferable situation to not getting your phone call returned. And if [that’s] what you have to pay for it — I’m not saying this is my belief; you have me on here to explain Silicon Valley and the business side, I’m explaining it to you — they much prefer bending the knee, having to show up for the Melania documentary. Tim Cook’s like, “I gotta show up for a documentary. That sucks. I gotta bring a gold bar. I’ll do whatever it takes to keep selling iPhones.”

It’s possible this is correct, but that’s basically the definition of Mussolini’s brand of corporate fascism, when the business elites team up with an autocratic ruler to better control the entirety of society, not for the benefit of society or the public good, but for their own.

Early on in the second Trump administration, I wrote an article titled Fascism for First Time Founders, about how this tends to end very badly for the business leaders who embrace it. I stand by that article, and think it’s even more relevant today than it was then. Fascist regimes don’t tend to last long, and the business leaders who embrace fascism in pursuit of becoming all-powerful oligarchs tend not to come to happy endings, no matter how wealthy it makes them for a short period of time, or which leaders are willing to return their calls.

You’d think that some of these “visionary” business leaders could look beyond the current administration and get a sense of where this story is heading. Apparently, that’s too much to ask.

Dean Ball, a policy analyst on AI who was placed in the White House by Silicon Valley folks to write Trump’s original AI policy (which was published to great fanfare and then totally ignored) has written an article about how the Trump AI policy is a total mess right now, where it’s based on whims where literally no one knows what’s allowed (the situation Marc & Ben falsely claimed would happen under Biden).

1. When President Trump signed it earlier this month, I argued that the Executive Order on Cyber and AI, which claimed to establish a voluntary testing program for frontier AI models, was really establishing a de facto involuntary licensing/preapproval regime for frontier models. This analysis has proven correct. First the administration revoked public access to Fable, Anthropic’s latest frontier model, because of security fears. Now, it appears that OpenAI’s GPT 5.6 is being limited to only a small set of US companies at the request of the US government.
2. One major problem with this, as implemented, is that nobody knows what the requirements are to get licensed.
3. When I say “nobody” I mean it literally: the administration itself does not seem to know what safety standards or best practices a company would have to observe for them to be comfortable with the broad release of a model that matches or exceeds Mythos in capability.
4. This means that, every time a lab asks if they can release their model to the general public, the answer from the government will be “no.” This will be true until there is some sort of safety standard or specification that gives the government a sense that the models are safe.

Ball doesn’t attribute any of this to a deliberate authoritarian agenda, but rather argues that the AI has just gotten so good that the doomers’ fears are finally coming true. That’s the charitable read. The simpler explanation is right there in the Calacanis interview: these VC bros thought they could control Trump and are still over the moon he returns their calls, even as he does all the things they claimed would destroy the industry.

But he returns their calls. For now, at least.

The main issue is that we have a power mad president, surrounded by yes-men and sycophants pushing him to grab more power. And you have the Silicon Valley elites who have the president’s ear egging him on… because he’ll return their calls and because, as Jason said, they understand a coin-operated president.

Even if it’s worse for innovation. Even if it’s worse for society. But it might be better for their bank accounts (for a while) and their egos to be a part of making the AI trains run on time. Until they don’t. Because situations like this are woefully unstable, and at some point, Trump and the MAGA crew won’t actually be in charge any more.

Marc and Ben claimed what they feared most in 2024 was a presidential administration that would shut down the most powerful AI models, regulating math, and hand-picking a few winners and losers. And that’s why they supported Trump. Now that Trump has gone way further than Biden even suggested he’d go in limiting powerful AI models, there’s been no public indication I can find that Marc and Ben regret their choice as president. After all, he’s still coin-operated and he still returns their calls.

Jason explained it perfectly. They bend the knee, they get in the room, they bring the gold bar. That it doesn’t lead to innovation policy that helps tech (little or big) doesn’t really matter. Trump returns their phone calls. They get to feel big. They still get richer. The point was always about access. They got it.

That’s the corporatist fascism they always wanted anyway. Business elites teaming up with an autocratic ruler not to figure out what’s best for the public or for innovation. But for power and control. They get to decide who gets what innovation. What models are allowed. Who can innovate.

The problem with Biden, apparently, wasn’t so much that he wanted to put some safety guardrails on AI. It was that he wouldn’t let the VC bros sit with him while deciding who the winners and losers would be. But here we have it. Business elites and an autocratic ruler picking winners and losers. History is pretty consistent about where this all ends up.

The VC bros said it was about policy. It wasn’t. But no one should ever accept Marc Andreessen and Ben Horowitz pretending they speak for “little tech” or innovation ever again. Not after this.

A month ago, I wrote that the Supreme Court’s six conservative Justices have exactly one consistent rule on whose votes count: Black people’s votes shouldn’t count. The pattern was simple. If a ruling would help Black votes count, the Court — led by Justice Samuel Alito — found a reason to block it. If it would help suppress the Black vote, that was treated as normal and fine. Indeed, it would be treated by Alito as “race-neutral.”

Now Alito has given us an even starker version of the same instinct, and this time it’s not even about votes. It’s about whether the most openly racist rhetoric imaginable counts as racist at all. To Alito, apparently, it doesn’t — because to Alito, it’s just how the world works.

It’s in the case of Mullin v. Doe, regarding the Trump administration terminating “Temporary Protected Status” (TPS) for hundreds of thousands of Haitians and Syrians. The lower courts had blocked that effort, but Alito leads the MAGA Six in reversing it, and primly insists that there’s simply no evidence at all of any racial motive in ending TPS status for Haitians. If there had been a racial motive, then it could violate the Equal Protection Clause, but Alito insists that it’s not racist to hate Haitians. It’s just normal and “race-neutral.”

The President’s comments fall into four main categories. First, many express strong objections to the immigration that this country has experienced in recent decades and to many of the immigrants who have come here, particularly those who have come to or stayed in the United States illegally. These statements associate these immigrants with crime and other social ills. Second, some statements express great displeasure with TPS. They note, among other things, that TPS designations have often been far from temporary and that aliens who are allowed to stay in the United States under the program are not vetted like other aliens who seek admission. Third, some statements broadly denigrate the countries for which TPS designations have been granted—including Haiti—portraying them as hellish places in which to live. And fourth, some statements malign Haitians who have come to the United States….

…. None of the cited statements by either the President or the Secretary was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications. For example, one may oppose TPS and favor tighter restrictions on immigration for economic or other reasons that have nothing to do with race.

Justice Kagan, in her dissent, points out how full of shit Alito is by noting he can’t even bring himself to quote Trump’s vile bigotry, which would immediately broadcast the lie that Alito is pushing: that the ending of TPS for Haitians has nothing to do with race:

Even putting the clear-error standard aside, the Haiti plaintiffs have carried their burden. The evidence they have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print. (Indeed, one measure of the President’s way of speaking about Haitians is to compare it with the majority’s, which is unfailingly respectful.)

So here are some of those statements. Haitians are “eating the dogs . . . . They’re eating the cats. They’re eating—they’re eating the pets of the people that live [in Springfield, Ohio].” … And: Haitians are also eating “other things too that they’re not supposed to be.” … And: Haitians in the United States “probably have AIDS.” … And: Haiti is a “shithole country,” which is “filthy, dirty, [and] disgusting.” … And: Haitian immigration is “like a death wish for our country.” … And: Haitians, along with some others, are “poisoning the blood” of our country. … And: “Why is it we only take people from shithole countries” like “Haiti [and] Somalia”? “Why cannot we have some people from Norway [and] Sweden?” … The majority briefly replies that those remarks are not “overtly racial,” ante, at 21, but it is hard to know what that means. Haitians are Black. (Norwegians and Swedes not so much.) The references—of filth, disease, and primitiveness—are shot through with racial stereotypes and tropes. It is hard to imagine the statements being made today of any White community. No very “sensitive inquiry,” of the kind Arlington Heights compels, is needed to see them for what they are, 429 U. S., at 266; judges, as we often say, are “not required to exhibit a naiveté from which ordinary citizens are free,” Department of Commerce, 588 U. S., at 785. The statements fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.

This is how an extreme racist who doesn’t think of himself as one operates. Alito can’t see Trump’s bigotry as racist because he shares the underlying worldview — and a worldview that feels like simple common sense to you doesn’t register as “bias.” That’s not a charitable read of Alito. It’s the least charitable one: the racism is so deeply baked in that it’s become invisible to him, the default setting. He can squint at a “they’re eating the pets” / “they probably have AIDS” / “shithole countries” rant and call “race-neutral” with a straight face.

And here’s the tell that collapses the whole “race-neutral” defense. Alito’s argument depends on the idea that all of this could rest on some neutral, non-racial criterion — poverty, crime, lax vetting, take your pick. But the same administration has built what is effectively a whites-only refugee policy: all but three of the 4,499 refugees admitted under Trump are white South Africans. If the criterion were really poverty or danger or vetting, that is not the population you would end up with. The only criterion that explains both halves — Haitians out, white South Africans in — is the one Alito insists isn’t there.

Adam Serwer, over at the Atlantic, points out that this particular makeup of the Supreme Court has now made it clear: they are so overtly racist that they will never, ever deem anything as racist.

In his opinion, Alito notes that the administration had previously eliminated TPS protections for countries in Asia, Africa, South America. “Most would regard this as a racially diverse group,” he writes, as if racism toward all nonwhite people doesn’t count as racism. But that’s a perfectly coherent ideological principle, the same one that led to the eugenics-inspired racist immigration restrictions that Miller has insisted should be restored, right down to the preference for Nordic immigrants.

And here’s where it connects back to where I started. That “any pretext will do” logic isn’t new — it’s the exact machinery I described last month in the voting cases. In Louisiana v. Callais, the Court decided that requiring Louisiana to draw a second majority-Black district — so that Black voters could actually elect someone — was itself the real racism. The trick is the off-ramp: a state caught discriminating against Black voters just has to say the magic words “we were being partisan, not racist,” and the Court waves it through.

Mullin now sets up an even more impossible double standard. If the government wants to discriminate against Black people, any pretext will do. “As long as there is a plausible basis—any plausible articulable basis—for the government’s action, then the Court will look to that basis as sufficient,” Aderson Francois, a law professor at Georgetown University, told me, “even in the face of evidence that government actors were motivated by animus.” If a Black person wants to prove they’ve been discriminated against, however, no amount of evidence will suffice.

Well, there is one exception to the idea that “no evidence” will be seen as racism. If a policy is seen as helping minorities, Alito will eagerly claim that’s totally racist.

Alito’s insistence on ignoring the possibility of someone using a pretext to engage in racial discrimination is actually quite selective. In a 2009 case on affirmative action, Ricci v. DeStefano, for example, Alito was happy to dismiss as “pretextual” the city of New Haven’s reasoning for why it threw out test results in which white firefighters performed better than their Black colleagues (it feared a lawsuit). When a Virginia school implemented a race-neutral, class-based affirmative-action policy, however, Alito insisted that the policy was by definition racist because it changed the demographic composition of the student body.

This is exactly how a racist thinks: any bigotry towards non-whites is normal and good and “race-neutral.” But anything seen as attempting to help fight back against bigotry is unfairly making decisions based on race, and therefore racist.

Indeed, as Serwer quotes law professor Melissa Murray in his piece:

“This Court sees race when it wants to, and blinds itself to racism in most other cases,” Melissa Murray, a law professor at NYU, told me. “It’s hard to imagine how egregious the statement would have to be to be considered ‘overtly racial’.”

Georgetown law professor Aderson Francois goes further — arguing that Alito’s pretense is in one respect uglier than the Court that ushered in Jim Crow:

Francois compared the Roberts Court to the 1880s justices who opened the door to Jim Crow. That Alito “pretended these statements were or could be race-neutral means that in some ways,” the current Court is worse than that earlier one, Francois told me. At least the 19th-century Court had “the intellectual courage to state its racist convictions plainly.”

In the meantime, though, many, many thousands of Haitians are going to suffer. So too will the communities where they have integrated and become vital to the local economy. Even Republican Ohio governor Mike DeWine has been calling out how unnecessary, cruel, and damaging this ruling will be to all of Ohio:

“It’s Haitians who many times are taking care of your mom or your dad who has Alzheimer’s, taking care of family members who might be in a nursing home,” DeWine said. “And to say we’re going to pull all those out, it’s just not in our own self-interest.”

History will not be kind to Samuel Alito. He is already widely viewed as one of the worst Supreme Court Justices, one who is overtly political and regularly engages in obviously biased and partisan judging. But it’s time to stop pretending he’s not driven by a pretty aggressive, extreme, and despicable level of out-and-out racism. It appears to be a key driving force behind his judicial decision making, and it should have no place in modern America.

Once again, it’s time to expand the court to at least 100 Justices, so that no single Justice — such as the overtly racist Samuel Alito — has as much power as he does. Yes, it’s true that the other MAGA five have no problem going along with and enabling Alito’s brand of racism, which many of them may harbor as well. But the fact that Alito’s name keeps appearing on so many of these blatantly racist decisions needs to be called out as an example of how broken the Supreme Court is.

Ctrl-Alt-Speech is a weekly podcast about the latest news in online speech, from Mike Masnick and Everything in Moderation‘s Ben Whitelaw.

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Just a couple weeks ago, the European Commission put out its plan for “European tech sovereignty.” It’s not surprising that Europeans are looking at their internet platform options and seeing a choice between US companies and Chinese companies as something that isn’t that appealing. Of course, Europe has mostly itself to blame for this mess. As an Economist piece in April noted, the EU effectively regulated its own internet ambitions to death:

Here is an uncomfortable truth for hand-wringing policymakers in Paris, Berlin and beyond: Europe’s dependency on America Inc is in no small part Europe’s own fault. Decades of over-regulating the old continent’s economy left businesses there unable to compete with American firms, which went on to trounce European ones even in their own backyards. What Europeans could not build quickly for themselves, due to a thicket of regulations, they often imported just as quickly from abroad….

Tech is where the dependency seems most acute. Europe has few firms at the forefront of AI, space or high-end computing (one notable exception is ASML, a Dutch firm globally vital to chipmaking). Even governments often have little choice but to use the likes of Microsoft or Amazon for cloud services, Palantir to sift through data or SpaceX to launch military satellites. Quixotic attempts to shake off big tech abound, for example by having civil servants ditch Windows for some clunky substitute. Too often the European alternatives are lacking anyway. It turns out that boasting about regulating AI before the public had made their first ChatGPT query—as the European Union did in 2021—is not conducive to home-growing AI champions.

Yes, EU rules often applied to American firms, insofar as they wanted to offer their wares in the bloc. But regulation in practice hit European firms harder. The costs of administering complex data-protection rules, say, could easily be absorbed by a Google or OpenAI, with their hordes of compliance staff. Not so their European rivals, which have usually lacked scale (if only because the EU’s fragmented single market made it harder for them to grow beyond their home country). The EU thus generated barriers to entry that often ended up protecting American giants.

And so the EU is going back to the drawing board, once again thinking that it can technocrat its way to technical competence, and that seems unlikely. After all, weren’t the EU’s two biggest pieces of signature tech legislation — the Digital Services Act (DSA) and Digital Markets Act (DMA) — supposed to solve all of this already?

I’ve long been a critic of both laws that were in some ways too vague and in other ways too restrictive all along, but at the very least they were the product of a fairly lengthy process, in which EU regulators were made well aware of the tradeoffs of various approaches. And they chose to land where they landed. This new move by the European Commission isn’t quite an admission of failure, but it sure is a sign that what they insisted would create the right incentives for local competition hasn’t yet worked.

But, of course, none of that may matter if the Court of Justice of the European Union (CJEU) — the highest court across the EU — continues to YOLO its way through internet law. Back in December we wrote about its deeply problematic ruling in the Russmedia case, which more or less ignored the fragile balance that the DSA had set forth regarding intermediary liability for third-party speech, by insisting that any platform operator must scan any user generated content for “sensitive personal data” about anyone else and block it. It effectively required full scanning of every piece of uploaded content, a ban on anonymous speech, and a requirement that “bad” posts somehow be blocked from anyone copying them.

And now it’s taken that up a notch in its new WebGroup ruling (full ruling currently only available in French, but Google translate works, at least while Google can still operate in the EU). While the headline regarding the ruling is that the CJEU says that age verification mandates are fine regarding pornographic content (matching the US Supreme Court on that one), the ruling goes even further, and suggests that any website that has algorithmic recommendations for content should take on liability for the content it recommends.

I recognize that some people are cheering this on because they hate “big tech” and think this will somehow damage it. That’s wrong. It will damage smaller tech players (such as the ones the EU is trying to encourage companies to build in the EU) way, way more. I’ve written before, in the US Section 230 context, why it’s a terrible idea to make recommendation algorithms liable for the content they recommend, and that reasoning applies equally in the EU.

Recommendation algorithms actually do, on the whole, make the internet experience much more bearable. I get that more and more internet users grew up in an era dominated by the algorithm, but it was not better before that. The internet was so filled with nonsense and junk that people begged for better algorithms. And in this new era, with the rise of AI slop, it would be even worse.

But, more to the point, a recommendation algorithm is simply stating an opinion of “this is what we think you should look at next.” We can debate the purpose of that opinion, and whether it is solely to extract more attention or money from users, or to actually provide them value. But that doesn’t matter. Nothing in “this is what we think you should look at next” is (by definition) a full-throated endorsement of the content. It’s literally “based on other stuff you’ve looked at, and our own weights and priorities, here’s what you should look at next.” It has no way of reviewing the actual quality of the content, determining if it’s helpful or not, factual or not, or nonsense or not.

That’s just not how any of this works.

But once you put liability just for recommending “this is what the algorithm thinks you should look at next” you make it ridiculously expensive to offer any sort of algorithm — even in situations like Bluesky where anyone can create and share their algorithms for others.

The end result is that the only companies who will be able to recommend content — which, by every possible measure in every possible study, we’ve seen the vast majority of internet users prefer — will be the largest companies in the world: Google, Meta, TikTok. All of the upstart competitors, all of the services the EU now says it wants to grow at home, would find it impossibly difficult to offer such a feature, because the risk of liability would be way too intense.

For all the many problems I had with the DSA, on this it mostly got the equation right, recognizing that pinning liability on platforms in this manner could have really negative effects. And while I still think the DSA should have gone much further in protecting intermediaries, the CJEU interpretation here basically takes a sledgehammer to the attempted balance within the DSA.

The mistake the CJEU is making here, as highlighted by expert Daphne Keller, is that in thinking that this will “make big tech more responsible” it actually empowers them, encourages them to engage in constant monitoring and surveillance, and basically appoints them as the speech police. What could go wrong?

Some of us have been making this point for years. And the results of earlier laws (like the GDPR) showed exactly how this would play out, entrenching the largest companies and leaving the EU once again flailing around demanding new laws to fix the situation their old laws created.

It’s understandable that the EU doesn’t like its tech platform choices. But it’s now in a loop of its own making. Fail to understand the technology, fall prey to a moral panic, over regulate… and then wonder why no one is building and the big American tech companies just get bigger. Rinse and repeat. The CJEU’s latest ruling undermines the attempt at balance laid out by the DSA and completely sabotages the “homegrown” sovereign competitors the Commission so desperately claims it wants to cultivate — while handing the surveillance infrastructure bill to the only players big enough to pay it. The Commission can call it tech sovereignty all it wants. The CJEU just made vassalage structural.

Remember a few years ago when both Texas and Florida passed laws trying to tell social media companies they couldn’t moderate political content? Those cases eventually made their way to the Supreme Court, where the Court (as it’s been known to do) kinda punted: sending the cases back to the lower courts on technical legal grounds, claiming that the plaintiffs, NetChoice and CCIA, had mistakenly filed the cases as “facial” challenges, rather than “as applied.” It’s not worth going into the legal weeds again about the difference here, especially since the ruling had tons of important and useful language making it clear that content moderation is protected by the First Amendment in the case dubbed “Moody” after Florida’s former Attorney General.

But, the two cases have continued to bounce around the courts over the past few years, and the district court in Florida has rejected both the plaintiffs and the state’s motions for summary judgment, but in doing so has again made some great arguments about how content moderation gets First Amendment protections. The case is still before Judge Robert Hinkle, who made the original ruling finding the law unconstitutional five years ago.

Now, after discovery, Hinkle is reviewing the amended complaint that tries to deal with Moody’s limits on “facial” challenges. He starts out by reinforcing that content moderation is obviously protected by the First Amendment:

Collecting third-party speech content into a single speech product is what social-media platforms do. As the Supreme Court said, the collection “is itself expressive, and intrusion into that activity must be specially justified under the First Amendment.” Id. The defendants’ contrary assertion was rejected in NetChoice I (this court’s preliminary-injunction order), and in NetChoice II (the Eleventh Circuit’s opinion affirming that order in relevant part), and in Moody (the Supreme Court’s opinion agreeing with the Eleventh Circuit in relevant part).

Florida tried to argue that because recommendation engines try to keep users on the platform, and that decisions are made by “algorithms” that somehow changes the equation. The court points out that this is technically illiterate, because humans still set the editorial guidelines:

The defendants say platforms decide which content to show any given user primarily based on the user’s viewing habits, showing the user the content most likely to keep the user on the platform longer. Perhaps so. See Moody, 603 U.S. at 735 (“The selection and ranking is most often based on a user’s expressed interests and past activities.”). And the defendants say this decision is made by algorithms, devoid of human involvement. Not so. Humans adopt the standards and guidelines, establish algorithms that incorporate them, and keep a great deal of content off the platforms on this basis, even though, as the defendants emphasize, the remaining content is organized to a substantial extent by algorithms based on a user’s viewing habits. This record establishes without genuine dispute that the six platforms specifically addressed in the plaintiffs’ motion have standards or guidelines that have a significant role in selection and organization of content. “And because that is true, they receive First Amendment protection.” Moody, 603 U.S. at 740.

Moody reiterated this point in discussing Texas’s similar legislation. The Court said the parties treated Facebook’s News Feed and YouTube’s homepage as the heartland applications of the Texas law—much as those and other platforms’ similar features are the heartland applications of the Florida law. See id. at 744. The Court said that at least on the record then before the Court, “the editorial judgments influencing the content of those feeds” were “protected expressive activity” that Texas could not “interfere with . . . simply because it would prefer a different mix of messages.” Id. (emphasis added). The Court said “influencing,” not “fully determining.” The record now before this court makes clear that editorial judgments of the six platforms addressed in the plaintiffs’ motion at least influence the content of their feeds. The First Amendment applies.

While Justice Barrett made some technically questionable statements in a concurrence about whether AI-driven algorithms might change the equation, Judge Hinkle says that even if she were right, it wouldn’t matter here:

But the defendants are plainly incorrect when they assert, in substance if not explicitly, that the First Amendment does not apply when there is mixed curation—some driven by human editorial discretion and some by algorithms or artificial intelligence. Responding to Justice Barrett’s concurrence, the Court said this case does not deal with “feeds whose algorithms respond solely to how users act online—giving them the content they appear to want, without any regard to independent content standards.” Moody, 603 U.S. at 736 n.5 (emphasis added). The Court continued, “Like them or loathe them, the Community Standards and Community Guidelines make a wealth of user-agnostic judgments about what kinds of speech, including what viewpoints, are not worthy of promotion. And those judgments show up in Facebook’s and YouTube’s main feeds.” Id. Justice Barrett joined that footnote.

And then the key point: the First Amendment protects content moderation. Full stop.

The unmistakable upshot is this: the First Amendment applies to mixed curation. The defendants’ contrary assertion is inconsistent with Moody, the many precedents discussed in Moody, and any coherent view of the First Amendment. This does not mean platforms are not subject to government regulation, but it does mean regulation must pass appropriate First Amendment scrutiny.

The judge also finds that there are constitutional problems with how vague the law is in some areas. And, in others, finds that the law would be impossible to comply with. In discussing the law’s prohibition on “post-prioritization or shadow banning algorithms” for any posts “by or about” a candidate for office, the court finds the provision baffling — saying its plain meaning makes no sense, and that Florida’s defense of it makes even less sense:

But the provision prohibits a platform from using “post-prioritization or shadow banning algorithms” for content by or about a user known to be a candidate. “‘Post-prioritization’ means action by a social media platform to place, feature, or prioritize certain content or material ahead of, below, or in a more or less prominent position than others in a newsfeed, a feed, a view, or in search results.” Fla. Stat. § 501.2041(1)(e) (emphasis added). Unless a platform shuts down completely, compliance with this provision is literally impossible; posts can only be ahead of or below other posts, and posts can only be in a more or less prominent position than other content.

The defendants say, though, that the provision does not mean what it says— that it requires posts by or about candidates to be placed in chronological order. Perhaps Florida courts will rewrite the provision in this way, but they have not done so to this point. One doubts the Florida legislature really intended to require all candidate posts to go to the top, allowing candidates and their supporters to flood every user’s feed, rendering platforms useless, or nearly so. And if that is not what the provision means, one is at a loss to divine any plausible meaning.

Thus, the court says these provisions are likely unconstitutionally vague.

Still, NetChoice/CCIA don’t win their own summary judgment motion, in part because the court says that their amended complaint is still a “quasi-facial challenge” which runs into the same issues the original challenge faced at the Supreme Court, and because of that the court holds off on granting summary judgment, meaning the case continues to move forward to trial, even as the judge makes it pretty clear this law is a complete constitutional mess.

So this is about as good a ruling as NetChoice and CCIA could realistically hope for, given the procedural mess the Supreme Court handed down in Moody. Hinkle has made it abundantly clear that he thinks Florida’s law is a vague, unconstitutional disaster that can’t survive contact with the First Amendment. And yet, because the Supreme Court decided that “facial vs. as-applied” was the hill to die on, he can’t just say so and end it. Instead, a law that everyone — including the judge — can see is unconstitutional gets to march all the way to trial.

That’s the real legacy of Moody’s procedural punt: it didn’t save these laws, but it did make killing them slower, costlier, and more painful than it has any right to be.

We’ve been pointing out for years that the supposedly “free speech absolutist” Elon Musk is one of the most aggressive abusers of state power to create chilling effects against his critics. So it should come as little surprise to anyone paying attention, that he’s at it again: threatening to sue Rep. Ro Khanna for Khanna’s comments regarding Musk’s time running (though pretending not to run) DOGE, where Elon took great joy in killing USAID, despite having no congressional mandate to do so. At issue was the following comments from Khanna:

Khanna suggested that the Democratic Party take initiative to hold Musk accountable if they were to regain control over the House of Representatives or the Senate.

“I do believe once we take power, there needs to be accountability,” Khanna said on the “I’ve Had It” podcast. “There needs to be accountability for Elon Musk. You know, they’re celebrating that he created 4,400 millionaires, but they don’t talk about the 4.5 million children around the world who he possibly sentenced to death by dismantling USAID.”

Khanna continued, “He needs to answer for that. He needs to be subpoenaed. He needs to face investigation. He needs to answer for what he did with DOGE [Department of Government Efficiency]. It’s not just ‘let’s move on.'”

Khanna is referencing a recent Lancet report, which projects the “effects of defunding” USAID on mortality through 2030, and concluding it could lead to 4.5 million child deaths.

So, first things first, Khanna’s statement is clearly not defamatory. First, he doesn’t say that Musk killed that many people. He just says that the results of his cuts while in government should be investigated, and points to the Lancet report. And note that he says “possibly sentenced.” This is clearly him giving his opinion that an investigation should happen based on the Lancet’s analysis. Opinions based on disclosed facts are not defamatory.

Also, Elon Musk is, obviously, a public figure. And thus Musk would need to show actual malice — specifically that Khanna knows that the claims are false. But obviously, Khanna believes the Lancet’s report is worth investigating. There’s no way to prove actual malice.

But, as with so many of Musk’s SLAPP suits, any suit here wouldn’t be about winning. It would be about punishing a public official for daring to suggest that maybe — just maybe — Musk did real damage while running DOGE.

It appears that Musk is really, really sensitive to these claims and has spent days crashing out about it:

One or both of those things apparently didn’t sit right with the richest person in the universe, who responded by calling the representative an “evil liar,” a “robber,” and an “insider trader.” Then he threatened to sue Khanna, agreed that he should be arrested, and told his 240 million X followers that “Ro the Robber should be in prison!!” That all happened on Monday, but apparently sleeping on it didn’t change Musk’s feelings about the situation. On Tuesday he shared a post encouraging him to “take Ro ‘the Robber’ for every penny that he has”

He later retweeted Rand Paul’s false claim that USAID funded COVID, adding “USAID money killed millions” — a baseless assertion backed by nothing, in direct contrast to the peer-reviewed Lancet study he’s threatening to sue Khanna over.

The whole thing is ridiculously censorial — Musk is trying to get Khanna to shut up and prevent Congress from examining the actual impact of his (brief, but very eventful) leadership of DOGE. Turns out Musk doesn’t like either free speech or government transparency when it comes to his own actions.

There’s an extra layer of irony in who, exactly, Musk has chosen to go after. When Khanna was first elected to Congress a decade ago, he was Silicon Valley’s guy — backed by a massive war chest of tech billionaire money. Now those same circles are cheering Musk on to “take every penny” from him, because Khanna has since suggested the ultra-rich might pay marginally more in taxes and that Congress look into what DOGE actually did. As recently as last year, when Musk and Trump had a brief falling out, Khanna was even among those who explored whether Musk might shift his support toward Democrats — that’s how vast Musk’s gravitational pull had become over the entire ecosystem, critics included. Now that pull is being used to threaten financial ruin over a Congressional Representative citing a peer-reviewed journal.

It remains a complete travesty that there’s been no accountability, no responsibility, and no full accounting of just how much damage Musk did in his few months taking a chainsaw to large parts of the federal government, despite having zero congressional authority to do any of that.

The fact that he’s now threatening to abuse the courts to “take every penny” from Khanna for daring to suggest Congress should actually do its job and figure out what the fuck happened in the Executive Branch last year should (not for the first time) put to rest the idea that Musk has ever been a free speech supporter. He’s petty, vindictive and censorial, and not above using his extreme wealth to punish those who point out he’s an emperor with no clothes.

In Trump’s America, the First Amendment is a dead letter. If you’re seen as anti-Trump, you apparently no longer have any rights at all. We’ll get to the man who moved a box of zines and got thirty years — he wasn’t even at the protest, but the judge claimed he was aiding a “terrorist on the run” (he was not). To understand how that’s even possible, though, you first have to look at how some people who actually tried to overturn democracy were treated. Because they walked.

Just look at the treatment of the January 6th insurrectionists, who literally sought to hang the Vice President, invaded the Capitol, blocked the certification of the free and fair 2020 presidential election, and generally tried to take down the federal government. While some were convicted of their crimes and given jail sentences commensurate with their actual crimes, Donald Trump then pardoned them all and is now trying to pay them millions of dollars, claiming that it was so unfair that the government was “weaponized” against them.

Now, compare them to the Prairieland protestors, who went to the Prairieland ICE detention center in Texas last year on July 4th. It was like plenty of the angry protest gatherings we’ve seen lately: a bit rowdy, with a few individuals going too far. Some set off fireworks. Some engaged in vandalism. One person fired a gun which appears to have hit a local police officer (who was released from the hospital soon after with no lasting damage).

It seems totally reasonable for prosecutors to prosecute the actual crimes that happened: mainly the person who fired a weapon at someone, and perhaps some of the vandalism. But, instead, the federal government tried to turn this into “an antifa terror cell” engaging in “domestic terrorism.” While a small number of those arrested knew each other and had planned to show up and be disruptive, many others didn’t know those who were engaged in the planning or the vandalism. They were just there.

some of the defendants – like Batten, Elizabeth Soto and her husband, Ines Soto, were not involved in the planning, arrived separately at the protest, and left when guards at the facility asked them to do so.

The whole case was always nonsense:

“This indictment stretches far beyond a specific, violent criminal action that might have taken place,” said Rachel Levinson-Waldman, director of the Liberty and National Security Program at the Brennan Center for Justice. “It characterizes these people who put together a protest as being in an antifa cell and tars all of them with this label of domestic terrorists.”

Levinson-Waldman said the overreach threatens the civil liberties of all Americans. 

“This is not just about antifa,” she said. “Anything that somehow feels at odds with this administration’s policies could be considered domestic terrorism and will be pursued with the full force of the federal government.”

But the cases were filed in North Texas before two of the most Trumpy judges around: Mark Pittman and Reed O’Connor. As we discussed back in March, the DOJ was able to get convictions against the protestors, including the one who wasn’t even there (hold that thought… it’s coming further down). A big part of the evidence was the weapons that some of the protestors brought to the protest. But, this is Texas. You’d think that in “we love the Second Amendment, Texas” that this wouldn’t be seen as a crime, but we’re dealing with a clearly ideologically driven prosecution.

This week, some of those convicted had sentences handed down, and they are so extreme and so long that they literally seem unbelievable.

Eight activists found guilty of terrorism-related charges in connection with an attack on an immigration detention facility in Texas in which a police officer was shot were sentenced to decades in prison Tuesday. One person in the group was sentenced to 100 years in prison, federal court records show.

Benjamin Song, who shot an Alvarado Police Department officer in the neck during the July 4 incident at Prairieland Detention Center outside the Dallas-Fort Worth area, was sentenced ​to a century behind bars, according to court documents reviewed by USA Today.

Maricela Rueda, another defendant, was sentenced to 70 years in prison, records show.

Zachary Evetts, Savanna Batten, Elizabeth Soto, Autumn Hill and Meagan Morris were each sentenced to 50 years in prison….

Again, Batten and Soto had no connection to those who planned the event or who showed up with weapons or engaged in violence. And they left when guards asked them to leave. And now they’ve been sentenced to 50 years in prison. For what?

Even if we compared these sentences to the absolute longest sentence for January 6th insurrectionists, they are nowhere near as long as this. From The Guardian’s coverage of the sentencing:

The punishment for the protesters exceeds the lengthiest prison sentences given out for the attack on the Capitol on January 6. Enrique Tarrio, the leader of the Proud Boys who was convicted of seditious conspiracy, was sentenced to 22 years in prison. Stewart Rhodes, the leader of the far-right group the Oath Keepers, was sentenced to 18 years in prison.

Tarrio and Rhodes were found guilty of detailed planning to overturn a presidential election. All anyone involved in the Prairieland case did was… get mad about ICE kidnapping and kicking their neighbors out of the country, and maybe a bit of vandalism.

Song, who was sentenced to 100 years did fire his weapon and hit a law enforcement agent, meaning he was always going to face some more serious sentence, but he claims he did so because he thought the officer was going to shoot protestors. From The Guardian again:

In a statement, Song said he had fired at the police officer, Lt Thomas Gross, because Gross had his weapon drawn and Song believed he was about to shoot a protester.

“I never want to see good people, standing for what they believe in, gunned down in the street,” he said. “Now 21 people have been arrested, have been persecuted, have been punished. For knowing me or being my friend? This is wrong. This is mass punishment. Collective punishment. This is guilt by association. This is injustice.”

Even worse, Judge O’Connor (who has been one of MAGA’s favorite judges, and who has no problem making it clear that he rules on purely ideological grounds) allegedly told some of the defendants that the long sentences were necessary to make sure that leftist ideology was seen to be punished:

If you can’t see that, it’s a post from a group that is supporting the defendants (and hasn’t yet been confirmed by other reporting) saying that O’Connor said, from the bench: “the state wants to send a message to anyone who shares a similar ideology.”

If accurate, that would be incredibly damning. Judges aren’t supposed to increase sentences to stamp out ideology. That’s about as blatant a clear First Amendment violation you could imagine.

The Intercept has some other quotes from the courtroom, and while they don’t have the same ideology quote from O’Connor, the quotes they do have from him are pretty bad on their own:

O’Connor, the judge, said several times that the defendants had committed an “assault on democracy.”

“What happened here was not by any stretch of the imagination a protest,” he said during the sentencing of one defendant.

I mean… come on. January 6th was an “assault on democracy.” It was quite literally an attempt to overturn a democratic election. What happened in Texas was quite clearly a protest where a few protestors went too far. It happens at plenty of protests. It’s not an “assault on democracy” unless you’re a partisan activist. Given that we’re talking about Reed O’Connor, the claims of being a partisan activist have stuck on him for years.

Again, it’s clear that some of the defendants did break some laws, though most seemed to be minor property damage. There is zero indication of anything even remotely looking like a “terrorist” plot.

But the worst, most ridiculous case is that of Daniel “Des” Sanchez-Estrada. He wasn’t even at the protest. He was arrested for… moving some left wing zines after his wife — Maricela Rueda, one of the people just sentenced to 70 years — was arrested. Prosecutors claimed that moving a box with zines in it amounted to “corruptly concealing a document.” It sounds unbelievable, but you can read the criminal complaint against him, which really is just about him taking a box of leftist zines from his and his wife’s house (after she called him from jail) to another apartment.

He was just sentenced to 30 years in prison.

I need to repeat that. He moved a box of zines. He wasn’t at the protest.

He’s now been sentenced to THIRTY YEARS in prison.

For scale, this is in Texas, where Attorney General Ken Paxton (currently running for the US Senate) let a repeat child sex abuser plead down to one day in jail. One day for a child abuser. Thirty years for moving a box of pamphlets.

The Freedom of the Press Foundation has rightly called out how utterly unconstitutional this is:

Texas artist Daniel “Des” Sanchez Estrada was sentenced to 30 years in federal prison today for transporting a box of zines, or political pamphlets. The prosecution claimed Sanchez moved the zines so they wouldn’t incriminate his wife, who attended a protest outside the Prairieland immigration detention center near Dallas, where a police officer was wounded by gunfire.

The zines at issue may have discussed controversial political views, but they said nothing about the shooting or the Prairieland protest, and prosecutors did not allege that Sanchez’s wife, Maricela Rueda (who was sentenced to 70 years today), fired any shots or had anything to do with the shooting.

According to The Intercept, O’Connor insisted that moving the box of zines was helping a “known terrorist.”

Sanchez Estrada said he still could not understand why he was convicted.

“I am a father, I am a husband, I am a teacher, a poet — I am many things, Your Honor, but I am not a terrorist,” he told the court.

O’Connor said he disagreed with the idea that moving the box of the zines was harmless. At the time of Sanchez Estrada’s actions, Song was still on the run from police.

“What was at stake at that time was a known terrorist was on the run for shooting a police officer during a terrorist attack,” he said.

Even if Song was a “known terrorist” (he’s not), that still…. means nothing. Sanchez moved a box of zines. What the fuck does that have to do with Song being on the run? The answer is absolutely nothing.

Yes, the Trump administration has been desperately trying to drum up some sort of violent organized opposition because they need that to justify the suppression of everyone’s rights as part of their continued authoritarian project. That the Trump Justice Department and a couple of famously partisan judges played along with this travesty of a prosecution, doesn’t make it legitimate by any stretch of the imagination.

It’s just another sign that in Trump’s America those who violate the law in support of Trump get told they can do whatever crimes they want, and Trump might even get them paid, but protesting the ongoing fascism, may get you sent to prison for decades. It’s so extreme that it’s almost difficult to believe it has happened in the United States. This case will go down in history among the most ridiculous, partisan, bullshit attacks on free speech, and Judges Pittman and O’Connor will both be remembered for being the judges responsible for this travesty.