Judge To Texas: You Can’t Age-Gate The Entire Internet Without Evidence

from the first-amendment-wins-for-now dept

Wed, Dec 31st 2025 10:59am - Mike Masnick

Over the summer, the Supreme Court’s conservative majority upended decades of traditional First Amendment standards to say that Texas could put in place an age verification law if that law was intended to keep kids away from porn. As we argued at the time, the ruling had all sorts of problems, but even leaving those aside, it was still pretty clearly limited solely to situations involving age gating adult content. Not news sites. Not fitness apps. Not therapy platforms. Porn.

Texas, predictably, heard “you can age gate porn” and decided that meant “you can age gate everything.” Because why respect constitutional distinctions when you can just pretend they don’t exist?

And Texas isn’t alone in this—states across the country have been rushing to pass sweeping age verification laws for social media and other content, because ignoring the First Amendment rights of children remains a proud bipartisan tradition.

In Texas’s case, the legislature passed Senate Bill 2420, entitled the “App Store Accountability Act,” which would require age verification, parental controls, and warning labels on various app stores and apps.

A couple of lawsuits were filed to challenge the law—one from CCIA, the trade group representing a bunch of internet companies, and another from a bunch of students who pointed out that the law violated their rights. Last week, judge Robert Pitman ruled in both cases, putting the law on hold and noting that the law pretty clearly violated the First Amendment, because the law is extremely overbroad and not at all narrowly targeted:

Because strict scrutiny applies, Paxton must prove that SB 2420 is “the least restrictive means of achieving a compelling state interest.” Free Speech Coalition, 606 U.S. at 484. Paxton has not proven this. First, it is far from clear that Texas has a compelling interest in preventing minors’ access to every single category of speech restricted by SB 2420. State interests in protecting minors exist; for example, a state has a compelling interest in preventing minors from accessing information that facilitates child pornography or sexual abuse. See Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989) (“[T]here is a compelling interest in protecting the physical and psychological well-being of minors.”). On the other hand, nothing suggests Texas’s interest in preventing minors from accessing a wide variety of apps that foster protected speech (such as the Associated Press, the Wall Street Journal, Substack, or Sports Illustrated) is compelling. See Brown, 564 U.S. at 794 (“No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed.”) (internal citation omitted). While SB 2420 may have some compelling applications, the categories of speech it restricts are so exceedingly overbroad that Paxton likely cannot show a compelling state interest.

Texas tried arguing that age gating apps is no different than age restrictions on tobacco and alcohol. The court wasn’t having it—not least because Texas showed up with zero evidence that downloading apps poses health hazards comparable to cigarettes or booze. You can’t just assert “apps are like tobacco” and expect a federal judge to nod along.

Analogizing to tobacco or alcohol use, Paxton argues that Texas has an interest in regulating products and services “which pose health hazards, or which may be addictive” to minors. (Resp., Dkt. 17, at 13.) However, the State does not cite evidence to substantiate the assertion that downloading an app of any kind without parental permission poses a health hazard to minors. That argument gestures toward Texas’s interest in preventing social media addiction, but SB 2420’s coverage sweeps far wider—all apps are restricted, beyond social media, as described above. So too, SB 2420 does not limit its scope to apps that use addictive algorithms designed to encourage prolonged use, or apps that are responsible in particular for causing excessive screen time. As one example, SB 2420 restricts access to apps that seek to promote physical or mental health, such as mindfulness apps like Calm, fitness apps like Strava, or therapy providers like BetterHelp.

Read that again: In seeking to age gate everything, Texas would be age gating therapy apps. And mindfulness apps. And fitness trackers. Because apparently tracking your morning run is a clear and present danger to minors.

Of course, with strict scrutiny, you need to show that the law is narrowly tailored to a compelling government interest. Even if we assume (without evidence) the compelling government interest here, it was not “narrowly tailored.”

Even accepting that Texas has a compelling interest in requiring age-verification and parental permission to mitigate an overall mental- or physical-health effect of mobile phone app use—an interest which Texas has not offered evidence of at this stage—SB 2420 is not narrowly tailored to that interest. Rather, Texas “could have easily employed less restrictive means to accomplish its protective goals, such as by (1) incentivizing companies to offer voluntary content filters or application blockers, [and] (2) educating children and parents on the importance of using such tools.” NetChoice, LLC v. Bonta, No. 23-2969, 113 F.4th 1101, 1121 (9th Cir. Aug. 16, 2024); see also, e.g., SEAT, 765 F. Supp. 3d at 696, 698−99; CCIA, 747 F. Supp. 3d at 1036−37. In this case, one less restrictive means than SB 2420 (as the State acknowledged at the hearing) would have been to narrowly target regulations toward apps that the State demonstrates have specific addictive qualities. To the state interest of preventing minors from accessing harmful material, Texas has existing laws requiring age-verification for digital services providers containing one-third or more sexual material harmful to minors. Tex. Civ. Prac. & Rem. Code § 129B.002(a). Paxton has not shown that methods employed by SB 2420—broadly restricting app downloads and content within apps, with few content-based exceptions—are necessary to prevent minors from accessing the subset of apps which contain harmful material. Because it restricts almost all apps and content within apps, SB 2420 does not employ “the least restrictive means” to stop minors from accessing harmful material

To emphasize how not narrowly targeted the law is, the court points out how it would ban kids from all sorts of perfectly legitimate information they should have access to:

Also problematically, the law is under- and over-inclusive. That a law “is wildly underinclusive when judged against its asserted justification . . . is alone enough to defeat it.” Brown, 564 U.S. at 802. The law is under-inclusive: SB 2420 specifically cuts teenagers off from wide swaths of the critical “democratic forum[] of the Internet” even though the same content offered via apps remains available to minors via pre-downloaded apps like Safari (or in stores). Reno v. Am. C.L. Union, 521 U.S. 844, 868 (1997). The law is also over-inclusive: its attempt to block children from accessing harmful content on select apps, Texas also prohibits minors from participating in the democratic exchange of views online by curtailing their access to all apps.

Pitman reserves particular disdain for Texas’s evidence-free assertions:

So too, Texas offers no evidence that even some or most of the apps covered cause mental-or physical-health detriments for youth. Paxton gestures generally to the impacts of social media on youth, (Resp., Dkt. 28, at 15), and calls the apps at issue a “health hazard,” (id. at 13). At the hearing, Paxton suggested, too, that the interest underlying the law was mitigating the impact of excessive phone use and overall screen time, algorithmic targeting, and artificial intelligence on youth users of social media. But nothing in the record suggests, for instance, that teens suffer from mental health disorders from using a dictionary or weather app, even though those apps are age-restricted and subject to parental override under the Act in the same way as social media. Because it bans minors from downloading apps and content from all apps, not a narrowly tailored subset of apps deemed, for example, harmful or addictive based on evidence, the law is more over- and under- inclusive than HB 18, which this Court previously enjoined.

That’s a federal judge pointing out that Texas wants to age gate dictionary apps and weather apps using the same justification as social media. No evidence. No tailoring. Just vibes.

That’s not how anything works.

Of course, this is just in the district court, and Judge Pitman has been down this road before. He was the judge who initially blocked Texas’ content moderation law, which was overturned by the 5th Circuit (who was later overturned by the Supreme Court). He also blocked an earlier attempt at age verification.

Here, Texas has already announced its intent to appeal, and knowing the Fifth Circuit’s twisted views of the First Amendment (they’re not fans, unless it’s to limit private companies from moderating MAGA speech), who knows how long this particular ruling will last.

For now, we have a ruling that does what courts are supposed to do: demand that the government actually prove its case before trampling constitutional rights. Pitman’s built a detailed factual record here—one that documents Texas’s complete failure to provide evidence, identify less restrictive means, or narrowly tailor its restrictions. That matters, even if the Fifth Circuit tries to ignore it.

And the core message remains: you can’t just run into federal court screaming “but think of the children” and expect judges to hand you a blank check to age gate the entire internet.

Filed Under: 1st amendment, age gating, age verification, free speech, ken paxton, robert pitman, social media, strict scrutiny, texas

Daily Deal: Super Duolingo 1-Year Subscription For 1 User

Deals

from the good-deals-on-cool-stuff dept

Wed, Dec 31st 2025 10:54am - Daily Deal

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Filed Under: daily deal

‘Rule Of Law’ Administration Keeps Losing Cases Because It Has No Respect For The Rule Of Law

Legal Issues

from the bull-in-America's-china-shop dept

Wed, Dec 31st 2025 09:26am - Tim Cushing

America continues to be made great again. Or so says the collective of fascist buffoons currently holding federal positions of power.

The Trump administration has made a lot of noise about bringing the “rule of law” back to America — something that supposedly went missing during Biden’s term. The alleged lawlessness covers everything from rational immigration policies to whatever the fuck the word “woke” means to whatever White House mook is currently using that term in a disparaging way.

Trump’s return to office set in motion a whole lot of recklessness and lawlessness, starting with the wholesale dismissal of migrants’ constitutional rights and running all the way through several DOGE-gutted agencies until this regime reached its current nadir: straight up murdering people just because they happen to be in boats off the coast of Venezuela.

Anyone who actually respects the rule of law has either quit or been fired. They’ve been replaced by people Trump prefers, like former personal lawyers, Fox News commentators, and far-right podcasters.

We’ve already witnessed a lot of failure from the Trump DOJ, which can’t manage to secure indictments during revenge prosecutions ranging from anti-ICE protesters to high-profile names from Trump’s official enemies list, like NY Attorney General Letitia James and former FBI director James Comey. Everyone that failed upward due to their MAGA loyalty has made a mockery of half of the DOJ’s name: justice.

Fortunately, courts — for the most part — aren’t just rolling over for half-baked “unitary executive power” legal theories. As Reuters reports, the DOJ is in the midst of a historic losing streak that’s the direct result of Trump’s preference for loyalists.

As President Donald Trump’s crime crackdown got underway in Washington, D.C., in August, federal agents and police spotted a man named Torez Riley tugging at his backpack inside a Trader Joe’s store, searched it and recovered two firearms.

But federal prosecutors were forced to dismiss the charges after video surveillance revealed the search lacked probable cause and was unlawful.

In a subsequent legal opinion, a federal magistrate judge said the errors were part of a broader pattern of unprecedented prosecutorial missteps, resulting in a 21% dismissal rate of the D.C. U.S. Attorney’s office’s criminal complaints over eight weeks, compared to a mere 0.5% dismissal rate over the prior 10 years.

It used to mean that getting prosecuted meant getting fucked. Judges tended to side with prosecutors and rogue cops, rejecting only a small amount of cases that contained violations too egregious to be granted a “good faith” mulligan.

At this point, the DOJ is struggling to secure grand jury indictments, which is a little like struggling to lift a feather over your head. Most indictments are considered slam dunks because they’re entirely one-sided presentations made by prosecutors to people who are just there to pencil-whip their way through the day’s prosecutorial offerings.

But with Trump running the DOJ (and handpicking people like his former insurance lawyer, Lindsey Halligan to handle politically motivated prosecutions), the government’s fridge is now overstocked with unindicted ham sandwiches.

This is on top of literally hundreds of court rulings declaring the administration’s deportation efforts are illegal — specifically, the jailing and indefinite detainment of alleged immigration law violators who don’t pose a threat to public safety or a flight risk.

The blustering continues, however, with no sign of respite in sight. The administration apparently feels that if it goes hard enough for long enough, everything will eventually work out in its favor. Meanwhile, its band of bigots and incompetents continues to undercut its ability to perform well in court, much less convince judges that the government is acting in good faith.

The errors have sometimes undermined the department on civil and criminal matters it cares about, from the prosecutions of Trump’s political foes, to cases about immigration, violent crime, gender-affirming care and voting rights. At times, they came about after senior officials made public statements about pending cases on social media or television that strayed from the allegations made in sworn court filings, violating department rules designed to ensure a fair trial.

These mistakes are causing department attorneys to lose credibility with federal courts, with some judges quashing subpoenas, threatening criminal contempt and issuing opinions that raise questions about their conduct.

Reuters calls these “errors,” but they’re actually “failures.” The administration is very deliberate when it comes to its efforts to allow (and encourage!) Trump to rule like a king, bypassing the legislative process entirely with daily executive orders and Truth Social posts that are meant to be treated as executive orders.

Meanwhile, the DOJ is bragging that none of this — from the failure to secure indictments to the hundreds of adverse rulings it has generated since the beginning of the year — matters. Its statement to Reuters gives away the game: the administration believes (and not unreasonably!) that it has the Supreme Court in its pocket:

“This Department of Justice is winning in court on behalf of the Trump Administration and the American People with 24 successful rulings at the Supreme Court emergency docket so far and multiple prominent indictments of transnational terrorists, violent criminals, and even politicians who have allegedly engaged in corruption.”

That the Supreme Court has decided to handle most of its stuff completely off the record with its reliance on its shadow docket, it is aiding and abetting the administration’s autocracy speed run. But the DOJ can’t pretend it’s “winning.” To get “24 successful rulings” (which overstates things a bit), it first had to lose far more cases at lower levels just to get the MAGA majority of the Supreme Court to reject (or ignore) rulings against the DOJ and the administration’s routinely unlawful behavior.

We can hope that sooner or later the administration’s complete disregard for the rule of law and the US Constitution will catch up to it. But hope is only going to get us so far if the nation’s top court keeps ignoring cases that might generate precedent that works against the bigoted efforts of the administration. Maybe it will finally reach a tipping point and return the nation back to the stuff that actually made it great. Until it does, we can at least take solace in the fact that the rest of the federal court system isn’t just rolling over for Trump. It’s generating precedent almost daily.

More importantly, most federal judges no longer consider Trump’s DOJ to be a credible party in criminal cases or civil litigation. That means the government’s omnipresent threat (“your word against ours”) to people it’s trying to punish becomes less useful with each passing day. The lower courts know this government can’t be trusted. And as all of this continues, the Trump administration gives the courts more reasons to treat it as the most unreliable of narrators.

Filed Under: doj, donald trump, federal prosecutors, james comey, kash patel, lindsey halligan, mass deportations, pam bondi, rule of law, trump administration, vindictive prosecution

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Trump’s Drone Ban Is Corrupt, Protectionist Nonsense Dressed Up As A National Security Fix

(Mis)Uses of Technology

Wed, Dec 31st 2025 05:20am - Karl Bode

For years we had to listen to a bipartisan roster of lawmakers insist that TikTok was one of the greatest national security threats to ever face the nation. In reality, they were mostly just interested in protecting Facebook from a short-form video company it couldn’t out innovate. And ultimately, it was about transferring TikTok ownership and its revenues to Trump’s billionaire buddies so they can do all the stuff they’d spent years accusing China of (surveillance, propaganda).

The same nonsense is playing out again with the Trump FCC’s ban of Chinese drones, which quietly went into effect during the Christmas holiday, intentionally ensuring that a lot of people missed it.

In short, the Trump administration added Chinese drones to its Covered List, which it says are communications equipment and services “deemed to pose an unacceptable risk to the national security of the United States or the security and safety of United States persons.” Soon Americans will no longer be able to buy new drones from some of the most successful and popular companies in the space, like DJI.

The Trump fact sheet explains it this way:

“UAS [unmanned aircraft systems] and UAS critical components, including data transmission devices, communications systems, flight controllers, ground control stations, controllers, navigation systems, batteries, smart batteries, and motors produced in a foreign country could enable persistent surveillance, data exfiltration, and destructive operations over US territory, including over World Cup and Olympic venues and other mass gathering events.”

To be clear, you can continue to use DJI drones you already own. And you can buy DJI drones currently approved by the FCC already for sale. But you soon won’t be able to buy new versions of these drones as they’re released. Which is a shame because DJI generally leads the drone field with a 70 percent market share and their drones are very good, very popular, and less expensive than U.S. alternatives.

The ban was imposed with zero transparency after “an Executive Branch interagency body with appropriate national security expertise that was convened by the White House.” Which is gibberish when you consider the Trump administration is stacked to the rafters with odd zealots and unqualified weirdos who are basically just propping up a wide assortment of shady grifts.

DJI urged lawmakers to conduct audits of its devices for years, and was ignored. The normal comment period for public input was ignored. Folks in the aerospace industry say they were neither consulted, nor given any advance notice of the quick ban. Drone and RC hobbyist organizations are annoyed and dismayed, and state the ban was shadow dropped during Christmas to lessen scrutiny.

You’re supposed to believe this is about protecting Americans from nefarious Chinese drone surveillance. In reality, this is about protecting U.S. drone manufacturers from having to compete with better, more popular technology. But because it’s so easy to get xenophobic lawmakers and our lazy press so ginned up about China, that truth gets buried in news reports and the policy weeds.

I’ll just randomly note here that Donald Trump’s son, Donald Trump Jr., coincidentally owns stock in and advises several aspiring drone startups that have received billions in loans and subsidies from the Pentagon. That’s before you get to the countless other MAGA orbit folks and tech companies with personal investment in military drone and surveillance hardware.

I think in their heads guys like Junior probably think they’re cleverly building functional, domestic alternatives to Chinese tech, but their corruption and incompetence generally blinds them from reality and our broader failures on privacy and national security.

Truly shoring up national security and U.S. privacy requires standing up to domestic corporations first and foremost (with say, data broker regulation and a privacy law that holds execs personally accountable for lax security), which none of them want to actually do. Because in their heads, government should only exist to make them personally richer at other peoples’ expense.

As with the “TikTok ban,” the drone ban is being applied in a country that’s too corrupt to functionally regulate privacy and security. Congress is too corrupt to pass even a baseline internet-privacy law or regulate data brokers, which routinely hoover up endless troves of sensitive American data and then sell access to that surveillance data to any random nitwit, including foreign intelligence.

While the Trump administration professes to be super worried about Chinese threats to national security, with its other hand it has gutted government cybersecurity programs (including a board investigating the biggest Chinese hack of U.S. telecom networks in history), dismantled the Cyber Safety Review Board (CSRB) (responsible for investigating significant cybersecurity incidents), and fired oodles of folks doing essential work at the Cybersecurity and Infrastructure Security Agency (CISA).

FCC boss Brendan Carr is also engaged in a massive effort to destroy whatever is left of the FCC’s consumer protection and corporate oversight authority, despite the fact that the recent historic Chinese Salt Typhoon hack (caused in large part because major telecoms were too incompetent to change default administrative passwords) was a direct byproduct of this exact type of mindless deregulation.

In addition to rolling back oversight of U.S. telecoms and they’re lax security, Carr has been stalling programs designed to bring better security and privacy standards to the internet of things space, which is dominated by Chinese companies with few if any security and privacy standards.

Superficially the Trump administration loves putting on a veneer that it’s protecting U.S. interests and national security, but as we’ve seen elsewhere this is hollow cack. Trumpism is just pay-to-play kakistocracy and a bottomless well of assorted lazy hustles and grifts. These are not serious people.

Some U.S. drone makers asked daddy to protect them from global market competition and he did. Now U.S. consumers have to pay twice as much money for much shittier technology, and instead of translating the proceeds into new jobs, better tech, or lower prices, the executives at the companies responsible will simply pocket the proceeds. All while the New York Times and large corporate media blows smoke up your ass about this being good for national security and American labor.

Filed Under: china, donald trump, donald trump jr., drone ban, drones, national security
Companies: dji

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2025 Measles Cases In America Surpass The 2,000 Mark

Failures

from the failure dept

Tue, Dec 30th 2025 08:01pm - Timothy Geigner

This administration is in the midst of failing the American people in so many ways, of course, but if you need one stark example of that failure then you can find it in measles. When I wrote this post way back in March of this year, it was our first Techdirt post done on the disease in over 11 years. In other words, this is how it started:

And from there we were off and running. It took roughly a month for us and many others to begin warning what would be inevitable if RFK Jr. wasn’t axed from his role as Secretary of Health and Human Services. A virulent anti-vaxxer leading the charge on a measles outbreak was always going to result in a lackluster response at best, but the real embarrassment would come in the form of America losing its measles elimination status. That status was hard won in 2000 via a concentrated and government led vaccination campaign beginning in the late 70s and early 80s. 12 months of continuous spread from connected outbreaks loses us elimination status and we began predicting this would happen eight months ago.

So that’s how it started. How are we looking at present? We now sit at 2,012 confirmed cases of measles in America for 2025. And those numbers are both incomplete for the year and almost certainly significantly underreported. Add to that the fact that we are enduring current outbreaks in multiple states and we are set up for a banger of a 2026.

Measles cases nationwide have reached 2,012, the Centers for Disease Control and Prevention (CDC) reported last week, as outbreaks in Arizona and South Carolina continue to grow and three other states alert the public about airport exposures.

The US total reflects 54 new cases, as the country teeters on the brink of losing its measles elimination status—which it earned in 2000—next month. This year’s total is the nation’s highest since 1992, when officials reported 2,200 cases. Coordinated vaccination efforts led to a precipitous drop in cases in the ensuing decades, but vaccine skepticism in recent years has spawned the disease’s resurgence.

In those numbers are 3 deaths, including two children, and 227 hospitalizations. More frightening is that, while 93% of infections have occurred among the unvaccinated, 7% have not, including 4% that had two MMR vaccine doses. That sure sounds like we’re experiencing an increase of breakthrough infections, which itself is an indication that we are losing herd immunity protections.

So it’s not really a question of if we’re going to lose the measles elimination status. The game is already over, we’re just waiting for the clock to run out. The real question is whether that embarrassment is going to spur anyone in positions of power to do anything about it. And the only real thing to do here is get RFK Jr. the hell out of his cabinet secretary role.

Filed Under: epidemic, health and human services, measles, rfk jr.

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Court To Trump: Just Chanting ‘Alien Enemies Act’ Doesn’t Make Due Process Rights Disappear

Legal Issues

from the still-got-some-America-left-in-us dept

Tue, Dec 30th 2025 03:35pm - Tim Cushing

Nothing this administration does is subtle. Nothing about its anti-migrant purge has been anything less than brutish. As if to drive the point home that the bigots were running the shop, Donald Trump invoked the Alien Enemies Act to justify the stripping of due process from people whose only crime was usually just a civil infraction: being undocumented. Anyone who knows the history of that Act knows it was last used for the same purpose: to round up a bunch of non-white people and imprison/deport them.

As fast as it could, the administration rounded up anyone that looked Latino, tossed them on airplanes, and sent them to whatever country would take them. For more than 100 deportees, the final destination was El Salvador’s infamous CECOT prison, known mainly for its inhumane abuse of anyone unfortunate enough to end up there.

Judge James Boasberg has seen plenty from this administration already. He’s the judge who was received one of the first fuck you’s from the Trump anti-migrant machinery. The administration blew off his order to stop sending migrants to El Salvador, pretending it couldn’t do anything about the flights it had hurriedly sent airborne the moment it seemed Boasberg might issue an injunction.

Boasberg continues to thwart the administration’s unlawful actions. And because he’s chosen to do his job (rather than slip himself into Trump’s pocket like too many members of the Supreme Court), he’s been targeted personally by the administration. Earlier this year, Trump’s team filed a completely bogus misconduct complaint against him because he expressed very legitimate concerns about the current administration during a US court system judicial conference: that there was far more than a non-zero chance Trump’s administration would simply refuse to comply with court orders.

It wasn’t just a legitimate concern. This has actually happened more than once. Judge Boasberg has personal experience with the administration’s refusal to comply with the letter and/or spirit of his court orders.

Here’s another ruling the administration will probably choose to ignore if it can’t get SCOTUS to slide it a mash note under the table during the next shadow docket drop.

A federal judge on Monday said the U.S. government denied due process to the Venezuelan men it deported to a prison in El Salvador in March after President Trump invoked the Alien Enemies Act.

[…]

Chief Judge James Boasberg of the U.S. District Court for the District of Columbia in his order agreed that they deserved the right to a hearing — whether by bringing them back to the U.S. or allowing them to pursue legal remedies from abroad.

“On the merits, the Court concludes that this class was denied their due-process rights and will thus require the Government to facilitate their ability to obtain such hearing. Our law requires no less,” Boasberg wrote in his opinion.

Lest we forget (as the Trump administration definitely wants you to), this is how this all began. I quote directly from the ruling [PDF] because this document ensures the government can’t claim ignorance of its own bullshit as this case continues to move forward:

These men were given “no advance notice of the basis for their removal,” nor were they informed that they could challenge their designation. The only reason that this Court was made aware of these impending removals was because a few of the men moved to El Valle had been able to contact their lawyers the day before, who rightly surmised that such a Proclamation either had secretly issued or was about to issue and thus filed this action at 1:12 a.m. on March 15. The Court granted the five named Plaintiffs’ request for a temporary restraining order that same morning, which enjoined their removal, and it scheduled an emergency hearing for 5:00 p.m. that day to consider the Motion to Certify a Class.

Just an hour before the hearing, the Proclamation was made public. Less than two hours after the Proclamation was published, and while the emergency hearing was ongoing, the Government flew 252 Venezuelan men, including 137 putative class members, out of the United States.

The Trump administration thought if it violated due process rights fast enough, no one would be able to do anything but offer up a resigned shrug. Boasberg has refused to do this. He saw this happening and moved on it. The administration efforts to stay ahead of easily foreseeable adverse rulings may now result in a lot of deportations being undone.

As for the government’s last-ditch argument that the Court has no jurisdiction because the hastily deported people are no longer in the custody of US federal officers, the court has this to say:

In a statement to the U.N. Office, El Salvador expressly disclaimed responsibility for the detainees, contending instead that “the jurisdiction and legal responsibility for these persons l[ay] exclusively with the competent foreign authorities.”

So, it’s no use pretending the people denied their due process rights are still not under the control of the United States government. On top of that, there’s plenty of documentation on the public record that shows the Trump administration not only asked El Salvador’s government to accept whatever people it chose to dump into CECOT, but paid it nearly $50 million to offset whatever expenses El Salvador might rack up while violating the human rights of Trump’s deportees.

And the invocation of the Alien Enemies Act doesn’t change anything. Only under very narrow circumstances can due process rights be nullified. None of that is happening here. To pretend the government’s vague assertions about foreign powers and threats to national security are all that’s needed to negate the constitutional rights extended to anyone who happens to reside in this country, no matter how temporarily.

The remedy must thus adapt to meet the injury that has occurred. The Court finds that the only remedy that would give effect to its granting of Plaintiffs’ Motion would be to order the Government to undo the effects of their unlawful removal by facilitating a meaningful opportunity to contest their designation and the Proclamation’s validity. Otherwise, a finding of unlawful removal would be meaningless for Plaintiffs, who have already been sent back to Venezuela against their wishes and without due process. Expedited removal cannot be allowed to render this relief toothless. If secretly spiriting individuals to another country were enough to neuter the Great Writ, then “the Government could snatch anyone off the street, turn him over to a foreign country, and then effectively foreclose any corrective course of action.”

Those are the words of someone who not only knows the law, but respects it. These are words of the Trump administration:

“Once again Judge Boasberg issued an order that has no basis in law and undermines national security,” Abigail Jackson, a White House spokeswoman, said in a statement to NPR.

Amazing. This death cult of an administration is also a murder cult and kidnapping cult. National security interests can still be served while respecting due process rights. It’s not either/or, no matter how many people we murder in international waters. But this initial statement makes it clear the administration will do everything it can to continue violating these rights, no matter what the courts say about the issue.

Filed Under: alien enemies act, cecot, dhs, doj, due process, james boasberg, mass deportation, rights violations, trump administration

Judge Says Trump Can’t Strip Lawyer’s Security Clearance Just Because He Doesn’t Like His Clients

Legal Issues

from the because-of-course-you-can't dept

Tue, Dec 30th 2025 01:07pm - Tim Cushing

Donald Trump has an enemies list. Not a secret one, either. It’s actually been published at the official White House website. But he has plenty of enemies beyond that. And ever since his return to office, he’s been engaged in acts of vengeance. Federal agencies have been purged of anyone who isn’t a MAGA loyalist. Journalistic entities have been threatened, sued, and — most recently — been placed under the “leadership” of people who serve Donald Trump, rather than their actual employers or the journalistic standards they’re supposed to uphold.

He’s also gone after a number of law firms who’ve represented people suing Trump and the administration. He’s also targeted lawyers who represent people he personally doesn’t care for, like the FBI agents who investigated the January 6, 2021 insurrection attempt by his supporters.

Mark Zaid has represented a number of clients, including national security whistleblowers during the Obama years. In contrast to Trump’s opportunistic thuggery, Zaid doesn’t have a political ax to grind when he chooses to represent someone in court. All Trump has is political axes in need of grinding. Since he can’t fire Zaid directly, he’s doing what he can to make it more difficult for him (and others on the president’s neverending shitlist) to represent current and former government employees.

Eisen and Zaid, the lawyers representing the FBI agents, themselves became the target of a presidential memorandum in March that revoked their access to classified material. Both have aggravated Trump for years. Zaid represented a whistleblower who helped bring about Trump’s first impeachment.

Zaid sued to restore his security clearance in May, in a case that is ongoing. His lawyer, Abbe Lowell, is a high-profile defense attorney who left Winston this spring in order to form his own firm. Lowell said his goal is to represent those “unlawfully and inappropriately targeted.” New York Attorney General Letitia James, who won a fraud judgment against Trump and is now a target of his DOJ, was one of his first clients.

Fortunately for Zaid, he’s one step closer to getting his security clearance restored. DC federal court judge Amir Ali says [PDF] what’s immediately obvious: the president can’t just revoke security clearances simply because he doesn’t like a lawyer’s clientele. That’s a violation of First Amendment rights and that still doesn’t fly here in the US, despite Trump’s continuous efforts to make every right dependent on loyalty to the president.

It’s so obviously a violation of rights that even the government doesn’t try to rebut Zaid’s main argument. Instead, it tries to argue that the president is pretty much a king and can do whatever he wants when it comes to determining who gets to do what in this nation:

This case involves the government’s retribution against a lawyer because he represented whistleblowers and other clients who complained about the government, carried out by summarily canceling the attorney’s security clearance without any of the process that is afforded to others. In defending its actions, the government does not meaningfully rebut that the decision to deny this attorney the usual process was based on his prior legal work for clients adverse to the government.

The government instead asserts, emphasizes, and repeats that the executive branch has exclusive power to determine who meets the requirements for security clearance. […] That is well established, but does not answer the question in this case. It is equally well established that the executive branch’s exclusive power to determine who satisfies the eligibility criteria for security clearance does not mean it can conduct that determination however it wants and free from the Constitution’s limits.

If you need more evidence that this is nothing more than blatantly unconstitutional vindictiveness, you’ll find it in Judge Ali’s 39-page opinion. Zaid, who has held a security clearance for the last two decades, first angered Trump in 2019, bringing forward a whistleblower complaint that led to the House filing articles of impeachment. Here’s how Trump reacted to that:

When Zaid’s representation of the whistleblower became public, the President publicly rebuked him, including by showing Zaid’s photo at a 2019 rally and calling him a “sleazeball.” The President later said: “And [the whistleblower’s] lawyer, who said the worst things possibly two years ago, he should be sued and maybe for treason. Maybe for treason, but he should be sued. His lawyer is a disgrace.”

Here’s how things were going earlier this year, when Zaid again crossed Trump’s angry radar:

More recently, in February 2025, Zaid filed a lawsuit against the government on behalf of several Federal Bureau of Investigation employees to protect them from being targeted for work they did investigating the January 6 attack on the U.S. Capitol. Four days later, a news source reported the President was planning to target Zaid, among others, by revoking his security clearance. The next month, the Director of National Intelligence announced on social media that she had revoked Zaid’s and others’ security clearances and access to classified information. And on March 22, 2025, the President issued a presidential memorandum to executive agency heads that included Zaid among a list of people for whom access to classified information was “no longer in the national interest.”

The government insisted the administration has the unilateral right to revoke clearances. The court agrees… to a point. But when clearances are revoked (or even denied), there’s a process involved that allows the person on the receiving end of this clearance stripping to appeal or challenge that decision. At the very least, they’re allowed to ask why. This summary stripping of security clearance from multiple lawyers at one time is obviously a rights violation (due process) that compounds the other alleged rights violation (free speech).

Based on the preliminary injunction record, the court finds the government has not conducted any individualized assessment of Zaid’s eligibility for security clearance. It instead denied Zaid the process and individualized assessment afforded to others because of his prior representation of whistleblowers and other clients in matters that were adverse to the government.

[…]

Because Zaid’s claims all challenge the legality of revoking his security clearance without meaningful process, they go only to the “methods used” to revoke his clearance.

The government pretends this is simply about denying access, which it can do. But it isn’t. It’s about selectively removing access, which isn’t really about the security clearance process, but whether or not the government can use the process to engage in retaliatory action against people it doesn’t care for.

So it tried this:

As mentioned, the government’s principal approach here has been to offer an expansive reading of the cases it likes (Egan and Lee) and to leave out the cases it doesn’t (Greenberg and Rattigan).

And ends up with this after Judge Ali parses the cited cases the government really wishes he wouldn’t have read so closely:

[E]ven the cases the government selectively quotes from recognize the line between “ends and means.

Furthermore, the court practically invites every other lawyer named in the White House memo to get busy suing over their stripped clearances:

The government, second, asks the court to just construe the presidential memorandum as an individualized national security assessment. But the court finds the memorandum was not based on any such assessment. It is undisputed that no government agency conducted an assessment of Zaid’s eligibility for clearance, and the memorandum itself does not purport to make any national security assessment—in fact, it does not mention national security at all. The memorandum instead directs agencies to summarily revoke Zaid’s clearance based on the “national interest,” which courts have consistently recognized as distinct from and more nebulous than a particular determination about national security.

Zaid wins, for now. The government has until December 30 to challenge the injunction. If it can’t raise a better argument than it has here (and there’s no reason to believe it can), Zaid’s clearance will be un-revoked on January 13, 2026. And the others who were targeted by the White House memo need to lawyer up and get their clearances back too. Certainly, the administration will try to get the Supreme Court to undo this, but for now, the clock is ticking.

Filed Under: 1st amendment, donald trump, fbi, january 6, lawfare, mark zaid, retaliation, trump administration, whistleblowers

You Shouldn’t Have To Hate Your News Source To Support It

Techdirt

from the support-techdirt dept

Tue, Dec 30th 2025 10:49am - Mike Masnick

Last week, I pointed out that part of the reason for running our current fundraiser (donate $100 or more and you’ll get our first commemorative challenge coin) is to show that it is possible to have a successful media business model that doesn’t involve annoying its community into paying.

Apparently that struck a nerve. A (actually very good) journalist for a billionaire-owned news org complained, suggesting that it was unfair of me to call out other media organizations for choosing to annoy people for money. Which billionaire? Does it matter? The list is long enough that you could throw a dart.

The crux of the argument seemed to be that there just aren’t that many ways for news orgs (billionaire-owned or not) to make money these days, and thus I shouldn’t call out those who have chosen an “annoy people until they pay” method.

I disagree.

One of the very earliest areas of coverage on Techdirt was about the changing music industry, and how the record labels’ Napster-era strategy of disrespecting music’s biggest fans by accusing them of all being thieves was not in their long-term best interests. Rather, working on finding a better business model that enabled fans to enjoy more music would be the better, more sustainable strategy. Today I would argue that I was correct.

I think the same is true in the news business. Insisting that the only way that a news org can make money is to be actively hostile to your readers/watchers/listeners strikes me as unsustainable and going down the wrong road.

Tragically, one thing that we’re seeing is that the news orgs with the least community-hostile approach tend to be right wing MAGA shitpost factories. They’re running on dark money or extracting cash from the perpetually credulous, but either way they’ve figured out that not actively pissing off your audience creates loyalty. It’s a depressing lesson in how the worst actors sometimes understand community dynamics better than legacy institutions.

But it would be nice if we could show the world a better way. That you can have a publication that does, in fact, respect its community. That doesn’t want to annoy you into paying. That doesn’t want to only make its content shareable if you have a subscription or if you first give up all sorts of private data about yourself.

And that’s where you come in. While Techdirt will accept donations year-round, if you want to get one of these cool new commemorative challenge coins, you have until Monday, January 5th, to make your donation. On Tuesday we’ll be submitting our order of how many coins get minted, so we’re down to our final week if you want in.

Help show the world that a good, thoughtful news site can be reader supported, but without having to use tactics that disrespect its community to do so.

Filed Under: business models, journalism, support
Companies: techdirt

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