Fifth Circuit Continues Running The Table, Says Ten Commandments Law In Texas Is Constitutional

from the playing-favorites-with-religions dept

In June 2025, the Fifth Circuit Appeals Court upheld what would seem to have been an extremely obvious conclusion reached by the federal court handling the case: yes, it definitely violates the Constitution to mandate the posting of a religious text in every classroom in Louisiana. This wasn’t about displaying an assortment of “foundational texts” as its defenders (disingenuously) claimed: It was about pushing their preferred religion on students by any means possible.

Last June, the Fifth Circuit exposed the hypocrisy of the mandate while upholding the lower court’s injunction blocking its enactment:

It is also unclear how H.B. 71 ensures that students in Louisiana public schools “understand and appreciate the foundational documents of [its] state and national government” when it makes displaying those “foundational” documents optional, and does not require that they also be printed in a large, easily readable font. La. R.S. § 17:2124(A)(9). When the Ten Commandments must be posted prominently and legibly, while the other “contextual” materials need not be visible at all, the disparity lays bare the pretext.

If only that had been the end of the story. Presumably, enough Fifth Circuit judges preferred to reach a different conclusion that the appellate court decided to take another look at it using its full slate of judges. Since this is the Fifth Circuit we’re talking about, you already know how that turned out.

This time, the majority pretended it was simply impossible to tell if this Louisiana law actually violated the Constitution. The only way to be sure was to let the state enact it first and allow the courts to deal with any rights violations after they’ve occurred. The injunction was lifted, with the majority claiming Supreme Court precedent (that hasn’t actually been overturned by the Supreme Court) is no longer valid when it comes to discussing possible Establishment Clause violations.

That same argument — that the three-prong test created by the Supreme Court in 1971’s Lemon v. Kurtzman, which dealt with another set of church/state separation issues. This is the test:

• The “Purpose Prong”: The statute must have a secular legislative purpose.
• The “Effect Prong”: The principal or primary effect of the statute must neither advance nor inhibit religion.
• The “Entanglement Prong”: The statute must not result in an “excessive government entanglement” with religion.

While a handful of judges (you can guess which ones) have opined that the “Lemon test” is dead, having been “abrogated” by more recent decisions, the Supreme Court has never issued a ruling overturning it. In fact, elements of the test were still being applied more than 30 years later.

Nonetheless, the Fifth Circuit — as it did earlier this year during its en banc review of the Louisiana law — says Lemon is dead [PDF] and, therefore, pretty much any law requiring the posting of the Ten Commandments in classrooms doesn’t violate the Constitution.

We conclude the Texas law does not violate either the Establishment Clause or the Free Exercise Clause. Here is a summary of our reasons.

First, the Establishment Clause. Plaintiffs primarily claim we are bound by Stone v. Graham, 449 U.S. 39 (1980) (per curiam), which invalidated a similar Kentucky law decades ago. We disagree. Stone applied an analysis—the “Lemon test”—which confounded courts for decades. See Lemon v. Kurtzman, 403 U.S. 602 (1971). Mercifully, the Supreme Court jettisoned Lemon and its offspring some years ago. See Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 534 (2022) (recognizing the Court has “abandoned Lemon”). With Lemon extracted, there is nothing left of Stone.

After deciding Lemon (and Stone) no longer applies, the majority moves on to say even if it did, there would be no constitutional violation because:

No child is made to recite the Commandments, believe them, or affirm their divine origin…

While it is true that the law makes no demands of teachers or students to do anything more than be in the same room as a Ten Commandments poster that “must be visible” to all students from up to 16 feet away, it’s quite obvious that this law is crafted to sneak a bit of the state’s preferred religion (at least in terms of those writing, supporting, and defending this law) past the protections of the Constitution.

It’s obvious from the statements they made while pushing this bill through the legislature. And it’s just as obvious now that the law has been given a free pass by the Fifth Circuit Appeals Court.

Texas Attorney General Ken Paxton, a Republican, called the ruling “a major victory for Texas and our moral values.”

“The Ten Commandments have had a profound impact on our nation, and it’s important that students learn from them every single day,” he said.

Pretty bold to use the royal “our” to mandate a specific set of moral values be posted prominently in taxpayer-funded public schools. It’s even bolder when it directly contradicts the desires of prominent members of this particular religious community — something that was pointed out by the dissenting judges in Fifth Circuit’s ruling on the Louisiana Ten Commandments law:

Indeed, every faith-based organization before us—on behalf of thousands of members—and every clergy and devout plaintiff agree that Louisiana must not pick and post specific scripture that the state commands will confront children in state classrooms. All religious voices submitted to us, barring one individual, oppose Louisiana’s attempt to select, inculcate, and enforce this version of gospel text in compulsory public education.

The people with power are pushing religion on kids against the wishes of the clergy and “devout plaintiffs.”

There’s a dissent attached to this ruling as well. This one tackles the Fifth Circuit majority’s decision to rely twice on its presumption that Lemon is dead law to hand Bible-thumping legislators wins in two states:

In Van Orden, despite applying a historical approach instead of Lemon, the plurality cited Stone as a “limit[] to the display of religious messages or symbols” and “an example” of the Court’s “vigilan[ce] in monitoring compliance with the Establishment Clause in . . . schools.” “The placement of the Ten Commandments monument on the Texas State Capitol grounds,” Van Orden explained, is “a far more passive use of those texts than was the case in Stone.” […] This is because “[t]he display [was] not on the grounds of a public school, where, given the impressionability of the young, government must exercise particular care in separating church and state.” Id. at 703 (Breyer, J., concurring in the judgment) (citing Lee v. Weisman, 505 U.S. 577, 592 (1992); Stone, 449 U.S. 39). And, unlike in Van Orden, “the text” of the Ten Commandments in Stone “confronted elementary school students every day.”

Van Orden recognized Stone’s viability, notwithstanding Lemon, given the special “concerns that arise in the context of public elementary and secondary schools.”

The Fifth Circuit majority — like the defendants whose unconstitutional law it has allowed to be enacted — cherry picks from post-Lemon Supreme Court jurisprudence to arrive at the conclusion it wants, rather than one the Constitution (and actual Supreme Court precedent) dictates. With two of the three states in the circuit already have been given a green light to mix church and state, it’s up to Mississippi to get this bill signed by the governor so the Fifth can complete its three-state sweep of the Establishment Clause.

Filed Under: 10 commandments, 1st amendment, 5th circuit, establishment clause

Arkansas Tried To Pass An Unconstitutional Social Media Law. Again. It Lost. Again.

from the maybe-read-your-laws-before-passing-them dept

Back in 2023, Arkansas passed a social media age verification law so poorly drafted that the bill’s own sponsor couldn’t accurately describe who it covered. The law appeared to exempt TikTok, Snapchat, and YouTube while the sponsor publicly claimed those were the exact platforms being targeted. When the state’s own expert witness testified that Snapchat was covered, the state’s own attorney disagreed with his own witness in the same hearing. That law was struck down on First Amendment and vagueness grounds, and then permanently enjoined earlier this year in a suit brought by the trade group NetChoice.

So Arkansas went back to the drawing board and passed Act 900, which was supposed to fix all the problems with the original. Judge Timothy Brooks of the Western District of Arkansas has now preliminarily enjoined that law too, in a ruling that reads like a patient teacher explaining to a student why the homework still doesn’t work despite a rewrite.

The legislature did manage to fix the content-based definition problem that sank the first law, but the progress stops there. Act 900 imposes four main new requirements on social media platforms: a prohibition on “addictive practices,” default settings for minors (including a nighttime notification blackout), privacy default settings at the most protective level, and a parental dashboard requirement. Every single one of these provisions fell apart on review, each in its own special way.

The “addictive practices” provision might be the most impressively broken. Here’s what it actually says platforms must do:

Consistent with contemporary understanding of addiction, compulsory behavior, and child cognitive development, ensure that the social media platform does not engage in practices to evoke any addiction or compulsive behaviors in an Arkansas user who is a minor, including without limitation through notifications, recommended content, artificial sense of accomplishment, or engagement with online bots that appear human.

“Contemporary understanding of addiction” is doing a lot of work here, and it’s not up to the job. There is no consensus that social media constitutes addiction in any clinical sense. So it’s entirely unclear what a company would need to do here, which is fatal in a First Amendment context. And yet, the law is designed such that violations are strict liability and ridiculously broad. A plain reading of the law shows that it is not limited to addiction to the platform itself; a platform can apparently be held liable if its practices “evoke” addiction to off-platform activities. And the statute uses the singular “user,” meaning a single child’s response triggers liability.

As the court puts it:

Not only does Act 900 impose liability based on a single child’s response to the platform, it does so on a strict liability basis—a platform is liable for a practice the evokes addiction in a single child even if it could not have known through the exercise of reasonable care that the practice would have such an effect. “Businesses of ordinary intelligence cannot reliably determine what compliance requires.”

The state, realizing belatedly that it had written an unworkable law, asked the court to just sort of ignore the strict liability language and read in a specific intent requirement that doesn’t exist anywhere in the text. As the judge notes, that’s not how any of this works. The courts interpret the law as written and are not there to fix the legislature’s mistakes:

Instead of defending the statute the General Assembly enacted, Defendants ask the Court to rewrite it by ignoring the strict liability provision altogether and inserting a specific intent requirement that appears nowhere in the text. The Court cannot do so.

Then there’s the default provisions. The court was actually somewhat sympathetic to the idea that the state has a legitimate interest in helping kids sleep. The problem is that the law itself undermines that interest by letting parents flip the nighttime notification blackout off. And the government is not there to fix what parents refuse to do:

While Defendants justify the notification default as an aid to parental authority, they ignore their own evidence that parents are part of the problem. If parents wanted to prevent their children’s sleep from being disrupted by late-night notifications, they have a readily available, free, no-tech solution already at their disposal: taking devices away at night. Yet “86% of adolescents sleep with their phone in the bedroom.” …. The State has provided no evidence that parents lack the tools to assert their authority in this domain, so it appears unlikely that the State’s deferential approach to restricting nighttime notifications will actually serve its stated interest in ensuring minors get enough sleep. This “is not how one addresses a serious social problem.”

The privacy default is worse. It requires platforms to set privacy controls to their most restrictive level for minors — but says nothing about who can change them. Meaning, as the court notes, the minor can just… change them. The state argued this was necessary to protect children from sexual exploitation online. The court points out the obvious problem:

On the other hand, because the default can be changed by the minor, this provision is also wildly underinclusive. Defendants say children need this law to protect them from sexual exploitation online. But the law, in effect, allows children to decide whether they need protection from sexual exploitation online because they are free to depart from the protective default. As Defendants’ evidence shows, teenagers’ developing brains make them less likely than adults to appreciate the risks associated with, for example, making their profiles public… Like the notification default, while the burdens imposed by the privacy default may be slight, they do not appear likely to serve the State’s asserted interest at all. Imposing small burdens on vast quantities of speech for no appreciable benefit is not consistent with the First Amendment. Arkansas cannot sentence speech on the internet to death by a thousand cuts.

Any law that burdens First Amendment speech has to be tailored precisely to a compelling goal. And if it’s either under or over-inclusive, it’s going to have problems surviving. Making it such that kids could just turn off the privacy controls fails that test.

But the dashboard provision is where things get genuinely hilarious, in that dark way where you wonder if anyone read the bill before voting on it. Act 900 has three separate definitions for people who interact with platforms: “account holders,” “users,” and “Arkansas users.” The problem is that, according to the statute’s own definitions, a “user” is specifically someone who is not an account holder — in other words, just a visitor to the site who doesn’t have an account. Yes, it’s confusing. The court is confused. Everyone is confused.

Act 900 has one particularly noteworthy problem: “users.” Act 900 has three different definitions for relationships a person can have with a platform. First, an “account holder” is “an individual who primarily uses, manages, or otherwise controls an account or a profile to use a social media platform.” Id. sec. 1, § 4-88-1401(1). “Account holder” is not used in any of the Act’s operative provisions. Second, a “user” is “a person who has access to view all or some of the posts and content on a social media platform but is not an account holder.” Id. § 1401(12). Third, an “Arkansas user” is “an individual who is a resident of the State of Arkansas and who accesses or attempts to access a social media platform while present in this state.” Id. § 1401(2). “Arkansas users” include both “account holders” and “users,” but “users” are definitionally not “account holders.” The addictive practices provision and the default provisions therefore apply to all Arkansas minors, whether they have a social media account or are merely a website visitor. Worse, the dashboard provision applies only to minor “users,” not account holders.

Again: the dashboard provision requires platforms to build parental supervision tools for minor “users.”

Not account holders. Users. Which, as the court notes, definitionally does not include “account holders.” Meaning it only applies to… random anonymous visitors to the website. Those who have accounts… apparently aren’t covered?

As the court explains, taking the statute at its word would require platforms to:

(1) collect age information from everyone who visits a covered platform to identify minors; and (2) collect and store identity information for every minor who visits a platform to track their “use habits,” connect them with their parents, and effectuate “tools for a parent to restrict his or her minor child’s access.”

This is a law that claims to be about children’s privacy that accidentally requires mass surveillance and identity collection on every anonymous visitor to a website, just in case one of them turns out to be an Arkansas minor. The court openly “questions whether this was the General Assembly’s intended result” but notes it can’t just rewrite the statute because the legislature picked the wrong word. That’s on them. Just like the earlier provision that the state asked the court to quietly rewrite.

The Arkansas legislature does not appear to be a detail-oriented body.

Oh, and there’s also an audit requirement directing platforms to conduct quarterly audits to ensure their products aren’t “causing minors to engage in compulsory or addiction-driven behavior” — again, including off-platform behavior, apparently. How a platform is supposed to audit for behaviors that happen when users aren’t on the platform is left as an exercise for the reader.

What makes this all so maddening is that none of these problems are subtle. The “user” vs. “account holder” mixup is the kind of thing that any lawyer should catch on a close read. The strict liability plus singular “user” combination in the addictive practices provision is exactly the drafting error that made the 2023 law fail. The defaults that can be changed by the very minor they’re supposed to protect — that’s not a hard problem to spot.

There is a reason this pattern keeps repeating.

Passing an unconstitutional law to “protect the kids” from Big Tech generates headlines, press conferences, and signing ceremonies. Governor Sarah Huckabee Sanders got to tweet about how “social media companies have gotten away with exploiting kids for profit” when she signed the original law. That made the news. The permanent injunction three years later, overturning that same law? Barely a ripple. Act 900 itself got its own round of celebratory press. The injunction we’re discussing here will get a fraction of that coverage.

The political asymmetry is kind of the point. State legislatures have figured out that there is essentially no downside to passing obviously unconstitutional social media laws. The upside is maximal: you get to posture as tough on Big Tech, protective of children, and responsive to moral panics about screens and teens. The downside — losing in federal court, wasting state resources on legal fees, and getting lectured by judges about basic First Amendment doctrine — happens quietly, years later, long after the political benefits have been banked.

Arkansas will almost certainly lose its appeal, and either way the legislature will be back next session with a new hastily drafted law that fixes some of Act 900’s problems while introducing fresh ones. And then that will get struck down. And then they’ll try again. Texas, Florida, California, Ohio, Utah, Mississippi, Tennessee, Georgia, and a growing list of other states are running the same play on roughly the same schedule.

The courts keep doing their jobs. NetChoice keeps winning. Judges keep writing careful opinions explaining, for what feels like the hundredth time, that strict scrutiny means what it means, vagueness doctrine exists for a reason, and you cannot simply compel platforms to do whatever you want because you have invoked The Children.

None of it matters to the incentive structure. The headline from the signing ceremony is worth more than the opinion from the courthouse. Until that changes — until voters start holding legislators accountable for passing laws that can’t survive even the most basic constitutional review — we’re going to keep reading rulings like this one. Arkansas just provided the latest installment. There will be more.

Filed Under: 1st amendment, arkansas, free speech, privacy, protect the children, social media, social media addiction, social media safety act
Companies: netchoice

Caught In The Crackdown: As Arrests At Anti-ICE Protests Piled Up, Prosecutions Crumbled

from the lying-liars dept

This story was originally published by ProPublica and Frontline. Republished under a CC BY-NC-ND 3.0 license.

The National Guard soldiers in desert camo piled out of unmarked vans in East Los Angeles last June, cordoning off East Sixth Street, a residential street lined with single family houses, and blocking a nearby road leading to an elementary school.

A squad of federal agents moved in flinging flash-bang grenades — explosives designed to disorient — into a small home before storming inside. They’d come for Alejandro Orellana, a Marine Corps veteran and UPS employee accused of being a central figure in a secret confederacy of insurrectionists. A news video had shown the 30-year-old distributing water, food and face shields to people protesting the Trump administration’s immigration roundups in Los Angeles.

Bill Essayli, a former state legislator who leads the federal prosecutor’s office in Los Angeles, joined the raid along with a Fox News crew.

With cameras rolling, Orellana, his parents and brothers were led out in handcuffs as agents searched their home.

On Fox News, Essayli, sporting a blue FBI windbreaker, hyped the arrest of Orellana, a quiet, wiry man with a long mane of coal-black hair. “It appears they’re well-orchestrated and coordinated, and well-funded,” he said. “And today was one of the first arrests — first key arrests — that we did.”

Essayli would charge Orellana with conspiracy — under a federal statute typically used to build cases against drug traffickers and organized crime — and with aiding and abetting civil disorder.

Within weeks, the prosecutor’s marquee case would quietly fall apart. Agents who searched Orellana’s house found little that could be considered incriminating, and prosecutors never charged anyone else as part of the supposed conspiracy. By late July, they moved to have the charges dismissed.

It wouldn’t be the only such case.

Over the past 10 months, President Donald Trump’s administration has made much of its success in sweeping through U.S. cities, capturing unauthorized immigrants and arresting people who publicly oppose the operations, routinely accusing dissenters of being domestic terrorists or extremists. Federal agents have arrested hundreds of U.S. citizens like Orellana — including protesters, activists observing the immigration enforcement operations, bystanders and, in some cases, the family members of people targeted for deportation.

Less clear to the public is what has happened to those charged.

To find out, ProPublica and FRONTLINE combed through social media, court records and news stories. Reporters identified more than 300 protesters and bystanders who were arrested by federal agents during immigration sweeps and were accused of crimes such as assaulting or interfering with law enforcement. 

But over and over those accusations fell apart under scrutiny. Our reviews of court files found that statements made by the arresting officers were repeatedly debunked by video footage. In more than a third of the cases, prosecutors quickly dismissed charges that couldn’t be substantiated, refused to file charges at all, or lost at trial. The tally of cases that end this way will likely climb as many of the arrests remain unresolved.

“What’s happening now is not comparable to anything that’s happened in the past,” said

Cuauhtémoc Ortega, the chief federal defender for the Central District of California, who personally represented Orellana and other protesters. “We’ve never had a situation where it seems like you arrest first and then try to justify the reasons for the arrests later.”

The Department of Homeland Security, which includes Border Patrol and Immigration and Customs Enforcement, did not respond to repeated requests for comment on the arrests and declined to answer detailed questions from ProPublica and FRONTLINE.

But in a statement in response to an earlier story, DHS said, “The First Amendment protects speech and peaceful assembly — not rioting. DHS is taking reasonable and constitutional measures to uphold the rule of law and protect our officers.”

Watch FRONTLINE and ProPublica’s Documentary: “Caught in the Crackdown”

Given the unprecedented nature of the urban sweeps, it is difficult to compare the rate of failed cases to another time period or context. But current and former federal prosecutors and other legal experts said having that number of arrests come to nothing is particularly striking in the federal system, where U.S. attorneys usually secure convictions or guilty pleas in more than 90% of the cases they bring; only 8.2% of federal criminal cases were dismissed in 2022, according to data compiled by that court system.

The failures highlight the challenges of sending large numbers of federal agents into major cities to conduct roving immigration sweeps: They aren’t accustomed to dealing with crowds of angry protesters 

Border Patrol agents are typically stationed at the border where their day-to-day work entails scooping up people who have crossed illegally. ICE agents, who often work in urban settings, had little prior experience handling hostile crowds. And FBI agents, who have aided in the immigration sweeps, would normally spend months or years painstakingly amassing evidence before making arrests.

That lack of experience in street policing and crowd control, coupled with the Trump administration’s demand for huge numbers of deportations, led agents to make a wave of unjustified arrests, legal experts say.

To be sure, protesters have often engaged in hostile behavior, hurling expletives, getting in agents’ faces and occasionally becoming violent. A woman in Minnesota is accused of biting off part of an agent’s finger during a scuffle after the killing of Alex Pretti in late January; in Los Angeles, an officer outside an immigration detention facility suffered a dislocated finger after a protester allegedly grabbed his bulletproof vest and shook him. 

But the agents’ conduct has also frequently been violent. As ProPublica and FRONTLINE reported last year, they have routinely shot pepper balls or tear gas at protesters in ways that violate their own rules, causing severe injuries to demonstrators in several cities. 

“The agents, they don’t know how to operate in these situations,” said Christy Lopez, a former Justice Department attorney who spent years investigating misconduct by law enforcement. Their behavior, she said, “is on par with the worst protest policing and just law enforcement that I’ve seen from any department, even in their worst days.

In its earlier statement, DHS said that “rioters and terrorists” have repeatedly attacked immigration agents, but ICE and Customs and Border Protection personnel “are trained to use the minimum amount of force necessary to resolve dangerous situations to prioritize the safety of the public and themselves.”

The arrests are not without consequence. Even unsuccessful prosecutions can be costly and emotionally taxing for defendants, said Jared Fishman, a former career prosecutor in the Department of Justice’s Civil Rights Division. The aggressive tactics of the agents and the gleeful social media posts by DHS accusing protesters of serious crimes, Fishman said, affect people’s willingness to publicly challenge the mass deportation policies. 

“If the goal of the Trump administration is to keep people out of the streets, then it doesn’t matter if the people are getting convicted,” said Fishman, now the executive director of the Justice Innovation Lab, a nonprofit focused on creating a more equitable and effective justice system. “I’m sure it’s having a chilling effect.”

After reviewing data and some court records for ProPublica and FRONTLINE, Fishman said, “The numbers seem to indicate a pattern and practice of illegal arrests.”

“We Must Identify Him”

The crackdown on protesters began in June of 2025, when the Department of Homeland Security launched its wave of major immigration sweeps in Southern California. The campaign was led by Gregory Bovino, a veteran Border Patrol chief who normally presided over a remote stretch of sand and scrub deep in the state’s Imperial Valley.

Bovino from the start encouraged his agents to shut down or arrest protesters.

“Arrest as many people that touch you as you want to. Those are the general orders, all the way to the top,” Bovino told his officers, footage from an agent’s body-worn camera shows. “Everybody fucking gets it if they touch you.”

He went on to remind them that their actions should be “legal, ethical, moral” while encouraging them to use so-called less lethal weapons on protesters.

“We’re gonna look at shipping tractor trailers full of that shit in here,” he said. 

Bovino’s forces repeatedly fired tear gas canisters and rubber bullets at the heads and faces of demonstrators and journalists. 

Bovino’s aggressive tactics sparked intense opposition from Angelenos, including those gathered in the streets in front of the sprawling federal office complex in downtown Los Angeles on June 9. 

That day Orellana drove his Ford F-150 pickup truck loaded with bottled water, snacks and cardboard boxes containing Uvex brand face shields — clear plastic masks designed to protect industrial workers from flying debris and chemical splashes — to the protest.

When he arrived in front of the federal building, another person hopped into the bed and began handing out the supplies to protesters gathered outside the entrance.

Orellana told FRONTLINE and ProPublica that he decided to help distribute the supplies after watching federal agents fire tear gas and rubber bullets into crowds at an earlier demonstration.

“A bunch of us took it upon ourselves to, you know, go downtown and give out these resources — the food, water and of course the PPE,” he said, referring to personal protective equipment.

Video and photos quickly made their way onto social media. An X user with more than 30,000 followers posted a photo of Orellana. “A photograph of the man delivering boxes of gas masks to the rioters has emerged,” wrote the poster. “We must identify him, so we can track down who is funding this coordinated attack.”

From there the thread was picked up by the conspiracy theorist Alex Jones, who has a vast audience on the platform. Jones, who repeatedly claimed that financier and philanthropist George Soros was funding the protests, eventually named Orellana as the driver of the pickup. More than two million people saw the post. 

Within 48 hours, the soldiers and federal agents arrived to arrest Orellana.

Over the next five months, they arrested more than one hundred U.S. citizens in Los Angeles and other cities in Southern California — most of them demonstrators — charging them with assaulting federal law enforcement personnel or interfering with agents’ activities. Others were accused of damaging government property. At least 16, like Orellana, were charged with conspiracy, which can carry a sentence of up to six years in prison.

ProPublica and FRONTLINE found that more than a third of those cases crumbled. In eight instances, juries acquitted defendants at trial. But more frequently, prosecutors dropped charges when the claims made by immigration officers and agents didn’t match video evidence or other inconsistencies emerged. In several cases, prosecutors declined to file charges at all. 

There have been some successful prosecutions: 32 of the 116 people whose arrests in California we reviewed have been convicted, many pleading guilty to misdemeanor charges. And in late February, jurors convicted two activists on stalking charges after they livestreamed themselves following an immigration agent to his home; the pair were acquitted of conspiracy.

Today 38 cases are still pending.

Essayli has stated on social media that his office brought more than 100 cases and secured convictions in more than half of them. When asked about the discrepancy between his claims and the data compiled by ProPublica and FRONTLINE, he declined to comment. 

“The U.S. attorney’s office does not lose cases because they’re bad lawyers,” said Carley Palmer, who spent eight years as a federal prosecutor in the office Essayli now runs. “They are excellent trial attorneys. So if they’re losing a case, it may mean that the evidence isn’t there, or it may mean that the community doesn’t believe it should be a federal crime.”

Palmer, who is now in private practice, said the glut of protest and low-level criminal immigration cases have shifted resources away from the complex prosecutions the DOJ is uniquely equipped to handle: environmental crimes, public corruption, financial fraud, cyberscams, civil rights violations.

Essayli declined to be interviewed for this story or an accompanying FRONTLINE documentary set to air Tuesday. He was appointed by the Trump administration in early 2025, but he has never been confirmed by the Senate, raising ongoing questions about the legality of his role as top prosecutor for the region. His office did not respond to detailed questions sent by email.

Like Orellana, Julian Pecora Cardenas, 31, was charged with conspiracy last summer after following a convoy of federal agents in his car.

On the morning of July 5, Pecora Cardenas followed vans full of Border Patrol agents after they left a Coast Guard station in San Pedro, south of Los Angeles, livestreaming their movements on Instagram. “It’s every citizen’s duty to conduct oversight of their government,” he said. “I was within my First Amendment rights.”

After roughly 30 minutes, the agents stopped, pulled Pecora Cardenas from his Hyundai and slammed him to the pavement. “I honestly thought it was going to be like a George Floyd moment,” Pecora Cardenas recalled in an interview, alleging that multiple agents pinned him to the asphalt with their knees. He suffered a concussion, needed stitches over his left eye and wore an orthopedic collar to stabilize his injured neck.

Federal prosecutors charged Pecora Cardenas and another activist with conspiracy to impede the federal agents, saying that they “were illegally maneuvering their vehicles through traffic, stop lights, and stop signs to stay behind the agent’s vehicles,” that they tried to block the Border Patrol vehicles, and that they created “hazardous conditions on the road.”

Pecora Cardenas’ own video of the day’s events told a different story. The footage, which ProPublica and FRONTLINE have reviewed, contradicts the claims that the men had interfered with the agents. Within days of seeing the images, Essayli’s office jettisoned the charges “in the interest of justice.”

Pecora Cardenas hasn’t tried to observe federal agents or participate in a protest since his arrest. “I don’t want to be assaulted again. I don’t want to wind up back in federal prison for something that I didn’t do.”

“They Were Just Randomly Grabbing People”

When Bovino, the Border Patrol chief, left California and took his forces to Illinois last fall, their focus on protesters intensified.

In roughly one month, federal agents arrested more than a hundred American citizens, many of them activists participating in demonstrations or documenting the movements of immigration agents as their convoys of rented SUVs rolled through the streets of Chicago and surrounding communities.

But Justice Department prosecutors in Chicago had less success prosecuting those arrested than their peers in California.

On the morning of Oct. 3, 2025, about two hundred demonstrators gathered near the ICE facility in Broadview, a small town in the western suburbs of Chicago. Tucked away in a quiet industrial park, the nondescript building had become the locus of ongoing protests since Bovino and his forces had arrived in Illinois.

Then-Homeland Security Secretary Kristi Noem, accompanied by a DHS video team, was on site that day wearing a baseball cap and a black ballistic vest.

Also present was Benny Johnson, a prominent podcaster and online influencer who is close to the Trump administration. Johnson, who had brought his own camera crew to shoot video for his YouTube channel and other social media accounts, was effectively embedded with Noem, Bovino and the immigration agents.

At about 9 a.m., Bovino and a phalanx of heavily armed agents in combat gear began striding down Harvard Street toward the protesters. “Walk slowly,” Bovino told his men.

Without a bullhorn or any sort of amplification, Bovino informed the crowd that they were being dispersed. Then he and his colleagues began shoving people to the ground and arresting them.

In a matter of minutes, a dozen protesters had been handcuffed. Three arrestees interviewed by ProPublica and FRONTLINE told us they were confused because they’d been standing in a “free speech zone” set up by state officials. 

“I felt somebody grab my shoulder and pull me to the ground,” said Juan Muñoz, a business owner and elected leader in nearby Oak Park Township. “And once I fell onto my back, that’s when I saw it was Greg Bovino.”

Kyle Frankovich, a Harvard data scientist and Chicago resident, was also arrested. “They were just randomly grabbing people,” he recalled. “There was nowhere to go, people were falling all over the place, and several of the people they arrested simply had the misfortune of tripping over all of the other protesters” as federal agents surged into the crowd.

Frankovich said FBI agents who questioned him asked who had paid for him to participate in the demonstration and who “covered the transportation cost for you to be here today.”

Johnson’s video team and a DHS camera crew filmed the arrested protesters as they were lined up outside the ICE building, while Noem looked on. DHS posted photos of Frankovich in handcuffs on X and Facebook with the message, “We will NOT allow violent activist to lay hands on our law enforcement.”

Johnson, who has more than more than 4 million followers on X and more than 6 million subscribers on YouTube, posted a video on X panning across the arrested protesters and wrote: “I saw dozens of Democrat domestic terrorists arrested today for VIOLENT ASSAULT on federal law enforcement. Every activist here attacked ICE agents in broad daylight just for enforcing American law.” He made the same claim in a nearly 13-minute-long YouTube video.

Such social media content had become a central feature of the Trump administration’s deportation campaign. DHS, Border Patrol and a raft of allied social media influencers regularly produced slick videos showing agents in action: riding in helicopters, striding through city streets clutching rifles, breaking down doors, and apprehending immigrants and activists. 

But on that day in Chicago, DHS had strayed far from the facts. And so had Johnson, a 38-year-old former journalist who turned to social media after being embroiled in plagiarism scandals at BuzzFeed and the Independent Journal Review. 

After about eight hours in custody, Frankovich, Muñoz and nearly all the others were released without charges. In the end, only one person would be prosecuted.

Neither DHS nor Johnson have taken the posts down. Johnson did not respond to emailed requests for comment.

The lone person charged with a crime that day was Cole Sheridan, who was accused of attacking Bovino and sending him to the hospital with an injured groin muscle.

Sheridan spent three and a half days in jail — “probably the most unpleasant thing I’ve ever had to experience,” he said in an interview with FRONTLINE and ProPublica — before being released.

In court, a prosecutor said that Sheridan had thrown a punch at Bovino and pushed him, transcripts show.

The evidence presented by the Justice Department, though, was slim. Bovino didn’t wear a body camera, so prosecutors relied on video from the body camera of Border Patrol agent Jason Epperson. But it didn’t show Sheridan assaulting anyone — though he did call Bovino “a fucking idiot.” In statements to investigators, Bovino and Epperson had offered conflicting accounts of the encounter.

About a month after Sheridan was arrested, prosecutors moved to dismiss the case after a bystander video surfaced showing clearly that Sheridan hadn’t assaulted Bovino.

“I don’t know if I’ve ever experienced something truly that bizarre and absurd as, like, seeing a law enforcement agent concoct a narrative to arrest me, to press charges against me,” said Sheridan, who describes himself as intensely private and was initially reluctant to talk publicly about his arrest. “That was extremely unnerving.”

He remains worried that he’ll be harassed or even physically attacked because of the inflammatory social media posts about him. “What a farce. Every element of it felt staged,” he said. 

In a statement to ProPublica and FRONTLINE, Chicago U.S. Attorney Andrew Boutros said, “Our willingness to be open-minded and dismiss cases — or not file charges in the first place — reflects our commitment to do the right thing even in those cases where a crime was committed and the conduct in question clearly falls outside any protected First Amendment activity.” He declined to comment directly on Sheridan’s case.

FRONTLINE and ProPublica showed video of Sheridan’s arrest to Lopez, the former Justice Department attorney. “It’s just a gross abuse of power,” she said. “And we’ve almost normalized that this is how federal law enforcement behaves now. They just arrest people.”

Of the 109 arrests that ProPublica and FRONTLINE documented in the Chicago area, federal prosecutors dropped charges in at least 75 cases.

Felony Charges Downgraded

When Bovino and his forces arrived in North Carolina last November, they were greeted by protesters opposed to the deportation sweeps, as they had been in previous cities.

Heather Morrow was one of them. She had joined a small group of demonstrators, chanting and banging on metal dishes outside an immigration facility in Charlotte when ICE officers confronted the group. 

They handcuffed Morrow, 45, and another activist, stuffed them in the back of a federal vehicle and, according to Morrow, kept them there for hours before finally taking her to jail.

“I was so traumatized,” Morrow, a school bus driver and dog boarder, said in an interview. “I didn’t expect them to be so overly aggressive. I really showed up there expecting conversation, making them come to their senses.”

After a full day and night in custody, she was released to face federal felony assault charges. A Department of Justice press release accused her of attacking an ICE officer just as he showed up for his work shift, grabbing his shoulders and trying to jump on his back.

But a shaky phone video circulating on social media showed what appeared to be a very different scene. In it, an officer comes from behind and abruptly tackles Morrow to the pavement. The video doesn’t show her assaulting anyone.

When prosecutors saw the video, they dumped the felony charges. But they promptly filed a new misdemeanor case against Morrow and the other activist, alleging the pair impeded ICE officers and failed to follow their orders. It took a month for Morrow to get her phone back from federal custody, while her other confiscated possessions, including her keys, have been lost, Morrow’s attorney said. Because she’s on pretrial probation, the federal government has seized her passport. Morrow has pleaded not guilty, and her case is ongoing.

In Handcuffs and Intimidated

In early January, Bovino arrived in Minneapolis with his social media team. Within weeks, two activists — Renee Good and Alex Pretti — were shot and killed by immigration agents. The Trump administration immediately portrayed Good as an extremist; Bovino claimed that Pretti was planning to kill federal personnel when he was shot to death.

The killings, which sparked national outcry, would prompt the administration to recalibrate. By Jan. 26, Bovino had been demoted and sent back to his home station in the California desert. 

But immigration agents continued to roam the Twin Cities, and activists continued to get arrested.

Civil rights attorneys from around the country gathered in a Minneapolis conference room on Jan. 30 to discuss those arrests.

During a break for lunch, Jon Feinberg, president of the National Police Accountability Project, stepped out of the room and spoke to reporters. “To be charged with a federal crime is something that is life-altering,” said Feinberg, who is based in Philadelphia. “The consequences of being accused and possibly convicted of a federal offense are devastating, especially when people have not engaged in criminal conduct from any reasonable person’s perspective.”

ProPublica and FRONTLINE have identified nearly 80 arrests stemming from the Minnesota immigration sweeps. Most of the cases are still ongoing, though a handful have been dismissed. 

Daniel Rosen, the U.S. attorney for Minnesota, did not respond to requests for comment.

One of those arrested was Rebecca Ringstrom, who lives in Blaine, a quiet suburb north of Minneapolis.

Ringstrom, 42, is a member of an activist group that tracks immigration agents as they move around Blaine. “There was a vehicle with four agents inside that I could see. All four were in tactical gear,” she said in an interview with ProPublica and FRONTLINE. “I was able to look at the plate and see that it was a confirmed ICE vehicle.”

Behind the wheel of her Kia, she began following them; Ringstrom insists her driving was safe and lawful. But in a matter of minutes, she’d been arrested and accused of interfering with federal law enforcement.

Ringstrom said an agent at the Bishop Henry Whipple Federal Building, where she was briefly held after her arrest, said he wished he’d arrested her — because he would’ve made the experience more unpleasant and violent. “There was no reason to say that. I’m already here. I’m in handcuffs. It’s just a way to intimidate,” she recalled.

She was charged with interfering with a federal agent and issued a notice of violation — essentially a ticket — for the misdemeanor offense. Since then, Ringstrom has lined up a pro bono lawyer, but she has also lost her job, “likely due to the ongoing coverage” of her arrest.

She is scheduled to make her first court appearance later this month. 

Filed Under: 1st amendment, arrests, benny johnson, bill essayli, dhs, donald trump, fbi, free speech, gregory bovino, ice, kristi noem, pretextual arrests, protests

Court To Bondi: Demanding Platforms Censor Speech And Bragging About It On Fox News Is, In Fact, A First Amendment Violation

from the look,-the-censorship-industrial-complext! dept

For the better part of five years, we’ve been treated to an elaborate performance about the unprecedented constitutional horror of “jawboning.” Jim Jordan held hearings. Missouri’s AG sued. The Supreme Court heard Murthy v. Missouri and concluded there wasn’t enough evidence of government coercion to establish standing, let alone a First Amendment violation. None of that mattered to the MAGA ecosystem, of course, which continued to treat a handful of out-of-context sternly worded emails from Biden officials as the greatest censorship regime in American history.

Then the Trump administration came in, and a funny thing happened. The same people who’d built entire careers around the supposed horrors of government pressure on tech platforms suddenly had nothing to say when the Attorney General of the United States went on Fox News to brag — brag! — about demanding Apple remove an app and Facebook take down a group, both because their content was critical of ICE enforcement.

On Friday, Judge Jorge L. Alonso of the Northern District of Illinois granted a preliminary injunction against DOJ and DHS, finding that plaintiffs are likely to succeed on their claim that the government violated the First Amendment by coercing Facebook and Apple into suppressing protected speech. The ruling is short and direct in an almost embarrassingly straightforward way — largely because Pam Bondi and the rest of the government handed the plaintiffs most of their case on a silver platter, then held press conferences to make sure everyone knew about it.

We covered the DOJ’s demands on Apple back in October and FIRE’s subsequent lawsuit in February. As we explained then, the case seemed quite straightforward, and now the district court has agreed.

The plaintiffs are Kassandra Rosado, who ran a Facebook group called “ICE Sightings – Chicagoland” with nearly 100,000 members, and Kreisau Group, which made a phone app called “Eyes Up” for documenting ICE enforcement activity. Both services existed well before the government got involved. Both had been reviewed by the platforms and found compliant with their respective policies. In fact, as the ruling notes regarding the Facebook group:

Prior to October 14, out of thousands of posts and tens of thousands of comments made in the Chicagoland Facebook group, Facebook’s moderators found and removed only five posts and comments that purportedly violated Facebook’s guidelines. … When Facebook removed those posts, Facebook advised Rosado that the posts were “participant violations” that “don’t hurt your group” and that “groups aren’t penalized when members or visitors break the rules without admin approval.”

Then Laura Loomer — a person whose entire public identity was built around suing Facebook and other tech companies for moderating her own posts, and who once argued that content moderation was literal RICO — tagged Pam Bondi and Kristi Noem in a social media post demanding they do something about the Chicagoland group. Because apparently the First Amendment only constrains Meta when Loomer herself is being moderated; when she wants other people silenced, she calls in the actual federal government.

Two days later, Facebook disabled the group. That same day, Bondi posted this to X:

Today following outreach from [the DOJ], Facebook removed a large group that was being used to dox and target [ICE] agents in Chicago.

Noem followed up with her own X post taking credit for the DOJ’s “leadership” in getting Facebook to act, adding the observation that:

Platforms like Facebook must be PROACTIVE in stopping the doxxing of our [ICE] law enforcement. … We will prosecute those who dox our agents to the fullest extent of the law.

On the Apple side, Bondi went even further, telling Fox News Digital directly:

We reached out to Apple today demanding they remove the ICEBlock app from their App Store — and Apple did so.

A few days later, she added that “we had Apple and Google take down the ICEBlock apps” and — in a sentence that should probably be framed and hung in every law school’s First Amendment classroom — followed it with: “We’re not going to stop at just arresting the violent criminals we can see in the streets.”

Apple promptly removed Eyes Up too, informing the developer that “law enforcement” had provided “information” indicating the app violated Apple’s guideline against “defamatory, discriminatory, or mean-spirited content” — the same guideline Apple had independently reviewed the app under just two months earlier, when it found no such problem.

The legal framework here is familiar territory for Techdirt readers. Bantam Books v. Sullivan from 1963 established that “thinly veiled threats to institute criminal proceedings” against parties who don’t come around to the government’s preferred speech outcomes violate the First Amendment. 2024’s NRA v. Vullo reaffirmed and sharpened that principle, holding that “[g]overnment officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.” The test, per Vullo, is whether government conduct, “viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff’s speech.”

That’s what was missing in the Murthy case — but was clearly present in Vullo. And here.

Judge Alonso applies this framework step-by-step. On causation — the element the Murthy plaintiffs famously failed on — he identifies three facts that, taken together, make it overwhelmingly likely the injuries trace to government coercion rather than independent platform judgment:

First, Facebook had previously reviewed the Chicagoland group, and Apple had previously reviewed Eyes Up. In both cases, Facebook and Apple had determined that the content met their requirements. Second, Facebook and Apple changed their positions and removed the content immediately after Defendants contacted them about it. And third, Defendants made public statements taking credit for the fact that Facebook and Apple had removed the content.

Unlike in Murthy, where it was all vague speculation disconnected from reality, the causal chain here is pretty clear, helped along by a Trump administration that simply can’t resist bragging about suppressing the rights of Americans.

Bondi and Noem’s inability to resist a Fox News hit really made this case super easy. In Murthy, the Supreme Court found that plaintiffs couldn’t even establish the Biden administration had caused the content moderation decisions they were complaining about, because platforms had their own independent reasons for their policies and had often rejected government requests outright. Here, the government has publicly, repeatedly, and proudly announced that it caused the removals.

On the coercion analysis itself, Alonso walks through the Seventh Circuit’s Backpage.com v. Dart framework, noting that government officials don’t even need direct regulatory authority over the target to cross the line. What matters is “the distinction between attempts to convince and attempts to coerce.” And here, the court finds, Bondi and Noem demanded rather than requested, and made clear there would be consequences for non-compliance:

Bondi and Noem also intimated that Facebook and Apple may be subject to prosecution for failing to comply with Bondi and Noem’s demands. For example, after stating that we “had Apple and Google take down the ICEBlock apps,” Bondi further stated: “We’re not going to stop at just arresting the violent criminals we can see in the streets.” … And in the same social media post where Noem wrote that “[p]latforms like Facebook must be PROACTIVE in stopping the doxxing of our [ICE] law enforcement,” she added: “We will prosecute those who dox our agents to the fullest extent of the law.” … Although these statements may not be direct threats to prosecute Facebook and Apple, they are intimations of a threat. And thinly veiled threats such as these constitute sufficient evidence on which Plaintiffs are likely to succeed on their claim.

The quote from Bondi about not stopping “at just arresting the violent criminals we can see in the streets,” paired with her public announcement that she’d forced Apple’s hand, is about as textbook a Bantam Books fact pattern as you’re going to find. The Supreme Court’s warning in 1963 was that “[p]eople do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around.” Sixty-three years later, here is the Attorney General of the United States describing the process of coming around, and taking credit for it.

Of course, as you know, Bondi was fired by Trump earlier this month for insufficient commitment to his vindictive fantasies, and Noem has also been replaced. Both are automatically substituted out in the litigation under Rule 25(d) for their successors, Todd Blanche and Markwayne Mullin. The people who orchestrated the censorship may be out of power, but it’s not like their replacements are any less likely to violate the free expression rights of Americans. This injunction binds these replacement-level cabinet members all the same.

But still, in all of this, it’s astounding that we’ve heard nothing from the vocal crew who insisted the Murthy case was the quintessential example of American government censorship. The same people who were trumpeting a faux settlement in that case just weeks ago seem to have zero to say about a court finding actual censorship here.

For years, the people who built entire media careers around the supposed Biden jawboning scandal insisted — against all available evidence — that private platforms making their own moderation decisions after receiving polite feedback from the government constituted the greatest assault on free speech in American history. They refused to accept the distinction between persuasion and coercion, dismissed every platform executive who explained that moderation decisions were independent, and treated the Supreme Court’s rejection of their standing arguments in Murthy as a miscarriage of justice rather than an accurate assessment of what the evidence actually showed.

And now, confronted with an actual, documented, judicially confirmed case of government coercion — where the Attorney General literally said the word “demanding” in a Fox News interview, where the Secretary of Homeland Security publicly warned platforms they “must be PROACTIVE” and threatened prosecution, where a federal judge has granted a preliminary injunction applying the exact legal framework they claimed to care about — the response from the usual suspects has been… crickets.

Turns out they didn’t actually care about jawboning as a principle — they just cared which way the pressure was pointed. They didn’t want government neutrality about platform moderation decisions; they wanted government pressure in their preferred direction. The First Amendment, in their functional view, prohibits making life difficult for people they like and permits — encourages, even — making life difficult for people they don’t. And sure, they’ll claim this censorship was justified because it was “necessary” to “protect ICE from harm.” But that’s not how the First Amendment works, it’s wrong as a principle, and — perhaps most importantly — that same logic would have applied to the censorship they (falsely) claimed was happening under Biden regarding COVID information, which was also, in theory, done to protect American lives.

Alonso’s ruling is a reminder that the First Amendment doesn’t care about your political team. Bantam Books and Vullo don’t have political valences. Bantam Books was an 8-1 decision. Vullo was 9-0. Coercing platforms to remove speech the government disfavors is unconstitutional regardless of which administration is doing the coercing and regardless of whether the speech in question is popular with any particular political faction. But you have to actually show the coercion! A court applying the law honestly to the facts here couldn’t reach any other conclusion, because Bondi and Noem made the facts unmissable. They said the quiet part loud, on camera, to Fox News, in tweets they pinned to their profiles.

The supposedly monumental Missouri case had none of that — which is exactly why the Supreme Court rejected it. And yet it’s still held up by many as some sort of evidence of censorship, by the very same people who seem to have zero interest in this far more direct and documented example.

The takeaway is simple: if you spent five years insisting that jawboning is a grave constitutional offense, you don’t get to cheer when your team does the exact same thing. Or, well — you can, but the rest of us are going to notice. And maybe say something about it.

Everyone else gets to file this ruling away for the next time someone starts ranting about Murthy. This is what the law actually looks like when the facts are there. And the facts, in this case, were provided by the government itself, free of charge, on national television.

Filed Under: 1st amendment, dhs, doj, eyes up, free speech, ice, iceblock, jawboning, jorge alonso, kristi noem, murthy v. missouri, pam bondi
Companies: apple, facebook, meta

A First Amendment Legend Eviscerates Brendan Carr With Substance And Style

from the i'd-throw-my-computer-in-a-lake dept

We’ve been covering Brendan Carr’s censorial ambitions for a long time now. When Trump first picked him to chair the FCC, we warned people that the “free speech warrior” branding was a total sham. We later dug into the letter from a massive coalition of 80+ legal scholars, former FCC officials, and civil liberties groups detailing how Carr’s threats fly in the face of the First Amendment. Hell, just this morning Karl wrote about how Carr is still plotting to punish Jimmy Kimmel for mocking President Trump. Meanwhile, Carr has responded to the criticism with smirking emojis and culture-war memes on X, treating the whole thing as performative trolling for an audience of one.

But now, First Amendment lawyer Bob Corn-Revere has published an open letter to Carr that is, frankly, one of the most devastating things I’ve read in years. And you really should go read the whole thing.

While Carr has mostly laughed off or ignored criticism of his many First Amendment violations, a letter from Corn-Revere (beyond the incredible prose of the letter) may hit a bit different given his stature within the First Amendment world. He has famously spent decades fighting in the trenches of the hardest, most politically uncomfortable First Amendment cases in the country. He represented CBS in its challenge of the infamous “wardrobe malfunction” case, and also represented Playboy in US v. Playboy Entertainment Group and was co-counsel at the Supreme Court in the famous US v. Stevens case, which made it clear that the Supreme Court was not interested in expanding the categories of unprotected speech. There are many more famous cases on his resume as well. This is someone who has spent his entire career defending speech, including in cases where it was genuinely offensive, deeply unpopular, and legally novel — because that’s what actual First Amendment commitment requires.

Oh, and he served as Chief Counsel to former FCC Chairman James Quello, so he knows how the FCC works from the inside.

So when this person tells Brendan Carr that he has betrayed his professed values, it carries a weight that Carr’s thumbs-down emojis can’t dismiss. The letter opens by pointing to the cautionary tale of Pam Bondi’s sudden firing as Attorney General:

Pam Bondi’s sudden and ignominious end as Attorney General is an important cautionary lesson about what happens to officials in this administration who over-promise in order to curry favor with the man they see as their boss, but who under-perform because of the limits of their authority.

Bondi promised the President she would prosecute his political enemies and failed miserably. The President rewarded her misplaced loyalty by denying her the graceful exit she sought, and instead fired her during a cross-town limo ride to watch a Supreme Court argument.

You have recently threatened to revoke the licenses of broadcasters who air what you call “fake news,” which apparently includes any skeptical reporting about the war in Iran—something you know you cannot do legally.

My advice? Don’t get into a car with the president anytime soon.

That line sets the tone for everything that follows — a pointed warning from someone who’s been inside the institution and watched Carr’s transformation up close, not someone lecturing from a safe distance.

From there, Corn-Revere walks through exactly how Carr has become the precise opposite of the person he used to claim to be, quoting Carr’s own prior statements back at him:

As you may recall, shortly after you were named to head the Federal Communications Commission, I offered you some unsolicited advice in the form of an open letter entitled “A Plea for Institutional Modesty.” I suggested you should be circumspect in your assertions of power over broadcasters because “you don’t have as much power as you may think,” and flexing your regulatory muscles would conflict with both the Communications Act and the Constitution.

But as was clear from your initial acts as chairman and statements you made while campaigning for the job, your quest for political advancement overrode any previous commitment to First Amendment values. Gone were the days when, as a commissioner, you said things like “a newsroom’s decision about what stories to cover and how to frame them should be beyond the reach of any government official, not targeted by them,” or that “inject[ing] partisan politics into our licensing process” is “a deeply troubling transgression of free speech and the FCC’s status as an independent agency.”

I never expected you would heed my gratuitous advice, but had no idea how thoroughly you would betray your former (professed) values. Instead, you emerged as a Bizarro World caricature of yourself, threatening owners of broadcast networks with summer stock Don Corleone impressions and devoting much of your social media activity to jawboning. It is as if you set out to prove that the real mental health crisis in America isn’t about teens on Instagram, but public officials on X.

If someone of BCR’s stature said any of that about me, I might log off the internet forever.

The letter is full of these moments where Corn-Revere combines deep legal knowledge with rhetorical skill matched by very few. Take his description of Carr’s reliance on the long-dormant “news distortion” policy — a regulatory zombie that only exists because the FCC never formally killed it off after eliminating the Fairness Doctrine decades ago:

The news distortion policy is like a phantom limb after the FCC amputated the fairness doctrine—it is not really there in substance, but you still seem to feel you can walk on it.

Your smug social media posts about how broadcasters will be held to their public interest obligations “on your watch” ignores this history, but your claim that “the opposition to holding broadcasters accountable to the public interest comes increasingly from those unfamiliar with longstanding FCC precedent” is even worse, because you know it is a bald-faced lie.

The letter also hammers home a point we’ve made repeatedly: the actual, messy consequences of Carr’s performative bullying, and shows how spectacularly it has backfired over and over again. After Carr strong-armed Disney into suspending Jimmy Kimmel Live:

Protesters picketed outside the gates of the Magic Kingdom, and an estimated 7.1 million people cancelled subscriptions to Disney-owned streaming services Disney+ and Hulu over the controversy—at about twice the usual churn rate.

ABC affiliate group owners Sinclair Broadcasting and Nexstar Media Group, who had business before the Commission, and who dutifully followed your demand, also lost money. It turns out that advertisers will not pay as much for spots during reruns of Celebrity Family Feud as during Jimmy Kimmel Live!, and Sinclair revenue dropped a reported 16 percent for the quarter. Nexstar also suffered losses, although the amounts were not disclosed.

The result? The suspension ended a little more than a week after it began and Kimmel triumphantly returned to the air to his highest viewership in over a decade. Kimmel’s comeback garnered 6.3 million broadcast viewers and roughly 20 – 26 million views on social media within 24 hours.

His attempt to manipulate equal opportunity rules to silence Stephen Colbert went even worse:

In January, you caused the FCC staff to reinterpret whether candidate interviews on certain talk shows were exempt from the equal opportunities rule, reversing decades of precedent.

You apparently were miffed that candidate interviews on certain TV shows did not trigger “equal time” requirements for their opponents under exemptions to the rule Congress adopted in 1959. Yet mysteriously, you said there was no need to apply your reinterpretation to conservative talk radio interviews.

But your main target of this move, Stephen Colbert, outsmarted you. He ridiculed your reinterpretation of the equal opportunities rule on air, and gleefully transmitted his interview with Texas Senate candidate James Talarico on The Late Show’s YouTube channel, which is beyond the FCC’s jurisdiction. The interview got over seven million views overnight (more than three times the on-air viewership), Talarico immediately received $2.5 million in campaign contributions, and won his primary.

Carr’s tactics are unconstitutional and tactically stupid. He keeps creating the very outcomes he’s supposedly trying to prevent — even as some less strong-willed news orgs buckle under his threats or pre-censor themselves to avoid his performative wrath.

But the part of the letter that really sticks with me is the section on Carr’s legal knowledge — specifically, the massive gap between what Carr actually knows and what he pretends to believe. Corn-Revere lays out the full chain of Supreme Court precedent cutting back on the FCC’s assumed authority over broadcast content — and then lands this:

But you know all this. Just as you know the FCC eliminated the fairness doctrine four decades ago, which is the regulatory progenitor of the “news distortion policy” you now love to cite (but only against broadcasts you perceive as critical of this administration).

This matters because it removes the escape hatch of ignorance. When politicians misstate the law, you can at least entertain the possibility they just don’t know better. Carr has been an FCC commissioner for nearly a decade. He practiced communications law. He knows what he’s doing is legally indefensible, and he knows his smug social media posts about “the law is clear” are, as Corn-Revere puts it, “a bald-faced lie.”

The letter ends by looking at what all of this does to Carr’s legacy, and it lands with a quiet brutality that no amount of trolling can deflect:

Your recent appearance before the Conservative Political Action Conference is a prime example, where you explained the president is “winning” against the media by listing several media personalities who have left their jobs, including (as you put it) “sleepy eyed Chuck Todd.” I should not have to remind you of this, but it is a poor and pathetic leader who measures “winning” by what he thinks he has destroyed rather than by what he has managed to build.

And:

As I wrote in my first open letter, selling out your (professed) values represents short-term thinking. I noted that “officials who have tried to muzzle the press for short-term political gain have not been treated well by history,” and “if I were your adviser, this is not how I would want history to remember you.” Now, to the extent you will be remembered at all, it will most likely be mainly as a South Park character.

I wish you had listened.

Carr will likely ignore this, much like he brushed off the coalition letter, his own past statements, and basically every legal guardrail he’s encountered since taking the chair. That’s his whole game — the threats, the memes, the emojis, the audition tape for whatever comes next.

Still, the record is there now, written by someone whose First Amendment track record makes Carr’s look like a cheap Halloween costume. And unlike Carr’s social media posts, this letter will age well.

There’s a lot more in the letter. Go read the whole thing. You won’t regret it, even if Brendan Carr would likely wish to censor it like he wishes to censor Jimmy Kimmel.

Update: Corrected the list of cases that Bob worked on.

Filed Under: 1st amendment, bob corn-revere, brendan carr, donald trump, fcc, free speech, jimmy kimmel, news distortion

Brendan Carr Cooking Up New Sham Investigation Of Jimmy Kimmel

from the a-comedian-made-me-cry dept

As the boss of the country’s media and telecom regulators, there’s plenty of corporate malfeasance and corrupt shenanigans Brendan Carr could be targeting on any given day at the country’s biggest media and telecom companies. But because Carr’s never been all that interested in the public interest, he’s once again spending his time trying to hurt a comedian who made fun of our unpopular president.

After an embarrassing failure at his attempt to censor Jimmy Kimmel for criticizing Donald Trump last year, Policyband notes that Carr is cooking up a new inquiry to ensnare Kimmel. This time, Carr is pretending he cares about financial conflict of interests, and is looking to “revisit” long‑standing conflict‑of‑interest rules for broadcasters (and Kimmel):

“A lot of people don’t know this, but there’s conflict‑of‑interest rules that apply to broadcasters, both personal financial, but also personal political,” he said. Carr — who had a blow up with Kimmel last September over the comic’s comments about Charlie Kirk’s assassination — did not mention Kimmel by name. But he really did not need to because of the existence of a conflict of interest complaint pending against the host of Jimmy Kimmel Live! (via an ABC station) at the FCC.”

It’s been abundantly clear that the Trump administration is one giant, lumbering financial conflict of interest, though obviously Carr’s not actually interested in any equal application of financial conflict of interest rules. Instead, he’s leveraging FCC rules to single out Kimmel and a $23,000 payment Kimmel made to Democrat Adam Schiff’s campaign a year before Schiff appeared on Jimmy Kimmel Live!

Trump’s friend Larry Ellison has already taken out one late night TV host, Stephen Colbert, who was abruptly fired by CBS. Now Trump continues to try and leverage his lapdog at the FCC to find new and creative ways to make life difficult for any remaining late night hosts, tramping the First Amendment at every and any opportunity.

Carr is the same guy who recently (and illegally) ignored any remaining media consolidation limits to help his friends at right wing TV broadcasters merge, something only scuttled after court intervention. Whether it’s a conflict of interest inquiry, a free speech complaint, or cybersecurity “reforms,” absolutely nothing Carr does is in good faith; something our press struggles to make evident.

The exception has been outlets like Wired, which recently reported that a right wing activism group, the Center for American Rights (CAR), had direct access to Carr, bypassing all standard staff interactions. CAR was integral in helping Carr shape some of his hollow complaints against Kimmel and ABC in relation to his abuse of the antiquated FCC “equal time” rule.

With that bogus censorship effort thwarted, Carr has moved on to creatively crapping all over the First Amendment in equally creative, but likely equally fruitless ways.

Filed Under: 1st amendment, abc, brendan carr, censorship, fcc, financial conflict of interest, free speech, jimmy kimmel, sham investigation, trump
Companies: abc, disney

Oh Look, The MAGA FTC Built The Censorship Industrial Complex It Was Screaming About

from the pretty-sure-that's-censorship dept

We’ve been covering the Trump administration’s escalating campaign against NewsGuard for a while now. It started with the House Oversight Committee’s absurd investigation of the company for the crime of expressing opinions about news reliability. But then there was the FTC’s burdensome fishing expedition and blocking of the merger of two advertising giants — Omnicom and IPG — unless they stopped working with NewsGuard. That one prompted NewsGuard to sue the agency. Now the FTC, joined by a coalition of eight red states, has finished the job, getting the three other “big” ad agencies to agree not to use NewsGuard (or the Global Disinformation Index).

That means every single one of the five major advertising agency holding companies in the United States has now been successfully pressured by the federal government to stop using NewsGuard’s ratings. All of them. Entirely because NewsGuard expressed opinions about conservative news outlets that some powerful people found inconvenient.

I seem to recall some fairly dramatic freakouts from supposed ‘free speech absolutists’ about government pressure on media organizations constituting a massive First Amendment crisis. Strange that none of those people are speaking up about this. Many seem downright supportive.

I also seem to recall that in NRA v. Vullo, just two years ago, the Supreme Court said that government employees are not allowed to threaten companies not to do business with others because of disfavored opinions. The MAGA crowd celebrated that ruling. And now they’re doing the exact same thing that Vullo was accused of, except even more directly.

The United States government has successfully prevented a private journalism organization from doing business with the entire major advertising industry. All because NewsGuard expressed opinions about the reliability of news sources, and some of those opinions hurt the feelings of conservative media outlets — most notably Newsmax.

The FTC is leaning hard on an extraordinarily stretched interpretation of antitrust law to pull this off. The FTC’s complaint alleges that the three remaining major ad agencies — WPP, Publicis, and Dentsu — colluded through trade associations to establish common “brand safety” standards, and that this collusion constituted an illegal restraint of trade under the Sherman Act. Since they’d already gotten the other two, Omnicom and IPG, to agree to stop using NewsGuard as a condition of their merger approval, the full set is covered.

FTC Chairman Andrew Ferguson, who promised when he took the job to “end politically motivated investigations” (he meant Lina Khan’s, not his own), offered some truly rich language in the press release:

“The ad agencies’ brand-safety conspiracy turned competition in the market for ad-buying services on its head,” said Chairman Andrew N. Ferguson. “The antitrust laws guarantee participation in a market free from conduct, such as economic boycotts, that distort the fundamental competitive pressures that promote lower prices, higher quality products and increased innovation.

“As we explain in our complaint, the brand-safety agreement limited competition in the market for ad-buying services and deprived advertisers of the benefits of differentiated brand-safety standards that could be tailored to their unique advertising inventory,” he continued. “This unlawful collusion not only damaged our marketplace, but also distorted the marketplace of ideas by discriminating against speech and ideas that fell below the unlawfully agreed-upon floor. The proposed order remedies the dangers inherent to collusive practices and restores competition to the digital news ecosystem.”

The ‘marketplace of ideas’ — that’s a fun phrase to invoke while using government regulatory power to prevent private companies from subscribing to a journalism ratings service because you don’t like what the ratings say. Ferguson is claiming to restore the marketplace of ideas by directly removing a participant from it.

Strip away the out-of-context, ominous-sounding internal email quotes, and the complaint describes something far less scandalous than the FTC wants you to believe.

The advertising industry, through trade associations (the 4As’ Advertiser Protection Bureau and the World Federation of Advertisers’ GARM initiative), developed common standards for what kinds of content advertisers might not want their brands associated with. This is a practice that has existed in advertising forever — brands don’t want their logos next to terrorist recruitment content, pornography, or content promoting illegal activity. That’s what “brand safety” means. The industry then expanded those standards over time to include categories like “misinformation” — and, in doing so, some individual agencies chose to use NewsGuard’s ratings, among other tools, to help implement those standards.

The complaint makes this sound terrifying through selective quoting. The most dramatic bit is this, from GARM, cautioning participants about discussing their coordination publicly:

The first rule of Fight Club is: You do not talk about Fight Club. The second rule of Fight Club is: You do not talk about Fight Club.

That’s a colorful quote! But it’s also a joke. Fairly obviously. What it describes — trade associations encouraging discretion about internal industry discussions — is routine. What matters is whether the underlying conduct is actually anticompetitive in a way the Sherman Act cares about. And that’s where the complaint falls apart. This was about setting brand safety standards. Not about preventing competition.

In a real antitrust case involving a cartel, you’d see competitors agreeing to fix prices, divide markets, or restrict output to inflate profits at consumers’ expense. What the FTC describes here is companies subscribing to the same third-party ratings service and incorporating it into their own, independent brand safety strategies. That’s like saying five banks are running an illegal conspiracy because they all use FICO scores and independently decided not to lend to borrowers with scores below 600. Common inputs don’t equal coordinated outputs. The FTC’s own complaint includes evidence of the agencies competing on brand safety — a Publicis executive explicitly strategized about creating a better brand safety guide than WPP’s, and recommended distributing it only internally to maintain competitive advantage:

She further recommended, with emphasis, “only distribut[ing] this internally and for clients,” not putting it “publically on our website as GroupM [WPP] did.”

That’s competition. That’s exactly what a market without collusion looks like. Companies see what their rivals are doing, and try to do it better.

The complaint acknowledges that the Interactive Advertising Bureau itself recognized that “Advertising quality is in the eye of the beholder” and recommended “a nuanced approach rather than blocking entire content categories or keywords.” The agencies were, in fact, trying to develop exactly such nuanced approaches — and the evidence the FTC presents shows them debating and disagreeing about how to handle “misinformation” as a category. One agency executive described the topic as “complicated and important” and suggested tabling it. Others had “a ton of back and forth discussion” and were “close, but not 100% there.” This is just what happens when industry participants work through a difficult issue. It can look an awful lot like what the FTC calls conspiracy if you strip away enough context and squint hard enough.

The real tell, however, is the remedy. If the FTC genuinely believed the problem was anticompetitive coordination between ad agencies, the remedy would be straightforward — “stop coordinating and compete independently on brand safety standards.” Make your own decisions. Develop your own tools. Compete.

That’s not what the consent decree says. Instead, the order will “ensure that each of the biggest U.S. advertising agencies are prevented from engaging in agreements that would set common brand safety standards or restrict advertising based on biased and politically motivated criteria.” And in the Omnicom/IPG merger conditions, the language was even more explicit: The merged company was prohibited from using any service that “reflects viewpoints as to the veracity of news reporting and adherence to journalistic standards or ethics.”

That is entirely about punishing companies that ranked conservative news sources as untrustworthy. It’s about punishing speech.

The government is prohibiting private companies from using services that express viewpoints about the veracity of news reporting. That’s a content-based restriction on speech, imposed through regulatory coercion, targeting specific viewpoints the government disfavors. In any other context, the people pushing this would call it censorship — because that’s exactly what it is.

And we know this remedy was specifically tailored to target NewsGuard because Newsmax told us so. As we covered when NewsGuard filed its lawsuit against the FTC, when the original Omnicom/IPG merger conditions didn’t quite capture NewsGuard, Newsmax swooped in to fix that. As detailed in the lawsuit:

Newsmax was not subtle about its aim. Its fourteen-page letter mentioned NewsGuard more than a dozen times. Newsmax echoed Chairman Ferguson’s repeated statements that NewsGuard’s reviews and ratings of news sources based on journalistic standards were “biased” because some conservative­-leaning websites and publications scored poorly.

Not content to rely on the official FTC comment process, Newsmax took to the internet to lobby Chairman Ferguson, members of Congress, and the President. In posts on X directed to Chairman Ferguson, Newsmax asserted the FTC’s proposed order was inadequate because it “makes no mention of ‘censorship’ or ‘targeting conservatives’ and ‘[f]ully allows Omnicom to use left-wing NewsGuard.”

The FTC, in its own press release, stated that it revised the order “in response to public comments,” though the only significant revision that matched a public comment was that one from Newsmax about NewsGuard. They didn’t revise the order in response to the First Amendment scholars and free speech organizations who submitted comments pointing out the obvious constitutional problems. Only in response to Newsmax whining about NewsGuard calling out their failures in journalistic behavior.

The government regulatory agency changed its order at the direction of a media company that was mad about its review score. And now has applied the same framework across the entire industry.

This whole pattern — the origin story of this campaign — deserves emphasis because it exposes the mechanism. NewsGuard, founded by Steven Brill and Gordon Crovitz (the former publisher of the Wall Street Journal, which makes the “woke leftist” framing particularly absurd), rates news sources based on disclosed journalistic criteria. Even if you disagree with NewsGuard’s criteria, it’s still just… their opinion. Their speech. Some conservative outlets scored poorly. Those outlets complained to sympathetic politicians. Those politicians launched investigations. The FTC chair, who had already publicly stated he intended to use the FTC’s “tremendous array of investigative tools” and “coercive power” to make companies “Do what we say,” sent NewsGuard a sweeping subpoena for essentially every document the company had ever produced — including reporters’ notes and sources — while refusing to even tell NewsGuard what law it allegedly violated. Then the FTC used its merger review authority to ban NewsGuard’s biggest potential customers from doing business with it. And now, with this latest action, the ban extends to every major ad agency in the country.

As NewsGuard’s lawsuit put it:

By accusing NewsGuard of providing “biased” evaluations of news sites, Chairman Ferguson has inverted the relationship between the government and the First Amendment. NewsGuard is a private business that offers assessments of the quality of news sites based on disclosed journalistic criteria. As a matter of law, NewsGuard cannot be a censor. But by asserting FTC control over the market for NewsGuard’s services, Chairman Ferguson has embraced the censor’s role.

This claim that critical speech of favored individuals or organizations is “censorship” is at the heart of the modern GOP’s entire approach to “free speech.” Private companies expressing opinions they don’t like? Censorship. The government using regulatory power to punish private companies for expressing those opinions? Restoring the marketplace of ideas. Up is down. Speech is censorship. Censorship is freedom.

And just to put a final bow on the cynicism here: this complaint was filed in the Northern District of Texas, Fort Worth Division. If that court sounds familiar, it’s because it’s the favored venue for conservative forum-shopping, home to Judge Reed O’Connor, who has been the go-to jurist for everything from challenges to the ACA to Elon Musk’s SLAPP suit against Media Matters. The FTC almost certainly chose this seemingly random venue because they know exactly what kind of judicial scrutiny they’ll face, which is to say: none worth worrying about.

The Commission vote on this action was 1-0-1. Because, remember, Donald Trump illegally fired the two Democratic FTC members and has made no real move to replace them. All that’s left is Chairman Ferguson and the also problematic Mark Meador, who recused himself from this vote. In other words, this “vote” was simply Ferguson agreeing with himself, approving what amounts to a government-imposed blacklist of a journalism company, backed by the attorneys general of eight states, all for the offense of expressing opinions about news quality that some powerful people found inconvenient.

For the record: I’ve been somewhat critical of NewsGuard’s methodology in the past. To me, their rating system has real limitations, and I think people should take any individual rating with appropriate skepticism. In response to me saying that, some at the company have expressed their own displeasure about my criticism of their methodology. But that’s kind of the whole point. My criticism of NewsGuard is more speech. NewsGuard’s ratings are more speech. Advertisers choosing whether or not to use those ratings are exercising their own rights. Every layer of this is speech and association, all the way down. The one layer that has no business being here is the federal government deciding which speech-about-speech private companies are allowed to subscribe to.

The party that spent years screaming about the “censorship industrial complex” — a supposed conspiracy between government and private entities to suppress disfavored speech — just built an actual censorship apparatus targeting a journalism organization. They used a tortured antitrust theory as the weapon, out-of-context trade association emails as the pretext, and a hand-picked court as the rubber stamp.

And they did it all while claiming to defend free speech.

Filed Under: 1st amendment, andrew ferguson, antitrust, censorship, ftc, journalism, opinions, ratings, vullo
Companies: dentsu, garm, global disinformation index, ipg, newsguard, newsmax, omnicom, publicis, world federation of advertisers, wpp