Last week, the Liberty Justice Center (the public interest group I worked with on the case challenging Trump's earlier IEEPA tariffs, which led their invalidation by the Supreme Court)  filed the first lawsuit challenging President Donald Trump's massive Section 338 tariffs against a variety of Canadian imports. Three days later, Trump exempted some previously covered Canadian products from the tariffs, probably to help Maine Sen. Susan Collins and other congressional Republicans fearful of voter backlash in the upcoming midterm election:

President Donald Trump signed a proclamation on Friday that removes some Canadian products from tariffs imposed under Section 338 of the Tariff Act of 1930 and adds others, the White House said. The changes take effect Oct. 30.

Plywood sheets, some paper products, certain machinery and refrigeration equipment, and certain packing crates and boxes come off the list. Some valves, along with carpets, waste products and other goods, take their place.

The post Trump Exempts Some Canadian Products From Section 338 Tariffs—But His Illegal Trade War Continues appeared first on Reason Magazine.

Evil Andrew Heaton has a modest proposal for his partisan peers.

The post Evil Heaton 'Fixes' Gerrymandering appeared first on Reason Magazine.

Damien Charlotin, who runs the invaluable AI Hallucination Cases site (2200+ cases worldwide and counting) has a new one, AI Deepfakes in Court, listing 26 cases worldwide so far. His summary:

This database tracks decisions dealing with deepfakes submitted as evidence, averred or alleged, including texts and documents such as forms, records and correspondence. A failure to authenticate an exhibit is recorded separately from any finding that it was AI-generated.

It does not track cases about deepfakes as a subject: the focus is on cases started on any ground, where parties (allegedly or verily) submitted deepfakes as evidence to bolster their claims. This is distinct from using AI to fabricate citations, which is covered by the AI Hallucination Cases database, or using AI as evidence (e.g., to offer a translation or a common sense opinion), which is covered by the AI Evidence Cases database.

The post "AI Deepfakes in Court" appeared first on Reason Magazine.

Paul Skalnik was one of the most prolific jailhouse snitches in American history. A new best-selling book, Catch the Devil, chronicles Skalnik's career helping prosecutors secure dozens of convictions—despite being a serial liar and criminal. His cartoonishly long rap sheet included elaborate frauds, multiple grand thefts, and sexual assault of a child; at various times, he passed himself off as a Southwest Airlines executive, a high-powered attorney, and a Vietnam War hero. In July, Reason's Billy Binion interviewed author Pamela Colloff, a staff writer at The New York Times Magazine and reporter at ProPublica.

Q: How is it possible for someone with such an intense history of dishonesty to still earn the state's trust for decades?

A: I think you hit upon the big question of the book, right? Skalnik was a former police officer himself, so he sort of knew how the game worked. When he got to whatever county jail he ended up in, he could size up whoever it was that prosecutors most wanted a conviction against. And he would produce these incredible quote-unquote "confessions." And in return for his testimony about those confessions, he would usually be let free.

You can imagine how there were police and prosecutors who bought this. I think what becomes more difficult as he's used more widely in [Pinellas County,] Florida—where he helped send upward of 40 men to prison—at what point does someone say, "What are the odds that this guy in the jail has a better batting record than our best detectives?" No one ever says that.

Q: The book covers a lot of disturbing cases, but the one central to it is a murder case in Florida. Can you set the scene?

A: There was a 14-year-old girl named Shelly Boggio who was found in a body of water. She'd been stabbed over 30 times, and the assumption was that she'd been sexually assaulted.

The investigation quickly narrows down to a man named Jack Pearcy, who had a long history of violence against women. He was the last person seen with Boggio. When he's interviewed by investigators, he realizes they know too much. So he pivots to saying that he had his housemate—Jim Dailey—with him that night, and that it was Jim who committed this crime. Jim did not have that kind of record, and there's no physical or forensic evidence tying him to the crime, or any motive whatsoever.

Skalnik is brought in very shortly before the trial starts. He is moved in the jail to be close to where Jim Dailey was. Within 24 hours, he says he has procured Dailey's confession—a total stranger who's awaiting trial. It was a story that really played upon jurors' sympathies. He talked about how Jim Dailey had supposedly told him about stabbing Shelly Boggio to death and how she'd been staring at him in this pleading way, but she wouldn't die. It's this horrific image, and he is sentenced to death.

Q: What makes you think Dailey is actually innocent?

A: There have been over 200 people in the U.S. who were sentenced to death who have since been exonerated. We know that jailhouse informants—who are notoriously unreliable—are a factor in 25 percent of those wrongful convictions.

As far as Jim's case, there's no there there. When you see a case with three jailhouse informants, no physical evidence, no motive, and your quote-unquote "eyewitness" is the main suspect in the case? There are a lot of questions.

Q: To me, the secondary theme was that when credible evidence may exonerate someone after a jury has rendered a verdict, it is depressingly difficult to get another chance.

A: I am obsessed with this idea that the system is built to compound its own errors. When new evidence comes out—and there's a lot of new evidence that comes out over the years that really points toward his innocence—you would think that would be enough. For some very good reasons, a jury verdict is sacrosanct. But what you see is that courts really look backward at precedent and jury verdicts rather than forward at new evidence.

Jim gets terrific attorneys in this case—too late. They do incredible work, and it doesn't matter. Too many judges have rubber-stamped this testimony by Paul Skalnik. There's no way for the courts to essentially say, "Hey, let's go back and look at this holistically and see if any of this makes sense." It was shocking to me to see that.

This interview has been condensed and edited for style and clarity.

The post Pamela Colloff on America's Biggest Jailhouse Snitch, Wrongful Convictions, and Criminal Justice appeared first on Reason Magazine.

10/25/1795: Justice John Blair resigns from the Supreme Court.

The post Today in Supreme Court History: October 25, 1795 appeared first on Reason Magazine.

Is there an exception to the 5th Amendment's promise that government cannot take private property without "just compensation"? The Supreme Court declined to address that question this past Monday when it rejected a trio of petitions asking the justices to consider whether people should be compensated when law enforcement seizes or destroys their property.

Two of the cases concerned individuals who were not accused of a crime but whose property nevertheless became collateral damage as police pursued a suspect. In June 2022, police fired 30 tear gas canisters into Amy Hadley's home in South Bend, Indiana. Officers smashed windows, tore down security cameras, ransacked furniture, ripped down a panel and a fan, and punched holes in the walls as they searched for a fugitive named John Parnell Thomas, who had never been there. The police had erroneously concluded that Thomas accessed the internet via the IP address at Hadley's home. According to Hadley, the police caused at least $16,000 in damages, which insurance only partially covered.

About two months later, a SWAT team in Los Angeles arrived at Carlos Pena's North Hollywood printing business and destroyed it, along with his equipment inside, crippling his livelihood after a fugitive broke in and barricaded himself in the shop. (The suspect ultimately escaped.) Pena alleged approximately $60,000 in damages in his suit against the city, which declined to compensate him for his losses. His insurance also refused to step in—as is common in such cases, as policies often exclude damage caused by the government.

The third petition concerned Chicago drivers whose vehicles were seized by the city over modest unpaid parking tickets. Ryan O'Donnell's vehicle was impounded and sold for scrap because of about $524 in debt. Michael Goree's was seized and relinquished to the lienholder over a debt that did not belong to him; the $560 in unpaid tickets were for a different vehicle owned by his co-signer.

In all of these cases the lower courts' reasoning came from a similar place. Hadley, O'Donnell, and Goree's petitions were heard by the U.S. Court of Appeals for the 7th Circuit, which has adopted a categorical rule: Property destroyed in the exercise of "police power" is immune to claims under the Takings Clause, the U.S. Constitution's pledge that government cannot usurp private property without fairly compensating the owner. Pena's case went to the U.S. Court of Appeals for the 9th Circuit, where the judges have declined to issue such a sweeping exception but have instead ruled that governments are exempt from paying out claims when the police actions in question were "necessary."

In a statement, U.S. Supreme Court Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, outlined the many inconsistencies between the circuits on the topic. "It is still an 'open question' whether these or any other approaches are consistent with this Court's precedents. Few of these decisions likewise explain the source of any such police-power exception to the Takings Clause—whether the common law, the Constitution, or elsewhere," she wrote. "Such questions thus continue to 'benefit from further percolation' in the lower courts before this Court chooses to intervene."

Sotomayor was quoting herself. In 2024, she released similar remarks in response to a petition from Texas woman Vicki Baker, whose house in McKinney had been hollowed by a SWAT team attempting to capture a fugitive. The high court declined to hear Baker's case, although she finally found relief under the Texas state constitution this year.

"It's possible that the Court sincerely doesn't think the lower courts have done enough thinking on this important but novel issue," Patrick Jaicomo, a senior attorney at the Institute for Justice who represented Hadley, tells me. "Still, we've brought them 5 cases from 5 circuits. How much more percolation is needed?…The Court is going to have to address this important issue, and it's not clear what another circuit decision or 6 might do to aid that consideration."

Though Sotomayor's statement ran in parallel to the one two years ago, its slightly sharper warning intimated that we may be inching closer to a resolution. "I again encourage courts considering this issue to take care," she wrote, "that due deference to state police powers does not eclipse constitutional rights."

The post Police Destroyed Their Homes and Businesses. The Supreme Court Won't Say Who Should Pay. appeared first on Reason Magazine.

Vinay Prasad has been on both sides of the public health establishment. A physician, author, and professor at the University of California, San Francisco, he went from prominent COVID-era critic to Food and Drug Administration (FDA) insider when he was tapped to lead the agency's Center for Biologics Evaluation and Research in May 2025. His tenure there included an abrupt resignation in July 2025, a return a few weeks later, and his final departure in April 2026.

Prasad joined Reason's Zach Weissmueller in August to discuss what he learned from his time inside the FDA, what he was able—and unable—to change, and whether the agency can ever regain public trust. Their conversation ranges from Anthony Fauci and the origins of COVID-19 to vaccine policy, plus regulatory barriers, his growing sympathy for libertarian critiques of the FDA, and whether the agency is ready for an era of AI-driven medicine.

Reason: The FDA saw a clearing out of the old guard and a replacement with a new one—COVID dissidents such as yourself, former FDA Commissioner Marty Makary, and National Institutes of Health Director Jay Bhattacharya. What was that like? Did you have any misgivings about stepping away from academia and your role as an outside critic to join the public health bureaucracy?

Prasad: Maybe we changed 4 percent, 2 percent of the FDA. The FDA is an 18,000-person agency. There's tens of thousands of people still there. Before Marty, the commissioner, and I got there, DOGE [the Department of Government Efficiency] had just struck and they got rid of a couple thousand people. But the system is largely the same as it's always been.

There are critics of the COVID pandemic response and then there are critics. Although Marty, Jay, and I are critics of many aspects of the response, we don't go as far as some of the most extreme critics out there.

Am I glad I did it? Yes, I'm glad I did it. It was an adventure. It was a learning experience. I learned more in one year than I'd learned in the prior decade about how the world works. I'm glad to have improved some aspects of government, which I think will be enduring, and at least tried to improve other aspects of government, which may not be enduring.

Anthony Fauci personified the old guard. He's recently been in the news because he appeared before Congress and pleaded the Fifth after Sen. Rand Paul (R–Ky.) published his diary. What did those diary entries reveal to you about Fauci's character and about the way he operated?

Probably the greatest news story is that the mainstream media refuses to be honest about his legacy. Fauci was in his late 70s when the pandemic began. Had he retired at a ripe old age of 75, he'd be leaving behind a stellar legacy. But he continued. He pushed it. He stayed through the whole pandemic. He was the face of many things that his diaries get into, what he privately thought while he was publicly saying different things.

Fauci has not only been a proponent that the only answer to where the virus came from is a natural spillover event. He's gone further than that. He orchestrated a paper published in Nature Medicine called the "Proximal Origin" paper, written by a bunch of people who bolstered that point of view. He edited that paper before it was published. Then in public, he pretended like he didn't know those people; it was an independent group that validated what he was saying. Whereas in many respects, he puppeted that paper. The people who wrote that paper—Rand Paul has released their Slack channel messages showing they didn't really even believe what they were writing. Their messages reveal considerable ambiguity about lab leak vs. natural spillover event.

In terms of the origin, he also funded EcoHealth Alliance, which had a subcontract to Wuhan. He had a huge role in the origins and trying to frame the narrative, making lab leak—you couldn't even discuss it. Facebook put a ban on even talking about the topic. Then masking 2-year-olds. He played a huge role in that. Lockdowns, school closure. He said he didn't close any schools. In his own diary, he says, "I told [Mayor] Bill de Blasio, you need to close schools in New York City."

At some point, the man's got to take ownership over the decisions he did make and advocated for. When [Gov. Ron] DeSantis in Florida reopened schools in 2020, he went on every television show to say what a bad idea that was. Now, it's very clear—many of us said so at the time—school reopening was always the right decision. Maybe it could have been closed for a week or two, but certainly not beyond that. Fauci kept it closed much longer.

Vaccines make a lot of sense for elderly people who had not yet had COVID. But do they need to be given to a 4-year-old, a 7-year-old, a 12-year-old, a 22-year-old who'd already had COVID? This is where considerable ambiguity exists. But for Fauci, the answer was clear: You need all the shots. You need the initial series. You need a yearly booster. It doesn't matter how young you are or how many times you've had COVID. Fauci was wrong about almost every single pandemic policy he advanced.

Some of his defenders say to me, "At least he didn't tell people to drink bleach." And I said, "Is that the bar for a guy who's a doctor and a scientist?" Drinking bleach is not a good idea, but that's not the bar for a Fauci-level figure. He should be saying things that are correct. If they're not correct, he should be collecting evidence to weigh in. He did none of that.

Fauci's pardon stretches back to 2014, when he was authorizing funding in contravention of U.S. policy on gain-of-function research. Do you think he actually committed a crime?

Yes. The other thing about it is people will say, did that money go directly for this research? The money went for viral genomic research at a Chinese institute, very similar to the sorts of things we would be worried about. That was a crime for which he's been pardoned. It's not just my assessment. That's what Joe Biden's autopen thought, or whoever signed that pardon, that he committed a crime. That's why he has a pardon that goes that far back. It was a crime. Now that he's been pardoned for it, I don't know what you can do about it.

You rode in on this wave of anti-Faucism. What was your biggest hope for what a new version of public health might look like, or for the kinds of changes that could be made?

I had a very narrow mandate because I was just in charge of biologics at the FDA. The hope continues, which is that public health could aspire to be honest, to use its powers proportionately and judiciously, to exercise humility. Public health is far from these things. Public health could actually aspire to be bipartisan. Public health is not. It's becoming an increasingly entrenched left-wing discipline run by left-wing ideologues, reaching even more and more absurd conclusions. What public health can be and what it is are still light-years apart.

You don't think that has changed very much?

Not much at all. Changing an entrenched organization with tens of thousands of people is very difficult. There have been some changes. The pandemic has been a catalyst. But I don't think a real reform is possible. I suspect it'll splinter into different public health groups.

Your role was at the part of the FDA that oversees biologics, such as vaccines and gene therapies. Vaccines became an increasingly polarized and politicized issue during COVID. What was your goal specifically pertaining to vaccines when you took over after the pandemic?

The right drug given to the right person at the right time is lifesaving, but the wrong drug given to the wrong person at the wrong time can be harmful. Vaccines are the same way. You can't say anything about all vaccines, just like you can't say anything about Tylenol, aspirin, and Plavix all in the same breath. They're all very different drugs.

Is this the same phenomenon we observed during COVID, where you're either for the vaccine or you're against it, for a medicine or against it, without breaking things down by age, health, or other individual factors? Everything has to be flattened or compressed.

Same phenomenon. One-size-fits-all public health—where the shoe doesn't fit the guy with the big foot or the person with the small foot—is a completely wrong view of public health. COVID is a great example. An 80-year-old who's never had COVID, and we're talking about February of 2021, should they get a vaccine? Absolutely. A 7-year-old who's had COVID and we're talking about 2022? No, a healthy 7-year-old makes no sense. Public health is, in this country, so broken. It cannot appreciate these distinctions.

Something you've been writing about for a long time is poor experimental design in drug trials. Was that something you wanted to change when you came into the FDA? Do you feel like you made any progress toward that goal?

In one year, we did more than what our predecessors have done in a decade. You can look at just the sheer number of announcements and policy changes we made. We're talking a lot about one side of the coin, which is where the companies are not doing the right study to inform the American public. We're not talking about the other side of the coin, where the FDA is asking them to do things that don't make any sense at all, that burden them, that cost money, and that are wasteful. We did a lot of work in that space too. The FDA makes both errors. They also do a lot of things right, but they make both errors and they can get better.

You mentioned there were two sides of this FDA reform. One was raising standards for things like vaccines. The other was acknowledging how expensive and cumbersome it can be to get something approved in the United States. What were the biggest barriers you saw at the FDA on that side of the equation?

So many. During my time at the FDA, I was often sympathetic to the people who work at companies who told me about the hurdles they were forced to jump through. The FDA does two things: We regulate what's approved and can be marketed and sold on the U.S. market, but also what you can study.

Imagine you're a researcher and you want to study something. We're not talking about approving. You want to gather people together who may be interested in trying something new, have an informed consent, get them to volunteer, but they know that we don't know for sure it's going to work. We do so many things in that space, regulating what you can study and how you can study it, that I think are sensible. You don't want to let people sign up for something that's going to blind them or maim them. But some things that aren't sensible, that are overly burdensome, that are quality controls that don't make sense for small companies and super-rare diseases that don't have a huge budget to study these things. The regulation in this early side of research is tremendous in the United States. A lot of it is well-intentioned, but not all of it is fit for purpose.

You said that your time within the FDA made you somewhat more sympathetic to the libertarian critiques of the FDA.

I'm really sympathetic in one way: We tax people a lot of money to pay for healthcare in America—trillions of dollars. We're taking trillions of dollars from people's paychecks, from taxation, and we're taking it for this thing that we think is a benefit to people, which is we're going to offer a service that's maybe a human right, a societal good. Surely, the service we offer, we do have some of that stuff in there. If you have a heart attack, you go to the doctor here with or without insurance, they're going to open up that blockage. That's a great thing. But along with that package deal, we're going to insert a few things that may or may not work, that cost a lot of money. All that's doing is taking lots of money from taxpayers and redistributing it to the shareholders of those companies.

It's a huge financial system with the rare adverse event of helping someone's health. The libertarian comes along and says, "I'd rather not pay the tax—have more skin in the game, decide what's right for me. I'm the best person to decide how to use my own money." I do feel a sympathy to that point of view, because this system has so many places where it can be taken advantage of, where people get something that doesn't help that much, that only may kill without any possibility of benefit. And we take a lot of other people's money to pay for that.

Dario Amodei, the CEO of Anthropic, recently called out the FDA, and I'm wondering what you think of this. He wrote, "Regulatory systems were designed for a slower pace of innovation and we are not prepared for the deluge of new products and advances that AI will bring. AI may also make these downstream technologies safer and more predictable in a way that violates the skeptical assumptions of regulatory agencies like the FDA."

If Amodei is right about the effect AI is going to have on the field, do you think the FDA will be able to adapt?

I see kernels of truth in what he's saying, but maybe I don't go all the way he goes. Where I see the big core truth is the FDA tries to regulate AI itself, medical AI. You wear a watch that's supposed to give you information and the FDA wants to do a lot of that regulation. That's a very tough thing to regulate, because this technology is changing so much faster than our ability to judge it. I do agree with Marty and others who think that that's probably not the best role for regulating all the potential aspects of digital health and health AI. For instance, you can imagine the absurdity where I'm a doctor, I'm seeing a patient later this afternoon, should government regulate the apps I can use to learn about the disease or ask questions? Should it regulate open evidence? I don't think it should.

I spoke to a company called Doctronic that is acting as an AI prescriber in Utah, where AI is being allowed to refill prescriptions. That's another example of where these questions are going to have to be answered: Where does the government step in, and where does it step back?

Government is much more likely to get in the way of these kinds of innovations. It's changing so quickly. It's going to be very difficult for government to regulate that. You talk about drug discovery and drug science and those kinds of aspects of AI. If I was a pharmaceutical firm, I would definitely invest in AI. There's so many things around running clinical trials that we can do better with AI, help us run them cheaper and faster and more efficiently.

But when it comes to molecule discovery and basic science, I'm not as optimistic as Dario for a couple of reasons. One, a lot of the information that is fed into models about cancer biology is basically as close to fraudulent research as you can imagine. We're talking about like the Stanford president whose Western blots look Photoshopped kind of research. You got research that's not reproducible. It's not just my opinion. Many companies have taken samples of the literature and they tried to replicate it in their own labs and they have massive strikeout rates. If you train AI on garbage, what can it learn? It's only trained on inaccurate information. That's a challenge it faces.

The second challenge is AI will be happy to give you hypotheses to study, but you'll still need to run it with a few people to validate those hypotheses. I suspect the limiting reactant is not coming up with ideas; we have more ideas than we can study with people. The limiting reactant is getting the people to consent and manufacturing the products and those kinds of things.

I hope he's right. If he is right, it sounds like a great future. But I'm a little bit skeptical that he's totally right, because I think the biology of it is a lot harder.

Do you think enough has happened for people to start regaining trust in public health?

No way. I wouldn't trust it at all.

What still needs to happen for public health to legitimately earn back the trust of the public?

I don't know if it's even possible. It's so fragmented now. People tell you with a straight face, people I know, "Anthony Fauci, he made no mistakes. Literally, did the best job he could with the information he had." Then I said, let's just focus on one tiny thing. He did say you should take your 24-month-old kid and put a cloth mask on that kid all day in daycare. He said that. You don't think he had any clues at the time that that was a dumb idea? It's so obviously dumb, right? That's their position on every issue.

Public health is so myopic. It doesn't understand that you have to look at the whole issue. Isn't that a perfect analogy for COVID? Don't go outside. Just stay in your house all day. As if human beings don't need contact with other people and see face to face as if that doesn't matter at all.

Public health has not learned its lesson. The problem with public health is that they're completely politically captured now. Public health and the far left wing of the Democratic Party are synonyms. There's no political balance there. A little balance would go a long way. A little bit of open-mindedness would go a long way in public health. A little bit of humility to just admit a few things we got wrong in the pandemic.

The federal public health apparatus is still staffed with Robert F. Kennedy Jr. at the top and Jay Bhattacharya is still head of the National Institutes of Health. Is that not having some sort of trickle-down effect or creating a countercurrent within the system?

I don't know.

Don't get me wrong, I love Jay and I think Jay's heart's in the right place. He's already made some really important changes. I agree a lot with the kernel of Bobby's ideas. I agree with the kernel. I always say the kernel because I can think of a way that makes sense and I can sometimes think of ways it doesn't make sense.

But before I went to government, people told me that there is a fourth branch of government and it's the career state employees. I never believed that to be true, but now I'm certain that it's true. You have a lot of people who are in government. They tend to be in just three or four counties in one area, the blue pocket of America. They have strong views, and they really do a lot of the governance of this country. They make the decisions that regulate all of us in a way that's unaccountable to Congress and unaccountable to the president. I suspect they'll continue to stay. The COVID pandemic revealed to so many people that we made mistakes and that distrust in medicine and public health will just continue to grow and that there will continue to be more of these reckonings in the years to come.

How did working at the FDA affect your own confidence as a consumer in the regulatory system?

It gives me a little bit of pause sometimes. I like to trust but verify. I am cautious always with new therapies and particularly cautious that some safety information is being missed. It also makes me a bit more libertarian. I can imagine a system where we give people in America greater flexibility in what kind of products they can try. Maybe there's some third-party agencies, Consumer Reports–style agencies, that give different levels of quality and seals of approval of different products, and people can choose what they want and also have a little bit more skin in the game and use their own money. The moment you start to use your own money, suddenly tiny changes in surrogate biomarkers and elevated liver enzymes take on greater importance in a way that might not exist if you're using commercial insurance to pay for it.

Is it that you saw something inherent to the process that creates problems, holes, or gaps?

The fundamental idea that there's this one-size-fits-all balance where safety and efficacy is acceptable. What might be acceptable to you and acceptable to me might be different. I might want a little bit more efficacy information, a little bit more safety validation, and you might be willing to try more. The idea that a single monolithic government agency in the suburbs of D.C. can set that bar for every single person in America, that to me is a tougher pill to swallow now.

This interview has been condensed and edited for style and clarity.

The post Vinay Prasad on Anthony Fauci, COVID-19 Restrictions, and RFK Jr. appeared first on Reason Magazine.

The post Open Thread appeared first on Reason Magazine.

For the next month, the AALS Section on Law & Religion is accepting nominations for the Harold Berman Award. Here is the text of the announcement:

The AALS Section on Law & Religion seeks nominations for the Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that "has made an outstanding scholarly contribution to the field of law and religion," in the words of the prize rules. To be eligible, a paper must be published between July 15, 2025 and July 15, 2026. The author must be "a faculty member at an AALS Member School with no more than 10 years' experience as a faculty member." Fellows are eligible, and self-nominations are accepted, though members of the AALS Law & Religion Section Board are not eligible. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Nominations should be sent to Rick Garnett (rgarnett@nd.edu), Chair of the Berman Prize Committee, by November 18, 2026. The winner will receive an award plaque and be recognized at the section's program at the AALS annual meeting in January 2027.  Thanks to the members of the Prize Committee: Rick Garnett (Notre Dame), Nelson Tebbe (Cornell), Richard Albert (Texas), Brandon Paradise (Rutgers), Leslie Griffin (UNLV), and Anna Su (Toronto).

The post Nominations Sought for Harold Berman Law & Religion Award appeared first on Reason Magazine.

From Wednesday's decision in Fontainebleau Florida Hotel, LLC v. Botach [Rabbi Shmuley], decided by Magistrate Judge Marty Fulgueira Elfenbein:

Plaintiff's four subpoenas to the AI Providers and its Seventh RFP seek the same information, specifically Defendant's communications with AI platforms since December 3, 2024, concerning various categories of subjects:

1. All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to the Fontainebleau Hotel.
2. All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to this litigation.
3. All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to counsel for Plaintiff.
4. All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to any employee, owner, or representative of the Fontainebleau Hotel.
5. All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to any Court Order entered during this litigation.
6. All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to Judge K. Michael Moore or the undersigned.

In addition, to these six categories, Plaintiff seeks one more category of documents in the subpoenas to the AI providers (but not in the Seventh RFP), consisting of:

7. All of Defendant's AI Communications regarding Requests 1 through [6] that have, since their creation, been deleted….

Plaintiff [argued] that Defendant's AI communications may reveal the extent of his alleged malice toward Plaintiff, the intentionality underlying his conduct, and evidence relevant to the determination of punitive damages, including whether an exception to Florida's statutory cap [on punitive damages] applies….

Federal Rule of Civil Procedure 26(b)(1) permits discovery of nonprivileged matters relevant to a party's claims or defenses and proportional to the needs of the case. The Rule expressly recognizes that information within the permissible scope of discovery need not be admissible in evidence to be discoverable…. The District Court's Order at ECF No. [261], which authorized the Parties to conduct "discovery limited to damages," also governs the scope of discovery at this juncture…. Thus, the relevant inquiry is whether the particular AI communications sought by Plaintiff bear a sufficient relationship to the damages issues remaining in this action….

The degree of reprehensibility, the defendant's intent, and the circumstances surrounding the wrongful conduct are … relevant to determining an appropriate punitive-damages award…. To the extent Defendant used AI platforms to generate, revise, or refine statements concerning Plaintiff, its counsel, or its representatives, those communications may reveal not merely the final content of Defendant's statements but also the purpose for which the statements were created, the instructions Defendant supplied, and the effects he sought to achieve. Such information may provide evidence of the intent underlying Defendant's conduct that cannot necessarily be discerned from the resulting public statements alone. The Court does not determine that those communications will establish malice or specific intent to harm; it determines only that they bear a sufficient relationship to those disputed damages issues to warrant discovery….

According[] to Defendant, his alleged hostility does not necessarily prove constitutional actual malice, and it therefore should not be considered when deciding whether punitive damages are appropriate. Constitutional actual malice in a defamation action concerns knowledge of falsity or reckless disregard for truth. By contrast, the reprehensibility inquiry and the specific-intent exception under section 768.73(1)(c) require consideration of the defendant's culpability and intent to harm the claimant. Evidence of hostility, planning, or deliberate efforts to inflict or amplify injury to Plaintiff may be relevant to those questions when sufficiently connected to the alleged wrongful conduct here.

Plaintiff seeks evidence not simply to establish that Defendant disliked the Hotel, but to determine whether Defendant deliberately engaged in conduct intended to cause injury and whether that intent bears on the reprehensibility and statutory treatment of the punitive damages sought. The Court therefore rejects Defendant's argument that because hostility does not necessarily prove constitutional actual malice, it should not be considered when deciding whether punitive damages are appropriate.

Nor does the fact that some requested communications postdate the original publications render them categorically undiscoverable. Subsequent statements and conduct may, depending on their content and context, provide circumstantial evidence of a defendant's earlier intent or reveal a continuing course of conduct relevant to the injury. The temporal relationship between a communication and the alleged injury may affect its probative value, but it does not create an absolute bar to discovery….

The Court does not hold that every subsequent statement by Defendant may support an award of punitive damages. The Supreme Court has cautioned that punitive damages may not be used to punish a defendant for unrelated or dissimilar conduct merely because that conduct reflects poorly on the defendant's character. But the permissible scope of discovery is broader than the scope of evidence that may be ultimately admitted at trial. The present inquiry is whether the requested information is relevant and proportional under Rule 26(b)(1) to the damages issues remaining in this case.

Here, Plaintiff alleges a continuing course of conduct directed toward the Hotel, its personnel, and its representatives, including conduct involving AI-generated content. Plaintiff has also identified testimony from its damages expert concerning the alleged cumulative effect of Defendant's continuing online activity on the Hotel's reputation and business. As such, Defendant's communications with AI platforms concerning the Hotel and the Hotel's employees, owners, or representatives, including Plaintiff's counsel, may reveal information relevant to Defendant's alleged intent to harm Plaintiff, the nature and persistence of the challenged conduct, and the extent to which that conduct allegedly amplified Plaintiff's injuries. The Court therefore concludes that Request Nos. 1 (seeking AI communications about the Hotel), 3 (seeking AI communications about Plaintiff's counsel), and 4 (seeking AI communications about any employee, owner, or representative of the Hotel) in the subpoenas to the AI providers and the Seventh RFP fall within the scope of damages discovery authorized by the District Court….

Further, to the extent Request No. 7 in the subpoenas to the AI providers … seeks Defendant's AI communications regarding Requests Nos. 1 through [6] that have been deleted since their creation, the Court concludes that this Request is authorized by the District Court's Order only to the extent it seeks any deleted AI communications regarding Request Nos. 1, 3, and 4….

But the court rejected the other requests, which dealt with AI communications "concerning or relating to this litigation" (2), "concerning or relating to any Court Order entered during this litigation" (5), and "concerning or relating to Judge K. Michael Moore or the [Magistrate Judge]" (6):

Starting with Request No. 2 in the subpoenas and the Seventh RFP, it seeks all AI communications concerning or relating to "this litigation." That formulation is exceptionally broad. It encompasses potentially every AI exchange on matters having no meaningful connection to the amount of damages or Defendant's alleged intent to harm Plaintiff. Plaintiff has not established that every communication relating to this litigation bears on an issue remaining for the damages trial….

Turning to Request No. 5 in the subpoenas and the Seventh RFP, it seeks all AI communications concerning or relating to any Court Order entered during this litigation. Such communications may include Defendant's attempts to understand an Order, research its consequences, consider procedural options, or evaluate the litigation. The fact that Defendant may have expressed disagreement with, frustration about, or hostility toward a Court Order does not, without a sufficient connection to the alleged injury, make the communication relevant to Plaintiff's damages. Although Plaintiff contends that Defendant's reactions to Court Orders reflect the depth of his hostility and the reprehensibility of his conduct, that theory is too attenuated to justify discovery of every AI exchange concerning every Order entered in this case. The Court therefore finds that Request No. 5 exceeds the permissible scope of damages discovery.

Finally, Request No. 6 in the subpoenas and the Seventh RFP seeks all AI communications concerning or relating to District Judge K. Michael Moore or the undersigned Magistrate Judge. The Court likewise finds that Defendant's private communications with AI platforms concerning judicial officers, without more, do not bear a sufficient relationship to the damages Plaintiff seeks for the alleged harm to the Hotel. The discovery inquiry is not whether Defendant has criticized the judiciary; it is whether the requested information is relevant and proportional to the damages issues remaining in this action. A request encompassing every AI communication about the judges presiding over this litigation exceeds that scope. The Court thus finds that Request No. 6 exceeds the permissible scope of damages discovery.

The Court recognizes Plaintiff's argument that Defendant's criticism of the judicial process may demonstrate the persistence of his alleged hostility. But the Supreme Court has cautioned against using dissimilar conduct as a basis for punishing a defendant for being an objectionable person rather than for the conduct that injured the plaintiff….

And the court rejected the argument that the communications were categorically "protected work product":

Federal Rule of Civil Procedure 26(b)(3)(A) generally protects "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative." The doctrine is designed to protect the adversarial process by preserving the privacy necessary for litigation preparation….

The Eleventh Circuit's interpretation of Rule 26(b)(3)(A) confirms that work-product protection is not limited to materials prepared by counsel but extends to materials prepared by or for a party or its representative in anticipation of litigation….

When determining whether a document is protected under the work-product doctrine, "litigation need not necessarily be imminent … as long as the primary motivating purpose behind the creation of the document was to aid in possible litigation." The document must have been "created principally or exclusively to assist in anticipated or ongoing litigation." "Just because a document may have been used later to assist in litigation … does not mean it was principally prepared for such purpose." …

Here, communications independently generated by Defendant to create, revise, or disseminate content concerning the Hotel, its personnel, or Plaintiff's counsel are not transformed into attorney work product merely because Defendant is a litigant or because the resulting content may bear on this action. To the extent such communications were created for the purpose of producing public-facing statements or pursuing Defendant's independent activities, rather than preparing the defense of this litigation, they ordinarily would not satisfy Rule 26(b)(3)(A). The Court therefore rejects Defendant's blanket work-product objection to Request Nos. 1, 3, 4, and 7.

However, that conclusion does not foreclose a properly supported, document-specific claim of protection. If a particular communication was prepared because of this litigation and otherwise satisfies Rule 26(b)(3), Defendant may assert the protection in accordance with the Federal Rules. Defendant must, however, identify the withheld material and describe the nature of the asserted protection sufficiently to permit Plaintiff to assess the claim without revealing the protected information itself….

[I]f Plaintiff serves the subpoenas on the AI providers and requires them to produce the document directly to Plaintiff's counsel, Defendant will be deprived of the opportunity to determine whether there are any work-product protected documents within the production that should otherwise be withheld and identified on a privilege log. For that reason, the Parties are DIRECTED to meet and confer to discuss the logistics of how the AI providers, to the extent they have responsive materials, will be instructed to produce such materials….

Some backstory on the lawsuit from an earlier post, Magistrate Judge Recommends Massive Sanctions on Rabbi Shmuley Boteach for Violating Court Order in Anti-Semitism Lawsuit (District Judge K. Michael Moore had since adopted the Magistrate Judge's Report):

This case arises from an incident that occurred at the Fontainebleau Florida Hotel …. Plaintiff alleges that the following events occurred:

After more than an hour of loitering, Defendant Boteach engaged in an uneventful conversation with a registered guest of the Hotel and the two parted ways. More than an hour later (after midnight on Sunday, December 2, 2024), Defendant Boteach engaged in a verbal altercation with the same registered guest wherein the guest and Defendant Boteach exchanged hateful words at each other.

The guest used language that was heinous and accused Defendant Boteach of being a "baby killer" and other words that are easily interpreted as antisemitic. Defendant Boteach, in turn, hurled anti-Islamic words at the registered guest and repeatedly shouted, "Allahu Akbar? Are you going to blow yourself up or something? … he uses the expressions of, like, suicide bombers." Within hours, Defendant Boteach posted an edited video of the exchange on Instagram and began his campaign of threats against the Hotel, its ownership, its outside lawyer, and its employees—who had nothing to do with the altercation except that Hotel security de-escalated and ended it.

Plaintiff alleges that following the altercation, the Defendant, who the FAC [First Amendment Complaint] describes as a "social media influencer and rabbi" with "hundreds of thousands of social media followers[,]" went on a "multi-week assault on the [Hotel], its personnel, and representatives—creating AI videos purporting to show them celebrating antisemitism, comparing them to Nazi collaborators, falsely accusing them of banning Jews from the property, and fabricating statements that they embraced a policy of Judenrein, i.e., the extermination of six million Jews." The FAC alleges that Defendant falsely stated that he was denied entry to the Hotel because he is "too Jewish," that the Hotel refused to cooperate with law enforcement's investigation of the incident, and that he "was trespassed from the Hotel for being 'too Jewish[.]'"

Plaintiff further alleges that "Defendant Boteach published a statement that, in part, called for guests 'who have booked' at the Hotel to 'cancel your reservations'" and to "'be smart and cancel and give your hard-earned money to a hotel that doesn't abide antisemites.'" Moreover, Plaintiff alleges:

At all hours of the day and night, Defendant Boteach proceeded to harass the Hotel and its representatives. For example, he posted a "headshot" photograph of the head of the Hotel's outside counsel with the words "DIGITALLY DECAPITATED" and later, at 3:49 am, menacingly threatened that counsel was "about to have a really interesting Shabbat" when he arrived at his synagogue, which Defendant Boteach identified by name and location. Defendant Boteach directly contacted counsel's clergy and posted harassing images of them.

That post also explains the Magistrate Judge's conclusion that the defendant had repeatedly and willfully violated a court order, and therefore ought to have default judgment entered against him as to liability (with further proceedings to take place as to damages).

Sean Alexander Burstyn (Burstyn Law PLLC), Christopher Ara Ajizian (Christopher Ajizian P.A.) and Todd Rapp Friedman represent the hotel.

The post Some Communications by Rabbi Shmuley with AI Platforms May Be Discovered in Order to Determine Punitive Damages appeared first on Reason Magazine.

West Des Moines, Iowa—Iowa voters may disagree on immigration, taxes, and the economy, but government surveillance is drawing opposition from across the political spectrum.

An Emerson College poll of 750 likely Iowa voters, conducted between late August and early September, found that 61 percent opposed police use of automated license plate reader (ALPR) cameras, compared with 26 percent in support.

The backlash comes as police departments across the state increasingly rely on surveillance technology supplied by private companies such as Flock Safety and Motorola Solutions. Their cameras record license plates and vehicle information, feeding searchable databases that allow law enforcement to piece together motorists' movements, including those of people suspected of no crime.

As Iowa's gubernatorial and congressional campaigns enter their final stretch, voters are increasingly pressing candidates on whether they intend to place limits on the technology. Jacqueline Thompson, an ordained elder in the Iowa Conference of the United Methodist Church and a self-described centrist Democrat, said she has been concerned about government surveillance for years.

"It's always been important to me [and] I've always thought that was a problem," she said before a campaign rally at a senior living community in Des Moines earlier this month. "So, when people started jumping on the bandwagon saying it, I was like, 'Hello, I've been here already!'"

Thompson pointed to two Democratic candidates, Nate Willems, who is running for Iowa attorney general, and Taylor Wettach, a candidate for state auditor, as having caught her attention with their emphasis on corporate oversight and access to government records.

For Thompson, the renewed attention to privacy is a welcome development in a political environment where Democrats and Republicans rarely find common ground. "It's kind of nice to hear the people come back to the middle [and discuss this]," she said.

Flock Does Not Have Enough Guardrails

Police surveillance technology has spread across Iowa faster than the rules governing its use.

A recent study identified at least 62 Iowa law enforcement agencies that had accessed other agencies' Flock databases, including departments that did not operate cameras of their own. Police departments can therefore search information collected well beyond their jurisdictions without having to install a single camera themselves. The study (led by Megan Graham, a clinical associate professor and director of the Technology Law Clinic at the University of Iowa College of Law) found significant gaps in transparency surrounding ALPRs.

The constitutional implications are already being tested in court. On October 1, a federal judge in Oklahoma ruled that a sheriff's deputy violated the Fourth Amendment by searching a motorist's location history through automated license plate reader systems operated by Flock Safety and Motorola Solutions without a warrant.

The search turned up more than 50 records of the driver's whereabouts across multiple states over a month. In the 38-page ruling, the judge ordered the resulting evidence suppressed, describing the technology as a form of "indiscriminate mass surveillance." The decision is not binding in Iowa, and legal challenges to ALPR surveillance still face an uphill battle, but it adds to the legal scrutiny of police tracking motorists without warrants.

The University of Iowa study also raised concerns about unauthorized database access, erroneous alerts, and the potential use of locally collected information for federal immigration enforcement.

Flock Safety says it has not provided U.S. Immigration and Customs Enforcement or Border Patrol with direct access to its systems. But the researchers found that local law enforcement agencies elsewhere in the country had conducted searches on behalf of federal authorities, effectively allowing them to obtain information without direct access.

Taxpayers are also footing the bill. Cedar Rapids reported operating 76 cameras at a combined average cost of more than $20,000 a month, according to the study.

Researchers struggled to determine the full extent of surveillance across Iowa. Some agencies refused to disclose the number or locations of their cameras, while others withheld records concerning unauthorized access or erroneous alerts, citing confidentiality.

The cameras are not limited to Iowa's largest cities. Becca Eastwood, deputy policy director at the American Civil Liberties Union of Iowa, said they have spread across large, midsize, and smaller communities, prompting a surge in opposition over the past year.

The backlash "has just exploded, like no other issue that I have seen in my time at the ACLU," Eastwood told Reason in an interview. Candidates running for state and federal offices are increasingly getting asked if they support police departments using ALPR cameras, she said. 

Some local governments are already reconsidering their contracts. Indianola and Waukee suspended their Flock camera arrangements, Iowa Public Radio reported in August. Dallas County paused a planned rollout while awaiting guidance from state lawmakers. Ankeny, which operates 16 Flock cameras, is reportedly expected to reconsider a possible contract extension next year.

The backlash also cuts across the immigration debate. While concerns about federal immigration enforcement have helped draw attention to the cameras, critics argue the same surveillance infrastructure can be used against anyone, regardless of which party controls the government.

"This is a nonpartisan issue because people recognize that surveillance can be weaponized against anyone the government wants to weaponize it against," Eastwood said. "An increase in police surveillance impacts certain populations more, right now [but] nobody is immune."

Politicians Face Pressure To Cut Ties With Flock

The opposition is beginning to force Iowa's candidates to take positions on a technology that, until recently, attracted relatively little attention outside law enforcement and civil liberties circles.

Among the gubernatorial candidates, interviewed by Iowa Radio last month, Republican Zach Lahn has called for state-level regulation, arguing that the widespread collection of information about where people drive is unacceptable. Meanwhile, Democrat Rob Sand has expressed support for safeguards governing the collection and use of license plate data and said he would sign legislation if privacy concerns persisted. But he has also pointed to the cancellation of some Flock contracts as evidence that the market is responding to public concerns. 

For now, neither approach offers much clarity on whether police should be required to obtain warrants before searching motorists' location histories or how far restrictions on data collection should go.

Ryan Johnson, a libertarian-leaning Republican who works as a machinist near Waterloo, said he could accept cameras in certain locations, such as downtown areas or near traffic signals. But he objects to their spread into residential neighborhoods and public spaces.

"Just having Flock cameras everywhere, [in] residential [areas], putting them at parks and pools, we don't need that," Johnson said while attending a Lahn rally earlier this month.

So far, some of the most concrete changes to ALPR practices have come from Flock itself. In August, the company announced that it would reduce its default data-retention period from 30 days to seven and require officers to enter a criminal case number or code for each search. The changes would not, however, require police to obtain a warrant before accessing the records.

Gary and Nancy Guthrie, a Democratic couple attending a Des Moines rally supporting Chris Jones for secretary of agriculture, remain skeptical of the cameras.

"I don't have a good feel for that," Nancy Guthrie said. "Personally, I'm very much against Flock cameras."

For all the attention the issue is receiving on the campaign trail, Iowa voters have yet to hear much about what legal limits candidates would actually impose on police surveillance.

The post Iowa Voters Don't Want Police or Flock Tracking Their Cars. Politicians Are Still Catching Up. appeared first on Reason Magazine.

10/24/1894: U.S. v. E.C. Knight argued.

The post Today in Supreme Court History: October 24, 1894 appeared first on Reason Magazine.

The post Open Thread appeared first on Reason Magazine.

With public opposition toward data centers growing and midterm elections on the horizon, politicians across the spectrum have introduced overreaching policies to stymie data center development and ease voters' minds. These politicians now include President Donald Trump, who has historically been a staunch supporter of the industry.

"New and large, in some cases gigantic, Data Centers are mandated by me to make their own electricity, and give or sell any excess back to the local community, or grid," Trump declared on Truth Social on Wednesday. "If companies want to make their Data Centers popular, pay the community, and/or individuals within the community, a 'dividend.' I have watched the process closely, and Data Centers that were highly unpopular in a certain area have become extremely popular when a financial deal is struck."

While Trump has suggested that power plants pay for their own power before, ​these comments are in stark contrast to him saying less than a couple of months ago that "the only reason that communities throughout the U.S.A. should not want Data Centers is if they want to end up being backward and poor." Still, the president is not wrong that the strategy could boost data centers' popularity; polling regularly shows that concerns over higher energy prices are one of the main reasons people oppose data centers in their communities.

However, mandating that these power plants "make their own electricity" is the wrong way to accomplish this objective, in part because generation costs are not the leading factor in higher electricity prices—transmission infrastructure, such as wires and poles, is. And regulatory barriers, as well as a lack of competition in the building of this infrastructure, are mostly to blame. 

Regardless, if the goal is to have data center companies produce their own electricity, easing regulations would have more impact than imposing a mandate. As Travis Fisher, director of Energy and Environmental Policy Studies at the Cato Institute, tells Reason, "If a tech company buys electricity from the owner of a power plant, in most states the power plant owner then becomes a public utility (even if the transaction occurs off-grid), which brings heavy scrutiny in the form of economic regulation."

To ease these regulatory barriers, Fisher and other experts have advocated for a Consumer Regulated Electricity model that allows large-load customers to connect directly to unregulated power producers off the grid. 

Fisher also notes that lower power costs don't automatically translate into lower utility rates. He tells Reason, "Even if a data center were to bring a matching or beating amount of supply relative to their demand, based on the way retail rates work, I am not convinced that that guarantees that prices will fall." 

On top of not solving the main driver of higher electricity prices, the mandate isn't needed because many data centers have already begun to produce their own power. A report from energy research firm Cleanview shows that operating power capacity dedicated to data centers has nearly doubled since June, while capacity under construction has roughly quadrupled. Additionally, companies including Anthropic and Microsoft are already volunteering to cover consumers' electricity costs.

By calling on power producers to make their own electricity, Trump joins the growing chorus of politicians who are convinced that the government, not the market, is best equipped to dictate how data centers grow and operate. And, in typical Trump fashion, a "mandate" on social media without any legal action behind it has left the public and investors to guess what, if anything, is actually coming. 

Building power plants requires long-term planning and investments meant to last decades, making Trump's tendency to impose abrupt policy changes less than ideal. "The fact that the rules change, not just every four years, but occasionally overnight via tweet," says Fisher, does not make for "a great investment environment."

The post Trump Wants To Force Data Centers To 'Make Their Own Electricity.' Deregulation Would Work Better. appeared first on Reason Magazine.

Who could have predicted that age-gating large sections of the internet in a crusade to shield children's eyeballs from vaguely defined "harmful content" would have disastrous consequences and wouldn't ultimately protect kids? Apparently, the United Kingdom's online regulator, Ofcom, couldn't. 

On Thursday, Ofcom released a report assessing whether the government should make changes to the content categories of the 2023 Online Safety Act, a set of laws which require companies operating in the U.K. to prevent children from "accessing harmful and age-inappropriate content and provide parents and children with clear and accessible ways to report problems online when they do arise." The act's "child safety regime" (Ofcom's words) went fully into effect in 2025, when porn websites in the country began checking IDs. Unfortunately, as Reason's Elizabeth Nolan Brown has pointed out, the age-verification rule has impacted far more than adult websites. Already, the Online Safety Act has age-gated a wide range of content, including war news, the "NoFap" subreddit, and a historic art image, creating a mass chilling effect online. 

Ofcom's report, however, says little about these age-gating concerns for adults, and its own findings highlight the act's underwhelming results. In the report, Ofcom notes that "Most children in the UK say they have encountered at least one piece of harmful content online in a four-week period." It adds that "at a total level there was no significant change in the proportion of children encountering harmful content over the first nine months after the children's safety duties came into force in July 2025." So, it appears the act is requiring adults to fork over their IDs to access a wide range of content, some of which is innocuous, while playing a never-ending and unsuccessful game of whack-a-mole trying to eliminate "harmful" online content from kids' feeds. 

Instead of suggesting to repeal the Online Safety Act because it does not seem to be working or because it imperils online freedom, Ofcom's report proposes to broaden the law's scope. The regulator recommends adding "body stigma content and depression content, currently identified by Ofcom as kinds of non-designated content, to the category of priority content that is harmful to children." Priority content is defined as "content that services must protect/minimise the risk of children in age groups judged to be at risk of harm from encountering." In other words, online platforms could have more reasons to potentially age-gate, block, or avoid publishing out of fear of violating the law. 

The report does not address the U.K. government's plans to ban children under the age of 16 from accessing social media, and Ofcom says it will soon publish an assessment of "what highly effective age assurance looks like" for determining whether someone is 16 or older. But if the social media ban unfolds anything like it did in Australia, where kids are easily circumventing it, it is likely to flop, just as the Online Safety Act has.

The post The U.K.'s Online Safety Act Has Been a Failure. Regulators Want To Broaden It Anyway. appeared first on Reason Magazine.

Eight years ago, Scott Hancock, then 28, helped a 19-year-old acquaintance, identified in court records as T.G., buy fentanyl. At her request, Hancock, who had been addicted to opioids for years, got in touch with his drug dealer, who gave him five capsules that he handed over to T.G. in exchange for $20. Then Hancock gave the money to his dealer. Because T.G. subsequently died from a fentanyl overdose, Hancock is serving a 20-year sentence at a federal prison in Illinois.

That was the mandatory minimum sentence under 21 USC 241, which prescribes penalties for drug distribution resulting in death. Although that law has been on the books since 1986, the dramatic increase in fentanyl-related deaths during the last decade prompted a surge in federal drug prosecutions involving overdoses, which rose by 44 percent between FY 2019 and FY 2023. Hancock's case was part of that trend, and it prompted his mother, G.D. Hancock, a retired finance professor, to delve into the subject, resulting in a database that sheds light on what happens when the government treats accidental deaths as homicides.

So far, Hancock has identified 2,930 sentences in such cases since 2010. That includes 1,399 federal cases and 1,531 state cases, which rely either on laws dealing specifically with drug-induced deaths or on more general statutes addressing felony murder, "depraved heart" homicide, or manslaughter.

Sentences of 20 years or more were pretty common at the federal level, accounting for 37 percent of the cases, compared to 13 percent at the state level. The vast majority of the cases (84 percent) were resolved by plea deals. That is not surprising, given the potential consequences of going to trial. While the median sentence for defendants who pleaded guilty was nine years, it was 20 years for defendants who insisted on making the government prove its case.

Hancock's tally is based on news reports, court records, announcements by state and federal prosecutors, her own "case files and research," and "cases sent in by families, lawyers and researchers." A separate database compiled by researchers at Northeastern University, drawn from news reports, includes 3,264 cases involving drug-induced homicide from 2011 to 2022.

These prosecutions are morally nonsensical. They treat people who voluntarily consume drugs as helpless victims of supposed predators who gave them the drugs they wanted. By similar logic, bartenders and liquor store owners should be held criminally liable whenever a customer succumbs to alcohol poisoning or the long-term effects of heavy drinking. The main difference is the legal status of the drug, which is arbitrary, politically determined, and historically contingent. And while illegal drugs pose special hazards, that is a result of prohibition, which creates a black market where product composition is highly variable and unpredictable.

Charging people with homicide based on accidental overdoses would be illogical and unjust even if the defendants were limited to actual drug dealers. But you can be charged with drug-induced homicide even if your "trafficking" consisted of nothing more than sharing drugs with a relative, romantic partner, friend, or acquaintance. Based on the information Hancock was able to glean, she counts 241 cases where the person who died from an overdose was the defendant's friend, partner, or family member, and other sources suggest such prosecutions are common.

The Northeastern University researchers analyzed a sample of 213 online news reports from 2000 to 2017. They found that 50 percent of defendants charged with drug-induced homicide were caretakers, family members, friends, or partners of the people who died.

In 2021, when the Pittsburgh Tribune-Review examined Pennsylvania prosecutions for "drug delivery resulting in death" (DDRD), it described a case involving "a Westmoreland County man" who "died from an overdose of drugs he'd gotten from a friend of a friend of a friend." Although "the drugs ultimately came from a man called 'Bee' in Penn Hills," the paper noted, "the three individuals between the victim and Bee were all charged" with DDRD, a first-degree felony punishable by up to 40 years in prison.

The Tribune-Review described several other DDRD defendants, including "a Delmont woman" who "called paramedics when she found her boyfriend unresponsive in their bathroom"; "two friends" who bought heroin for a man who overdosed at a Taco Bell; and "a Monessen woman" who "sent her cousin to buy a brick of heroin" and "sold five stamp bags to a friend, who then sold four bags to an Elizabeth Borough man who died from a fatal overdose."

The Tribune-Review also found that "many facing these charges are relatively low-level dealers." Jonathan Fodi, a defense attorney and former prosecutor, told the paper he and his colleagues had never seen a DDRD case involving a high-level dealer. Given the need to prove a link between the defendant and the person who died, that is not surprising. But that situation compounds the injustice of treating such deaths as homicides, since low-level dealers often do not know exactly what is in the drugs they are selling.

A 2002 analysis of 32 drug-induced homicide prosecutions, published in the New Jersey Law Journal, found that "25 involved prosecution of friends of the decedent who did not sell drugs in any significant manner." According to a 2017 report by a Wisconsin TV station that looked at the 100 most recent prosecutions for drug-induced homicide in that state, "nearly 90% of those charged were friends or relatives of the person who died, or the lowest people in the drug supply chain." When the Chicago Tribune examined drug-induced homicide cases filed between 2011 and 2014, it found "the defendant was typically the last person who was with the person who overdosed."

Even people who support the war on drugs should be able to recognize the injustice of sending people to prison for 10 or 20 years based on their tangential roles in deaths they neither caused nor intended. And far from making such deaths less likely, that policy impedes potentially lifesaving medical assistance because the risk of a homicide charge is apt to discourage bystanders from calling for help. That daunting deterrent undermines the goal of "Good Samaritan" laws that are supposed to shield 911 callers from criminal charges in such situations.

The official justification for these prosecutions is completely disconnected from the reality of the cases. "Deaths from illicit drugs, especially fentanyl, are at historic highs," the Drug Enforcement Administration (DEA) said in a 2023 press release. Because the DEA is "committed to protecting Americans and saving lives by pursuing those responsible," the agency explained, it aims to "make sure as many drug traffickers involved in those deaths as possible get an appearance in front of a judge."

As an example of that strategy, the DEA cited Scott Hancock's case, describing him as a "trafficker" who was "found guilty of providing the drugs that killed a 19-year-old woman in 2018." Given the details of that transaction, it is hard to see the logic here. Sending someone like Hancock to prison for 20 years has nothing to do with "saving lives."

The post How Helping Someone Buy Drugs Can Send You to Prison for 20 Years appeared first on Reason Magazine.

Today the en banc Fifth Circuit ruled that illegal aliens do not have a constitutional right to a bond hearing pending deportation. The vote was ostensibly 10-7, although the vote is better characterized as to 9-8. Judge Richman only concurred in judgment. As I've said many times before, the en banc Fifth Circuit is effectively split on a razors-edge.

Guess which judge wrote the lead dissent finding that illegal aliens have the right to roam freely "to whatsoever place" their "own inclination may direct; without imprisonment or restraint"? I'll give you a hint: it's the same judge that President Trump made a deal with to pick his own replacement.

Let's start with Judge Ho's concurrence:

A nation ceases to be a nation if it can't protect its borders. Congress has chosen to police our borders by detaining illegal aliens found in our country pending their removal proceedings. See 8 U.S.C. § 1225(b)(2)(A).

According to our dissenting colleagues, however, illegal aliens have not only a de facto constitutional right to remain in our country unlawfully, but an incentive to make this their home. That's because, to quote the principal dissent, once an alien has "acquired a domicil or residence" in America, it no longer matters that they are breaking the law to be here—their detention becomes an offense to "'liberty' . . . at its core," and an affront to freedom "at its most basic," namely, "freedom from physical restraint." Post, at 101, 102, 115 (Southwick, J., dissenting). So they must have "the power of locomotion" and the right to roam freely "to whatsoever place one's own inclination may direct." Id. at 102, 103 (quoting 1 William Blackstone, Commentaries on the Laws of England 130 (1769)).

Judge Southwick's dissent was joined by Judges Stewart, Graves, Higginson, Douglas, and Ramirez--all of the Democrat-appointed judges on the court. Judge Richman concurred in the judgment. Judge Haynes did not join the dissent. She did a bit more than her usual practice on the en banc court of saying nothing--a topic for a future post--and actually wrote a full paragraph.

Why would the Trump Administration actually trust Judge Southwick to pick a replacement who would even be marginally conservative?

Does Todd Butler agree with Judge Southwick that denying a bond hearing to illegal aliens is an affront to freedom "at its most basic"? Does Butler agree with Judge Southwick that illegal aliens have the right to roam freely "to whatsoever place" their "own inclination may direct; without imprisonment or restraint"? Would Butler compare, as Judge Oldham noted, "modern-day immigration detention to the Tower of London, where English monarchs would 'secretly hurry[a man] to gaol, where his sufferings are unknown and forgotten,' and where clandestine detention was worse than 'open despotism.'"

Would Butler possibly agree with this passage from Judge Ho:

Americans like to boast that we live in a country where no one is above the law, not even the President. But if that is so, then there's no denying that these habeas petitions, far from affirming American liberty, are profoundly un-American—because they send the message that the only people who are above the law in our country are the ones who violated our laws to get in.

Consider a world where Judge Butler was on the court. Imagine that Senior Judge Southwick was on the original three-judge panel (he was in fact on the three-judge panel). Remember, Judge Richman only concurred in judgment, as she disagreed with the majority's habeas ruling. With this divide, the whole court would have split 9-9 on the constitutional question. And that is the cost of allowing Judge Southwick to stay on the court and giving Judge Butler another vote. As I noted before, "I would prefer Judge Southwick to have one vote rather than two votes."

For people who actually care about the en banc Fifth Circuit, and not just maximizing the number of total Trump circuit court appointments, the Butler nomination is an unforced error. Let Judge Southwick keep extolling the constitutional rights of illegal aliens from his chambers in Austin. He's choosing Texas, I can tell. At some point, adverse possession kicks in, right?

And for those keeping track at home, Mississippi has three circuit judges for about three million people and Texas has nine circuit judges for more than thirty million people. The math just doesn't math. Hillary Clinton said the Supreme Court should be expanded to thirteen so that there could be one Supreme Court Justice for each circuit. (Because of course the Federal Circuit needs its own circuit justice.) If that's the case, then make Texas its own circuit to justify yet another Supreme Court justice. That math does math!

The post Why Would Trump Make A Deal With A Judge Who Ruled Illegal Aliens Have A Right To "Locomotion" In The United States? appeared first on Reason Magazine.

When the 21st Century ROAD to Housing Act was still a work in progress, the Senate briefly inserted a ban on corporate ownership of single-family rental housing so sweeping that it might well have killed off the small but growing build-to-rent sector. 

After furious activism by the housing supply boosters, who had been the main advocates for the law's many other provisions, that investor ban was significantly pared back. 

The final version of ROAD, which became law in July, prohibits investors who own 350 single-family rental homes from buying new ones. But it also includes a long list of exemptions for large investor purchases of single-family rentals.

The primary exemptions include homes purchased as part of a build-to-rent project and dilapidated homes that the investor spends significant money renovating. 

The new restrictions go into effect this coming January. On Thursday, the Treasury Department released a proposed rule that would create definitions for terms that go undefined in the law and clarify the scope of "excepted purchases" of single-family housing that large investors can still make. 

Build-to-rent housing that large investors can still buy is defined as a new single-family home that's never been owned by an owner-occupier, is purchased within 18 months of the home receiving a certificate of occupancy, and is occupied by a renter. 

Protected "renovate-to-rent" homes are defined as homes that had major building code violations that were fixed by the large institutional buyer and for which the investor spent at least 15 percent of the home's purchase price on improvements. 

The rule also provides definitions for rental homes owned as part of a program to boost homeownership, which is another excepted purchase large institutional investors will be allowed to make. Those programs are generally defined as programs in which the renter has the right of first refusal to buy the home and where the rent receives financial support from the homeowner to purchase the home. 

Taken together, the clarified exceptions in the Treasury rule still leave a lot of room for large institutional ownership of single-family homes in keeping with the final text of the ROAD to Housing Act. They won't have to sell the homes they already own. They can still add to the supply of investor-owned rental housing through substantial rehabs and build-to-rent projects. 

Nevertheless, the Treasury rules will impose numerous paperwork burdens on investors who'll now have to track and report, for example, precisely how much money they've spent renovating a purchased rental house or else risk a huge fine. 

Large investors who purchase a single-family home in violation of ROAD are liable for a maximum civil penalty of $1 million per home purchase. 

The proposed Treasury rule highlights what a glaring exception the investor restrictions are to the overall spirit of ROAD. Through a variety of means, the law attempts to reduce the regulatory burden on new housing. Now, large investors will have to absorb significant compliance costs just to prove that they're adding new rental housing supply in precisely the right way. 

The post Under Proposed Treasury Rule, Corporate Homebuyers Who Don't Track Their Receipts Face $1 Million Fines appeared first on Reason Magazine.

New Yorkers won't be voting on any citywide offices this year, but they do have five ballot initiatives that could shape the city's future more than any politician on this year's ballot. Mayor Zohran Mamdani created a version of the Trump administration's infamous Department of Government Efficiency in New York called the Commission on Government Efficiency (COGE). The plan is for COGE to modernize city operations and accelerate public infrastructure and permitting—in that vein, COGE placed five proposals before voters on the November ballot, largely targeting the bureaucratic processes governing new construction and business activity across the five boroughs.

Questions 1, 2, and 3 on the ballot would end or reduce the use of public hearings in different city review processes. Question 1 would, according to the ballot language, "simplify [the] process to use public space for uses such as ramps, planters and cafes, by removing mandatory hearings and Council disapproval of sidewalk cafes, while maintaining community and Council input." Question 2 would "reduce paperwork for City contractors by authorizing [the] Procurement Policy Board to simplify [the] contractor questionnaire….[And] remove mandatory hearing for required client services report." Question 3 would "simplify review of street safety projects to reduce construction timelines," among other changes. Question 4 is about simplifying permitting.

These policies were not directly introduced by Mamdani, but they reflect a governing philosophy that New York City and other big cities desperately need: a local government that won't allow a small group of organized opponents to obstruct progress for the city at large indefinitely.

Nowhere is the bottleneck against much-needed development clearer than at public review hearings. In theory, a public hearing is democracy at its purest: Every voice is heard. But in practice, it usually becomes a slow-motion filibuster. The most persistent and best-organized opponents get a megaphone, with little to no input from the millions of New Yorkers who would broadly benefit from more housing, better infrastructure, and businesses that can open without getting wrapped in red tape.

The 2026 ballot questions, if approved, would take small steps toward addressing these problems. If they all passed, it wouldn't be a seismic change—a planter here or a parcel of land there. But that's kind of the point: Should routine administrative decisions require another round of formal public review hearings to hold up any change, big or small?

The post Even Under Mamdani, New York City's Ballot Questions Might Cut Red Tape and Public Review Hearings appeared first on Reason Magazine.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New case! In Feb. 2025, federal agents raided IJ client Mario Ayala Cruz's check cashing and money transfer business in Glendale, Ariz., seizing computers, cell phones, documents, and over $450k in cash and checks. And then … nothing. Mario, who runs the business (by the book) with his wife and adult children, has not heard anything for 20 months. No charges have been filed, and the feds are way past the 60-day deadline to either initiate civil forfeiture or return the property. Which violates the Fourth Amendment and federal law—and was extra crummy because it forced Mario to cut short his final visit with his dying father in Mexico. Click here to learn more.

New on the Short Circuit podcast: We get a Rocky Mountain high at the Tenth Circuit Bench & Bar Conference. Learn all about what makes the circuit tick from the experts we met there, including our first guest from a circuit historical society.

1. For decades, federal guidance has limited immigration enforcement at "sensitive locations," including houses of worship. Recently, DHS and ICE release new policy guidance allowing "discretion" and "case by case" decisions regarding enforcement at churches, synagogues, and mosques. Religious organizations sue. D.C. Circuit (over a dissent): And they have standing.
2. After spending 7.5 years in pretrial detention at Rikers, man is finally sentenced to a max of 7 years—time to let him out! But prison officials drag their feet for another 17 days. Second Circuit: Case undismissed. He plausibly alleged the city and its officials are turning a blind eye to overdetention.
3. Sure, says two-thirds of this Third Circuit panel, the plaintiff church has shown a good bit of evidence that Collier, Penn. officials rejected its application to build a 13k-square-foot shrine out of animus towards the church's pro-life advocacy, but that doesn't mean it gets a preliminary injunction because there's absolutely nothing "preliminary" about building a 13k-square-foot shrine.
4. Judge presides over 1993 murder trial in Philadelphia where the prosecutor is … also an eyewitness in a separate personal injury suit where the judge is the plaintiff. Conflict of interest? Third Circuit (unpublished): Judicial, prosecutorial, and municipal immunity.
5. Federal prisoner is put in solitary for nearly three years without a hearing and then ultimately cleared of role in the death of another inmate. He brings FTCA claims; they're dismissed; he doesn't find out in time to appeal. SCOTUS (2025): And we agree with him (and the feds) that he did enough to reopen the case. Fourth Circuit (2026): And we agree with him that his 2017 complaint was timely; he was Heck barred from filing earlier.
6. Looking for some light reading this weekend? How about 173 pages from the Fourth Circuit about whether the church autonomy doctrine protects a Catholic social-services agency's decision to refuse to provide health-insurance benefits for an employee's same-sex spouse.
7. Trial-advocacy tip: If you're going to "cross[ ] the bounds of proper advocacy," try to make sure the court's enumeration of your misdeeds runs to no more than four pages. The four-and-a-half-page list in this Fifth Circuit opinion is a bad look. (Your humble summarist further recommends that readers ctrl-f for "skunk.")
8. FBI agent: I accidentally shot a hostage dead in 2018 after he popped up unexpectedly on the other side of a window we were breaching, leaned out of the window, and then grabbed my gun. District court: Lies. The hostage was blindfolded, his hands were duct-taped, and he grabbed nada. The federal gov't must pay $2.3 mil for the intentional torts of its agent. Fifth Circuit: Make that $1.9 mil. Dissent: We should be focusing on punishing the hostage takers (now behind bars), not the agent (who got qualified immunity).
9. Mississippi adopts a law cracking down on state-sponsored DEI programs. District court issues a TRO, then a corrected TRO, then a P.I., finding a likely First Amendment violation. Cool? Fifth Circuit: The merits were wrong and require a do over. More importantly, the initial TRO had several legal and factual AI hallucinations (including non-existent defendants), even the corrected (and back-dated) TRO had a hallucination, and the P.I. incorporated that TRO by reference. "Because of the extraordinarily grave errors by the district court, we vacate and remand for assignment to a different district judge."
10. Come for the dramatic retelling of Rebel Without a Cause. Stay for the definitely-not-just-a-form-of-intermediate-scrutiny Bruen analysis that leads the Fifth Circuit to conclude much of the Federal Switchblade Act violates the Second Amendment.
11. South Texas non-profit alleges FEMA has secret policies for determining disaster-relief eligibility and that it's violating the Freedom of Information Act by not posting them in an online "reading room." Fifth Circuit: FOIA empowers district courts to compel posting materials online in appropriate cases. Remand to determine whether this is such a case.
12. Friends, the LSIPA, as enforced by ERCOT's CEO, prevents GHAE from messing with Texas. But is the LSIPA conflict- or field-preempted by the DPA's CFIUS (to say nothing of FIRRMA)? Fifth Circuit: Texas can indeed ban certain investments from China, Russia, etc. to protect its electric grid.
13. Michigan prisoners sue under the Eighth Amendment, alleging that their facility is overrun by toxic mold. (In response to their request for fungicide to clean it themselves, the warden allegedly tells them to just scrub harder.) Officials: The prisoners didn't allege "heinous" conduct. And they didn't point to cases about these specific strains of mold. Sixth Circuit: No, this is going to discovery. No qualified immunity (for most defendants) on these allegations.
14. Tennessee inmate with chronic back problems suffers abrupt decline: He can no longer sit, stand, walk, eat, or take a deep breath. His pain is excruciating, and an x-ray shows several possible new issues. Even so, he's not sent to the hospital for two weeks, and a staph infection, which had been treatable, renders him paralyzed. Deliberate indifference? District court: No. Sixth Circuit: Maybe. To trial this must go. Dissent: No.
15. Federal law authorizes the president to call upon a state's national guard to put down a rebellion. But even applying highly deferential review, says the Ninth Circuit (over a dissent), a rebellion is not an honest description of the protests last year in Los Angeles. President Trump's order federalizing the California National Guard was unconstitutional.
16. At age 21, Iranian immigrant gets busted for marijuana possession; for over 20 years, he stays out of trouble and abides by all sorts of conditions in order to remain here. Like, in 2025, getting ICE's permission to move from California to Kansas, where ICE agents arrest him weeks later in his yard in front of his U.S. citizen wife. Tenth Circuit: His release (after eight months) doesn't moot his habeas case because ICE re-detains people all the time. Nor does it prevent the district court from ordering the feds not to deport him. Nor does it stop us from declaring that the feds didn't follow their own rules, violating due process. Dissent: This is moot.
17. It is a serious crime to lie on the paperwork and buy a gun for someone who is not allowed to have one. Less common is buying a gun for someone who is allowed to have one—because you get a military discount and they don't. Tenth Circuit (unpublished): Still a crime, though.
18. With decidedly less jam than the Allman Brothers, Congress passed the Midnight Rider in 2005, allowing Oklahoma to regulate environmental programs in Indian country with the EPA's approval. Everyone proceeded to ignore the rider until the Supreme Court determined that much of the state was actually Indian country. Reanimated, Oklahoma sought and obtained the EPA's approval in 2025—an approval the Pawnee Nation now challenges. Tenth Circuit: The EPA is bound to keep on ridin', as the approval was appropriate.
19. One response to our embittered, social-media-coarsened discourse might be to take a deep breath and focus on the important things. Alternatively, you could follow our example and tuck into this 46 pager from the Eleventh Circuit on Florida's procedures for figuring out which books belong in school libraries, and, in the inevitable lawsuits that follow, whether school board members are or are not shielded by legislative privilege from having to testify about their motives in removing books that they consider too sexual. (By a 2-1 vote, yes, they have to testify.)
20. Man serves 23 years of 75-year sentence, is exonerated by (among other things) modern DNA testing. District court: He can't sue a Georgia DNA analyst for testilying that the original testing resulted in a match, but he can sue the analyst for fabricating evidence outside of court. Eleventh Circuit (unpublished): Reversed; the only thing allegedly fabricated was the testimony, and lying witnesses are absolutely immune from civil liability. (Click here for a lovingly crafted podcast on common law immunity for witnesses, which, no, would not have protected this analyst.)
21. And in en banc news, the Ninth Circuit will not reconsider its (unpublished) decision reaffirming circuit precedent applying a "sliding scale" test for awarding preliminary injunctions. Ten judges dissent from denial, arguing that the Ninth Circuit's test conflicts with Supreme Court precedent. Three of those judges separately dissent to argue that the Ninth Circuit is too stingy about recognizing when the Supreme Court has disagreed with circuit precedent, and the Court should straighten them out.

New case! IJ client Karli Kemper, a 25-year teaching vet, runs State 48 Arts and Academics, an innovative microschool in Pinal County, Ariz. that has been life changing for its students, most of whom have special needs and struggle in traditional settings. But the county is threatening to shut it down. Even though schools are allowed by right in Kemper's rurally zoned neighborhood, officials say that means public and charter schools, not private schools. That's outrageous, and so are the numerous onerous conditions officials insist that Kemper must follow, even assuming they grant her special-use permit application, which they want denied anyway. Click here to learn more.

The post Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal appeared first on Reason Magazine.