From the complaint in Piker v. Jennings; of course, this is just Piker's side of the story—I expect we'll get Jennings' in a forthcoming motion to dismiss:
On August 11, 2026, Scott Jennings falsely told a nationwide podcast audience that Hasan Piker was "out there calling for Black voters to be lynched." He falsely told his listeners that Mr. Piker had a "plan of returning our country to lynchings." And then he falsely told his social media followers that Mr. Piker "says the USA should resume lynchings against black people."
All of Mr. Jennings' accusations are false. Mr. Piker has never advocated the lynching of Black Americans, or anyone else. He has never called for a return to lynchings. And he has never proposed anything remotely resembling the supposed plan that Mr. Jennings falsely attributed to him.
Mr. Jennings did not merely mischaracterize something Mr. Piker said. He took a false, fabricated, and manipulated video of Mr. Piker, added a made-up quotation that Mr. Piker never uttered, and then made accusations that went beyond even what the manipulated footage purported to show. Mr. Jennings presented those accusations as fact, telling his viewers to "[l]isten for yourself" about Mr. Piker, knowing that he was playing a falsified video of Mr. Piker for those viewers, and completely disregarding the truth of Mr. Piker's actual words.
The underlying footage came from a broadcast nearly two years earlier on Twitch, an online streaming service owned by Amazon. On October 29, 2024, Mr. Piker was reacting to a debate between two Black political commentators, one liberal and one conservative. When the conservative commentator blamed "woke DAs" for policies supposedly harming Black Americans, Mr. Piker mocked him by sarcastically portraying that comment as nostalgia for an era before the civil rights movement. Laughing, Mr. Piker said:
He said, "We need more Klansmen, okay? Can we go back to a better time when lynchings were happening? This is what I like as a Black man. Also, there's no real racism in America." My man said, "woke DAs," dude. What are you saying?
Mr. Piker was plainly ridiculing the commentator's position. He was not endorsing it. The debate video remained visible behind him. Mr. Piker introduced the remarks with "He said," laughed as he delivered them, and concluded by questioning the commentator's argument. His viewers understood the sarcasm. Some laughed along. Others expressly described his comments as hyperbole. Still others predicted that someone would eventually remove the context and circulate the resulting footage as though Mr. Piker had been speaking sincerely.
That is precisely what happened. In August 2026, a 42-second video began circulating on social media that combined fragments of three separate Twitch broadcasts. The portions taken from Mr. Piker's October 2024 stream had been cropped, shortened, and rearranged. The underlying debate was removed from view. So was the contemporaneous audience commentary.
The words "He said," which identified the object of Mr. Piker's ridicule, were omitted. Mr. Piker's laughter and subsequent explanation were also removed. The resulting video portrayed sarcastic criticism of another as though it were an expression of Mr. Piker's own beliefs.
On August 11, 2026, Mr. Jennings broadcast that false video on The Scott Jennings Show, misrepresenting the manipulated video as authentic. But Mr. Jennings did not stop at repeating someone else's misleading edit. He added his own caption to the video, presented as a direct quotation from Mr. Piker:
PIKER: "LET'S GO BACK TO A BETTER TIME WHEN LYNCHINGS WERE HAPPENING" …
Mr. Piker never said those words. The original broadcast does not contain that statement. Neither does the manipulated video that Mr. Jennings chose to air. Mr. Jennings converted a sarcastic question, expressly attributed to and directed toward someone else, into a patently false first-person statement of Mr. Piker's own supposed beliefs, and then relayed that false statement to his viewers.
Mr. Jennings then went even further. After warning Black listeners to pay particular attention, Mr. Jennings accused Mr. Piker of "calling for Black voters to be lynched" and referred to "the Piker plan of returning our country to lynchings." Later that day, Mr. Jennings published the same false accusation on social media, telling his followers that Mr. Piker believed the United States "should resume lynchings against black people."
These were not expressions of disagreement with Mr. Piker's politics. Nor were they rhetorical characterizations of an admittedly controversial commentator. They were factual assertions about what Mr. Piker had said and advocated in his work. Each statement was demonstrably false.
The distinction matters. Mr. Jennings was free to criticize Mr. Piker, to condemn his political positions, or to argue that his commentary was offensive. Mr. Jennings was also free to play Mr. Piker's actual words, and provide his own commentary on what Mr. Piker actually said. Mr. Jennings was not free to do what he did: knowingly attribute to Mr. Piker statements that Mr. Piker never made, and then present those invented statements as evidence that Mr. Piker supports the racially motivated murder of Black Americans….
On February 13, 2026, the United States Department of Defense ("Department") publicly designated Alibaba Group Holding Limited as a "Chinese military company" ("CMC"). On June 30, 2026, 10 U.S.C. § 4663 went into effect, barring the Department from contracting with any company who retained the same lobbyist as a CMC. Alibaba asserts that Section 4663 has caused lobbyists to withdraw from representing Alibaba for fear of losing other clients.
The court issued a preliminary injunction, concluding § 4663 likely violates the Free Speech Clause and the Petition Clause:
Alibaba is an e-commerce and cloud-computing company that provides products, technology, infrastructure, and services to consumers and businesses for civilian and commercial use. Alibaba provides U.S. companies and businesses with a platform to sell their products to consumers in China. Additionally, it provides commercial cloud services to companies, including U.S. companies, operating in China and other countries. Alibaba has developed open-source AI models, including Qwen, with a focus on "commercial applications that make it more efficient and secure for businesses to sell goods to consumers in China." Alibaba is publicly listed on both the New York Stock Exchange and Hong Kong Stock Exchange.
"Prior to being designated [a CMC], Alibaba had retained over two dozen lobbyists and multiple lobbying firms to represent its interests before Congress and the Executive Branch" [including] … "… the Executive Office of the President, the Federal Communication Commission [("FCC")], the Federal Trade Commission, the Consumer Products Safety Commission, the Department of the Treasury, and [other entities]" …. "They presented Alibaba's views on legislation, rules, regulations, executive orders, and other government policies of commercial interest to the company. Specifically, they advocated regarding export expansion, small business export promotion, technology policy, access to U.S. capital markets, e-commerce-related issues, consumer-protection laws, and intellectual property." …
The Court finds that First Amendment scrutiny applies because Section 4663 regulates speech. By restricting Alibaba's ability to retain lobbyists, Section 4663 functionally restricts its political speech. "Discussion of public issues" is "pure speech" that is at "the core of the protection afforded by the First Amendment[.]" The First Amendment also protects "[t]he right to petition," that is, "the right of the people to inform their representatives in government of their desires with respect to the passage or enforcement of laws[.]"Lobbying government officials is therefore an activity fully protected by the First Amendment. FTC v. Super. Ct. Trial Laws. Ass'n (1990) ("It is, of course, clear that the association's efforts to … lobby District officials to enact favorable legislation … were activities that were fully protected by the First Amendment.")….
Here, Section 4663 appears to be directed at defense contractors, but its consequences are on Alibaba's speech. "[A] government official cannot do indirectly what she is barred from doing directly" by "coerc[ing] a private party to punish or suppress disfavored speech on her behalf." NRA v. Vullo (2024)…. Section 4663's impact falls on the relationship between Alibaba and the third parties crucial to its speech rights. Thus, the Court finds that Section 4663 burdens Alibaba's speech….
Defendants observe that Alibaba is not completely banned from appearing before the federal government—it could hire more in-house lobbyists or find a firm that is willing to forgo defense contractor clients…. [But] Alibaba is unlikely to find a lobbyist willing to forgo any clients who might want to contract with the Department. {The statute applies to defense contractors who contract with "entities"—in other words, lobbying firms—who also contract with CMCs. Defense contractors would not risk their ability to enter into a contract with the federal government when there are plenty of capable lobbying firms available. The lobbying firm then must choose. One or more of its lobbyists can choose to represent Alibaba, but then the entire lobbying firm must forgo representing defense contractors. The only rational choice for a lobbying firm is to stop representing Alibaba.}
[Alibaba also] represents that it cannot hire the number of experienced in-house lobbyists needed to address the federal government for all its interests…. The reduction to Alibaba's speech is sufficient to demonstrate a colorable First Amendment claim….
The court then concluded that the law was subject to strict scrutiny:
"Content-based regulations are subject to the most exacting scrutiny because 'the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" In examining a statute, courts must also examine "restrictions distinguishing among different speakers, allowing speech by some but not others." "Speech restrictions based on the identity of the speaker are all too often simply a means to control content." Thus, identity-based regulations may "demand strict scrutiny when they reflect the Government's preference for the substance of what the favored speakers have to say (or aversion to what the disfavored speakers have to say)." …
{Section 4663 is not a content-based restriction…. Section 4663 operates based solely on whether a CMC is involved. What the CMC (or non-CMC) plans to say does not affect whether Section 4663 applies.} [But] Section 4663 is a speaker-based restriction on speech—it is only applicable if a CMC seeks to retain a lobbyist. As a speaker-based restriction on political speech, Section 4663 is subject to strict scrutiny.
Defendants assert that Section 4663 should be considered under intermediate scrutiny, because Alibaba's "differential treatment" is justified by its "special characteristic[ ]," namely the potential involvement of a foreign adversary. Defendants again rely on TikTok, where the Supreme Court applied intermediate scrutiny despite finding that the divestiture statute was a speaker-based restriction, because the differential treatment was due to a content-neutral reason, namely TikTok's susceptibility to foreign control.
While Section 4663 also involves a foreign adversary, TikTok is distinguishable because political speech was not at issue. Id. ("emphasiz[ing] the inherent narrowness" of its holding and observing that "[a] law targeting any other speaker would by necessity entail a distinct inquiry and separate considerations"). Here, Defendants provide no authority to suggest that differential treatment with respect to political speech may be considered under intermediate scrutiny. Citizens Unitedv. FEC (2010) states the opposite: "Laws that burden political speech are 'subject to strict scrutiny,'" and "the First Amendment generally prohibits the suppression of political speech based on the speaker's identity." The Court thus applies strict scrutiny in determining whether Section 4663 violates the First Amendment.
{The Court recognizes that this is a close question. But for the context of political speech—specifically the ability and right to petition the government—Defendants' argument that intermediate scrutiny should apply would likely prevail, because Section 4663 is otherwise a content-neutral statute. As in TikTok, Section 4663 singles out a particular group of speakers, but not because of the content of their speech. Instead, the treatment is based on a particular characteristic of the speaker, i.e., their status as a CMC.} …
And the court held that the law failed strict scrutiny, because it was not narrowly tailored to the government interests in "(1) … prevent[ing] CMCs 'from accessing sensitive military information through their relationships with lobbyists,' and (2) … ensur[ing] that CMCs 'cannot subtly influence any of [the Department's] decisions related to national security by influencing a lobbyist'":
[T]he government cannot impose a restriction on speech based solely on "mere conjecture." Rather, it must "point to record evidence or legislative findings demonstrating the need to address a special problem."
Here, Defendants fail to meet their burden. Defendants provide only one exhibit in support of their opposition: the joint explanatory statement submitted as part of the legislative record for the Act. The statement provides an overview of Section 4663 and then "direct[s] the Comptroller General of the United States to submit a report to the congressional defense committees, not later than one year after the enactment of this Act, on the national security risks posed by consulting firms who simultaneously contract with the Department of Defense and the Chinese government or its proxies or affiliates."
Of note, the Comptroller General is directed to study consulting firms, not lobbyists. The statement does not express any findings by the Comptroller General or Congress about the risks posed by lobbyists retained by CMCs. At the preliminary injunction hearing, Defendants were unable to confirm whether a report by the Comptroller General had been submitted to Congress by December 23, 2025, one year after the Act's enactment; nor did Defendants provide a copy of the report. Other than the statement, Defendants do not provide any evidence of the national security risks or other compelling government interests….
[Moreover, d]efendants do not offer any evidence demonstrating that alternative [and less speech-restrictive] means were contemplated, much less rejected for being insufficient…. Meanwhile, Alibaba submits evidence that less alternative restrictions may exist. With respect to CMCs, Nebraska has required lobbyists representing entities on the 1260H List to file an acknowledgment that they are representing a foreign adversary. The Supreme Court "has upheld registration and disclosure requirements on lobbyists" as a "less restrictive alternative to more comprehensive regulations of speech." Defendants present no reason why a disclosure requirement, like Nebraska's, would be inadequate for the federal government.
Instead, Defendants summarily conclude that Alibaba's proposed disclosure requirement would not suffice because "there would still be access and the potential for influence." This speculation is insufficient to support a restriction on the First Amendment….
Carter G. Phillips, Christopher A. Eiswerth, Jennifer J. Clark, and Sheila Anil Gogate Armbrust (Sidley Austin LLP) represent Alibaba.
Customs and Border Protection (CBP) insists that it has the right to search Americans' private data without a warrant when entering the country. But ordered to explain one of these searches by a judge, the agency is now trying to wiggle out from under the microscope, invoking its own data privacy.
On Friday, Judge Leonie M. Brinkema in the Eastern District of Virginia ordered CBP to explain the seizure of a local psychiatric nurse's phone and laptop at Washington Dulles International Airport. CBP argued that the court should seal this information from both the public and the nurse himself in order to protect "privileged law enforcement information."
Brinkema initially agreed to let CBP file parts of its response "sealed and ex parte," meaning that neither the public nor the nurse would get to look at them. After reading the filings, the judge declared on Tuesday afternoon "that most of the redacted information is not privileged law enforcement information and should not be sealed." She gave CBP until Thursday at noon to object to unsealing the documents.
"Without knowing what happened, we cannot assess the extent of CBP's violation of our clients' rights. This raises serious concerns about government improperly invoking privilege to cover up wrongdoing," says Jenin Younes, a civil libertarian lawyer and president of the Arab-American Anti-Discrimination Committee, who is representing the nurse. "The court was right to unseal most of the redacted material so we can assess the extent to which the government behavior was improper."
Younes has stacked up a series of victories against CBP's electronic searches. Over the past few months, she sued on behalf of lawyer Jalal "Jay" Shehadeh and (non-Arab) journalist Max Blumenthal, both of whom had their phones seized at the airport by CBP without explanation. CBP tried to preempt a legal battle by giving their phones back almost immediately. Younes is still pressing to get information about what happened to their data.
Although CBP policy states that the agency will delete all data within 21 days unless there is "probable cause to believe the information contains digital contraband or evidence of a violation of law that CBP is authorized to enforce or administer," a 2018 lawsuit seemed to show that CBP was holding onto the data until someone bothered to demand its return.
Psychiatric nurse Muhammad Numaan Imam's case started similarly to Shehadeh's and Blumenthal's cases. CBP agents demanded to open his phone at the airport without explanation. He refused, arguing that patient emails and case-management software were protected by privacy laws. CBP then confiscated all of his and his wife Khadijah Mansoor's electronics. Almost immediately after Younes filed the suit on his behalf, CBP tried to argue that the case was moot because it was giving back the phone.
But Brinkema immediately agreed with Imam and Mansoor's "legitimate concerns about what was done with their electronic devices," ordering CBP to "explain why the devices of both plaintiffs were seized" and to provide sworn statements from "each person who handled any of the devices" describing exactly what was done to them.
On Monday night, the court published heavily redacted declarations from CBP Assistant Port Director Lauren Colgan, Department of Homeland Security (DHS) technician Caige McCabe, and CBP technician Ashlie Fisch.
"Mr. Imam and Ms. Mansoor presented valid, un-expired travel documents to CBP Officers in the primary inspection and were referred for secondary inspection," Colgan's declaration states. The next few sentences are blacked out. The declaration then recounts the couple explaining their early return from their anniversary vacation in Turkey and states that the CBP officer asked to open their electronics, without explaining why.
"Because of Mr. Imam's and Ms. Mansoor's refusal to provide access to their electronic devices, CBP informed Mr. Imam and Ms. Mansoor their devices would be detained to continue the border search," Colgan continues, noting that Port Director Christine Waugh signed off on holding the devices for more than five days, as CBP policy requires.
On October 17, a day after CBP seized the phones, it asked DHS headquarters for "technical assistance" with Imam's devices according to McCabe. "My examination of Mr. Imam's phone was limited to device specifications and high-level file-system structure," he states in the declaration. The next few sentences are blacked out. "I did not access or view the contents of Mr. Imam's laptop," McCabe continues. The next few sentences after that are also blacked out. "I did not access any medical information" on either the phone or laptop, McCabe concludes, stating that the devices were in his custody until he handed them back to CBP on October 21.
Fisch then received Imam's devices at CBP Laboratories and Scientific Services. Everything of substance in her declaration is redacted, beyond taking the devices on October 21 and sending them back to Washington Dulles Airport the next day. There is no unredacted explanation of what happened to Mansoor's devices.
Brinkema argued in her Tuesday order that only two sentences, both from Colgan's declaration, were legitimately blacked out. "Accordingly, the Court will unseal all other redacted information in the Declarations unless the defendants can show good cause why such information should not be unsealed," she wrote.
U.S. law gives border officers much wider authority to search for contraband in situations where normal police would need a warrant or probable cause under the Fourth Amendment. CBP argues that its powers extend to searching and seizing travelers' electronics without any explanation at all. Courts have given contradictory rulings on how far those searches can go, and the Supreme Court hasn't weighed in yet, leaving a gray area that CBP is happy to take advantage of.
Imam's case has resulted in "the most detailed explanation of what the government did with our clients' electronic devices—or it would be if so much wasn't redacted," Younes tells Reason. "I look forward to seeing the unredacted versions."
"The long-term goal is to achieve statehood and autonomy," says Kymone Freeman, the Green Party candidate for Washington, D.C.'s nonvoting delegate seat in the U.S. House of Representatives. "The short-term leverage to achieve that is tax resistance."
Like many D.C. locals, Freeman believes it's unfair that residents of the nation's capital pay federal income taxes without a voting representative in Congress. Freeman has made it a key plank in his policy platform that D.C. residents should be exempt from paying federal income tax until the district is granted statehood. "We're celebrating the 250th anniversary of America's resistance to taxation without representation, so I think it's time," says Freeman. The nation's capital is a federal district, not a U.S. territory like Guam, Puerto Rico, and the U.S. Virgin Islands, so D.C. residents are still subject to federal income tax requirements.
Federal district or not, imposing income taxes on D.C. residents without representation would likely offend America's Founders, who met in New York in October 1765 and proclaimed that it is "inseparably essential to the freedom of a people…that no taxes be imposed on them, but with their own consent, given personally, or by their representatives." Taxation is a form of theft. Compounding the issue, D.C. residents have little recourse to challenge their tax burden.
The U.S. is the only democratically governed nation to withhold voting representation from citizens living in its capital. Worse, local officials—such as the city's mayor and the D.C. Council—must solicit congressional approval for the district's budget and laws with little more than a figurehead serving as their lone representative in the federal legislature. Reason's analysis of the Internal Revenue Service's latest available adjusted gross income data shows that D.C. tax filers paid more federal income tax per return than residents in any other state, about $26,900, compared to a national average of roughly $14,300.
While that's partly because the city has many high-income earners, data show that excluding those in the city earning over $1 million, D.C. residents still paid more in income tax per return than filers in any state, about $16,500 compared to $8,900 nationally.
"We don't have a system where public policy is determined by public input because of the status quo," says Freeman. But challenging that status quo has proven difficult, as Congress resists attempts to make D.C. the 51st state. In 2021, the House of Representatives passed a party-line bill sponsored by Del. Eleanor Holmes Norton (D–D.C.) to establish D.C. as the 51st state. It later died in the (barely) Democratically controlled Senate.
Democrats once opposed D.C. becoming the 51st state; however, they've since warmed to the idea, unlike Republican lawmakers at the federal level, who have been reluctant to support statehood for D.C., viewing it as a move that would give Democrats an electoral stronghold. That argument has some truth: No elected Republicans serve on the D.C. Council. The city hasn't had a Republican mayor since its local government was established, and the district has reliably voted for a Democrat in every presidential election since 1964.
Even though Republicans at the national level do not support statehood for D.C., the District's local GOP does support ending taxation without representation. Denise Rosado—the Republican candidate for D.C.'s delegate seat—thinks statehood for the district is "unlikely" and "undesirable." That hasn't stopped her from campaigning for an end to federal income taxes in D.C., an outcome she claims can be "accomplished quickly."
That's doubtful given Congress' pace. Still, there's no logic in making statehood a prerequisite to abolishing the federal income tax requirement for district residents.
A Pennsylvania man put up Halloween decorations around his property. He had no idea they would unleash the horrors of government jawboning.
Mark, whose real name is being withheld, is a homeowner in Bristol Borough, a suburb near Philadelphia. He decorated his home with a small graveyard, two monster scarecrows, and five mannequins hanging from a large tree on his property. One additional mannequin was lashed to the tree. The faux bodies were wrapped in black plastic secured with duct tape.
Now local officials are haunting Mark.
At an October 12 borough council meeting, a neighbor complained about Mark's decorations, concerned the display looked too close to lynching. Karla Scott said the decorations are "very offensive, not just to the black people in the community, but the community as a whole." Scott told FOX 29 that her "mind went back to what my ancestors went through being hung from trees with nooses around their neck." (In the televised story, the reporter gives a trigger warning and then blurs the very decorations viewers are supposed to judge as either offensive or old-fashioned spooky fun.)
Photo: Matthew Harwood
After Scott voiced her concerns, Council President Ralph DiGuiseppe said Mark had broken no ordinance and that Mark told the borough he would not take the decorations down. "They're just Halloween decorations," Mark told the Bucks County Courier Times. "I think it's been blown out of proportion."
Despite acknowledging that Mark had violated no ordinance, DiGuiseppe noted a zoning inspector nevertheless visited his house immediately after the decorations went up.
"Our borough inspector did stop there and talk to him. But we were unsuccessful….[Mark] feels they're Halloween decorations, and he won't take them down," DiGuiseppe told Scott at the meeting. DiGuiseppe then turned to another official who said, "We'll continue our efforts."
The decorations have divided the community, with some residents saying they're simply Halloween decorations and others saying they're racially insensitive. After receiving a complaint from a resident, the local NAACP chapter said in a statement on Facebook, "Something can be legally permissible and still be profoundly harmful." The statement also called for "continued engagement by borough leadership and voluntary reconsideration of the display. This is not about restricting Halloween celebrations or freedom of expression. It is about historical awareness, empathy, and respect for our neighbors."
But Mark's insistence that he would not take them down hasn't been respected by the borough. He was also contacted by Bristol Borough Manager James Dillon and other members of the council, according to Fox News Digital, which also did not publish any pictures of the display. Mark again said he would not take the decorations down. When the mayor of Bristol Borough, Frank Peranteau, reached out to him, Mark invited the mayor to have dinner with his family to discuss the matter. In an email to Reason, Peranteau said he wasn't there to try and change Mark's mind and "found him to be a genuinely caring person with no signs of prejudice."
Nevertheless, things get spooky when government officials won't take no for an answer when contacting a law-abiding resident to "voluntarily" take down his constitutionally protected expression on his own property. This behavior by borough leadership and staff looks very much like jawboning, which is when government officials try to chill private citizens from exercising their constitutional rights through pressure or indirect threats.
While Scott and other community members may prefer there be a rule to prevent such decorations, an ordinance banning "offensive" lawn displays would be dead on arrival, constitutionally speaking. It would be viewpoint discrimination and a direct violation of the First Amendment.
Mark says he may have considered removing the display if Scott would have approached him and explained how she felt, according to Peranteau. "He told me that he was upset at the way things were handled in the beginning and he may have considered removing the display then had it been different," the mayor said, "but it was a matter of principle at that point."
Talking with your neighbor may resolve more than summoning government ghouls.
Elon Musk is under attack! Countless Democrats are admitting they plan to investigate or even jail him if they take back power on Congress in the midterms. They can't tell you what he specifically did wrong, but they'll come up with something.
Just as bad, or even worse, however, is that some of his critics want to nationalize his companies, including Starlink, which provides crucial infrastructure to Ukraine. Former Labor Secretary Robert Reich, a far-left populist Democrat, thinks Starlink is too important to be left under Musk's control, and that the federal government would do a better job administering it. I doubt that, but let's hear what he had to say:
NEW: Robert Reich calls for the "defunding" of Elon Musk, calls for Democrats to go after Musk's companies.
"Democrats ought to [start] laying the groundwork for nationalizing Starlink & SpaceX… It should be a public corporation."
From the horse's mouth: Reich thinks Democrats should be laying the groundwork to nationalize Starlink and SpaceX. This idea is crazy and reckless—and even dangerous. Here's why.
Now it's important to go over some of the background here. Starlink is a product that Ukraine uses to provide internet to its people, but only for civilian uses. Musk has maintained that while he is very happy to provide internet to Ukraine in the face of unrelenting invasion, Starlink cannot be used for offensive military purposes, because this would make his satellites a legitimate target of Russia in terms of their war effort. We want to avoid that. Separately, Starshield, a different system, is administered by the Pentagon, and Musk claims he has no control over it.
What happened last week is that a slowdown of the Starshield system resulted in reduced effectiveness of Ukraine's counterstrikes against Russia. And look, that was a problem. I traveled to Ukraine earlier this summer as part of a delegation arranged by a pro-Ukrainian nonprofit. I saw up close how important Starshield is to the defense of a free Ukraine. Moreover, there's entirely too much griping about Ukraine coming from some corners of right-wing media. Some people often seem to forget that Russia is invading Ukraine, not the other way around. It's Russia that won't accept a peace deal. When President Donald Trump called for an immediate ceasefire, Ukraine stopped hitting energy infrastructure in Russia—but Russia kept attacking anyway. Ukrainian President Volodymyr Zelenskyy has agreed to immediately stop fighting and freeze the conflict along the current lines, just like Trump wants. It's Russian President Vladimir Putin who won't negotiate.
We don't know for sure who ordered the Starshield slowdown. The U.S. government has denied doing so. Musk has, however, claimed Ukraine violated the terms of service of Starlink, using it for offensive military purposes, and thus that system was slowed down. I understand why that might be frustrating for the Ukrainians, but the fact is that it's Musk's company, so he makes the rules. It belongs to him.
And importantly, it has to stay that way. Nationalizing the company would be an insane step to take in response to a tech owner having a say in how his product is used. Do we really trust the government to operate these companies as efficiently as their founders? Of course not. Moreover, in this specific case, it might bring us closer to a direct confrontation with Russia—and as much as it's a good thing to undermine the Russian conquest of Ukraine, we do not want to start World War III.
And there are the broader philosophical harms. We are experiencing an unprecedented flourishing in the tech space, with AI, driverless cars, robotics, and such. When the government nationalizes a successful tech company, it sends a warning to all the others: If you're too good at what you do, we might take you over. We might punish you. This disincentivizes investment and innovation at a time when they're desperately needed.
Nationalizing Musk's companies is doing Ukraine no favors. But it will hurt America's interests too. We want to encourage Musk, Jeff Bezos, Sam Altman, Mark Zuckerberg, and all the rest to compete with one another to design products that make life better, earning them profits along the way. It doesn't work if the government butts in. Unfortunately, far-left thinkers like Reich, Sens. Bernie Sanders (I–Vt.) and Elizabeth Warren (D–Mass.), and many of the people who are about to be elected to Congress for the first time actually want to slow down the pace of tech. That's how much they hate Musk.
A little more than a year ago, President Donald Trump publicly demanded that Pam Bondi, then the attorney general, find a crime to pin on former FBI Director James Comey. Trump's underlings have repeatedly tried to do that, first charging Comey with lying to Congress and then accusing him of threatening to assassinate the president. But the first indictment was dismissed because Trump had illegally appointed the prosecutor who obtained it, and the second was doomed right out of the gate because it aimed to punish constitutionally protected political speech.
The Justice Department's latest attempt to follow Trump's marching orders was revealed on Monday, when U.S. District Judge Trevor McFadden unsealed a "criminal information" that claims Comey illegally shared classified information with The New York Times on October 5, 2016. In an attempt to meet the statutory deadline for that charge, prosecutors filed it exactly 10 years after the alleged disclosure. But Comey's lawyers argue that federal law required the government to obtain a grand jury indictment within 10 years of the alleged offense, which it failed to do.
Whatever you make of that dispute, the president has made it clear that he wants to imprison Comey, a longtime nemesis because of his role in the "Russiagate hoax" during Trump's first term, and does not much care about exactly how that happens. Justice Department officials, meanwhile, are keen to pursue Trump's personal vendetta by using their prosecutorial powers as an instrument of his revenge.
The new case "would almost be funny if it weren't such an appalling abuse of the Department of Justice," Comey said in an online video on Monday. "I'm still innocent. I'm still not afraid of these people, and I still believe in the independent federal judiciary."
In the New York Timesstory at the center of the case, Charlie Savage and Nicole Perloth reported that Yahoo had adapted "a system intended to scan emails for child pornography" to comply with a Foreign Intelligence Surveillance Court order seeking "messages containing a computer 'signature' tied to the communications of a state-sponsored terrorist organization." Savage and Perloth cited "two government officials who spoke on the condition of anonymity."
Dustin Farahnak, a special U.S. attorney for the District of Columbia, says that story included "first-time disclosures of classified information not intended for the public domain." According to Farahnak, the government has evidence that Comey "directed staff" to discuss "specific accuracy concerns" about a prior Reuters report on the same subject with Savage. In the process of doing that, Farahnak says, those FBI officials "illegally transferred classified information."
Comey's attempt to set the record straight, according to Trump's henchmen, was a felony punishable by up to 10 years in prison under 18 USC 793(d), an Espionage Act provision that applies to an official who "willfully" shares "information relating to the national defense" with an unauthorized recipient when he "has reason to believe" it "could be used to the injury of the United States." Comey also faces a charge of conspiring to violate Section 793, which likewise carries a maximum 10-year sentence.
If Comey's alleged disclosure was such a grave crime, you might wonder, why did it take a decade to charge him? Because two prior investigations of the same incident concluded that criminal charges were not warranted.
Beginning in March 2017, John Durham, the U.S. attorney for the District of Connecticut, looked into the genesis of the Times article. The investigation found that James Baker, then the FBI's general counsel, was one of the anonymous sources. Baker said he had acted under instructions from FBI Chief of Staff James Rybacki, whom he understood to be conveying Comey's wishes. Durham's investigation included interviews, emails, phone records, and consideration of the relevant statutes. In December 2018, Comey's lawyers note, Durham "wrote a classified memorandum outlining the investigation and recommending 'NO prosecution for Baker or anyone else.'"
The following month, the U.S. Attorney's Office for the District of Columbia "opened an investigation into the same subject matter," Comey's lawyers say. That investigation "was closed without any charges in February 2020" after the office "declined to prosecute."
Given the outcomes of those two investigations, the decision to charge Comey now stinks of desperation to slake Trump's thirst for revenge. According to Comey's lawyers, the tardiness of the charges also fatally undermines the case.
Federal law generally requires that prosecutors file charges within five years of the alleged crime. But the Internal Security Act of 1950 made an exception for Section 793, saying "an indictment for any violation" of that provision "may be found at any time within ten years next after such violation shall have been committed."
The charges against Comey "should be dismissed as time barred," his lawyers argue: "Section 19 of the Internal Security Act gives the government an extended ten-year limitations period in which to charge Section 793 offenses. But as Section 19 unambiguously states, the government may invoke that extended period only by obtaining a grand jury indictment. A criminal information—which the government can issue unilaterally without grand jury involvement—does not suffice. Because the default five-year statute of limitations for federal felonies has long since elapsed on the alleged offenses, and the government's information does not meet the express statutory requirement for an extended ten-year limitations period, the information is untimely and must be dismissed."
Whichever side prevails on that issue, no one should have any illusions that the Justice Department is pursuing the mission suggested by its name. "It remains unclear what [McFadden] will do with the matter and whether DOJ will even be able to secure an indictment—as required by the Constitution," Cato Institute legal fellow Mike Fox says in an emailed press release. "Should the matter proceed, it is unequivocally clear that this case is a vindictive prosecution—a classic case of lawfare by a weaponized Justice Department."
[1.] Defendant served its Notice of Subpoena Duces Tecum to non-party Mar-a-Lago Club, LLC ("MAL") seeking two discrete categories of documentation: (1) documents sufficient to identify the total number of applications for MAL membership from January 6, 2020, through January 6, 2026, and (2) documents sufficient to identify the total cost of membership and initiation fees for a new MAL applicant from January 6, 2020, through January 6, 2026. Defendant contends it needs this information for discovery purposes to generally contest Plaintiff's allegation of damages of "not less than $10,000,000,000."
The scope of discovery is broad, allowing each party to "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case…." Notably here, non-party MAL has neither moved to quash the subpoena nor raised any burdensome objections. In fact, the only issue before the Court is Plaintiff's contention that the subpoena seeks discovery outside the permissible scope of the amended pleadings.
The Court disagrees. The Amended Complaint alleges Defendant's defamatory actions "injured President Trump in his profession, occupation, and trade," "damaged President Trump in his occupation," and "damaged his professional reputation." As Chief Executive of the United States, it is publicly known that President Trump often carries out his presidential duties in MAL. See, e.g. President Donald Trump meets with Ukrainian President Volodymyr Zelensky at Mar-a-Lago.
Moreover, the scope of discovery is broader than the scope of admissibility. See Fed. R. Civ. P. 26(b)(1) ("[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable"). Plaintiff's argument that President Trump is not synonymous with and does not affect the financial success or failure of MAL may be well taken as it relates to the admissibility of the sought-after evidence, but at this stage in the proceedings, given MAL's relationship with the profession and professional persona of President Trump, Defendant's subpoena is a permissible basis of inquiry.
[2.] There can be no dispute that all parties, even some non-parties, must participate in the discovery process. This is especially true of a plaintiff who initiates the lawsuit and seeks affirmative relief.
Unsurprisingly therefore, Plaintiff does not dispute that he must sit for a deposition; the only point of contention is the timing of said deposition. Despite scheduling the deposition for October 16, 2026, President Trump unilaterally cancelled the deposition and did not offer alternative dates within the discovery period notwithstanding the quickly approaching December 18, 2026, discovery deadline. In light of this, the time for the deposition to occur is now….
President Trump shall sit for his deposition on or before December 11, 2026. Failure to do so may result in sanctions, including dismissal of the lawsuit. It is the Court's understanding that another extension of the discovery deadline may be sought. In the event Judge Kuntz grants such a request, the parties may agree to a mutually convenient date to conduct President Trump's deposition within the extended discovery period.
Charles David Tobin, Maxwell S. Mishkin, Maya Devi Gandhi, Richard W. Miller, Sasha (Alexandra) Dudding, and Yanni Chen (Ballard Spahr LLP) represent the BBC.
Happy Tuesday, and welcome to another edition of Rent Free. This week's newsletter includes stories on:
The Treasury Department's proposed rule for restricting large investor ownership of single-family housing.
The land use angle in the Texas Senate race.
Salt Lake's middle housing reforms.
The Populism-to-Paperwork Pipeline
Last Thursday, the U.S. Treasury issued a proposed rule that restricts large institutional investors from acquiring new single-family rental homes.
The proposed regulations are intended to implement large investor restrictions passed by Congress as part of its bipartisan housing bill, the 21st Century ROAD to Housing Act, that generally bans entities that already own 350 single-family rentals from buying new ones.
As I covered last week, the new rule primarily proposes definitions left of the text of ROAD and adds additional details about when large corporate buyers' build-to-rent and renovate-to-rent projects are exempt from the new restrictions.
Wonks and interest groups are digging through the details of the sprawling proposed regulations, but there doesn't seem to be major new policy shifts in the rule. It's mostly a bunch of paperwork requirements.
That's not how the Trump administration has framed the new proposed rule.
Hear Vice President J.D. Vance tout the new rules as saving the American dream of homeownership from "private equity barons."
The American Dream doesn't belong to Wall Street. It belongs to the American people.
Thanks to President Trump and Scott Bessent, families don't have to worry about getting out-bid on their dream homes by private equity barons. And we're making those same big investors give…
Also chiming in was Sen. Elizabeth Warren (D–Mass.), who had proposed much more sweeping restrictions on institutional investors when the ROAD Act was still working its way through Congress.
Our bill to stop private equity from buying up homes is now law.
Despite Donald Trump's refusal to sign it, his Administration must now implement it.
Despite the implication in Warren's post, Trump's decision to not sign the ROAD Act was not because of his apathy about the investor restrictions in it. On the contrary, the president had urged Congress to enact institutional investor ownership of single-family homes.
(His decision had more to do with his displeasure at Congress not passing the SAVE Act.)
As housing policy watchers will know, the backlash to corporate ownership of single-family rental housing has been a bipartisan populist concern for a while now.
Both right-wing Republicans and left-wing Democrats have argued that Wall Street investors are a primary cause of high housing costs and low housing availability. They are allegedly outbidding individual owner-occupiers for homes, thus condemning ordinary families to a life of perpetual renting.
It was notable that perhaps the only thing that Minnesota Gov. Tim Walz and Vance agreed on in their 2024 vice presidential debate was that "Wall Street" needed to be kept out of owning single-family homes.
Criticisms of restricting institutional investor ownership of single-family rentals are legion. The arguments generally boil down to the assessment that they are a small but beneficial presence in the single-family market.
The vast majority of new home sales still go to owner-occupiers. Families that can't get, or don't want, a mortgage but do want to live in a single-family home have the option of renting from one of the big guys. And large investors also add to the housing stock through build-to-rent developments and their renovation of dilapidated existing units.
Those arguments were convincing enough to get a much more sweeping institutional investor ban initially included in ROAD (which would have required investors to proactively sell off their portfolios and effectively kill the build-to-rent sector in the process) pared back into something far more modest.
The final result is the paperwork requirements the Treasury released last Thursday.
One can see that as a positive development. The housing market would have been made much worse if Congress had decided to kill build-to-rent housing.
On the other hand, we're still left with a bunch of bureaucratic busywork requirements that will add compliance costs to the business of single-family rentals but don't make anyone better off.
Populist backlashes typically target large, seemingly alien institutions that are allegedly crushing ordinary people, big bureaucracies, large capitalists, etc.
It's a bit ironic then that the new investor restrictions informed by that populist backlash and outlined in the Treasury's proposed rule largely leave the capitalists and bureaucrats in place while requiring them to shuffle a lot of paperwork between themselves.
The Data Center Angle in the Texas Senate Race
A long-time electoral advantage for the Texas GOP has been the state's status as a growth machine under its rule.
Over the past three decades, Republicans have won every statewide race in the Lone Star State partially on the argument that they've delivered a remarkable degree of economic growth.
Yet this year, in a political environment that's exceptionally bad for Republicans, Democrat James Talarico appears poised to best Republican Ken Paxton in the Texas Senate race and finally turn the state blue.
There are a lot of reasons that could explain why the polls are giving Talarico a slight edge over Paxton. One that I explore in my new profile of Talarico (which was published today) is that a backlash to data center development is souring Texas voters on economic growth generally and the party that claims to have delivered it.
There's not much about housing in the profile. But there are a couple of interesting housing-adjacent themes explored in it that Rent Free readers might find interesting.
The first is that loose land use controls are a primary reason that Texas has become a major location for data center development. The second is that even places with very pro-growth political cultures and policy regimes can still experience sudden, sweeping anti-growth backlashes.
Public support for "abundance" of new housing or new commercial development can't ever be taken for granted.
Salt Lake City Waters Down Zoning Reforms
Last week, the City Council of Salt Lake City, Utah, proposed paring back a set of zoning reforms that are intended to allow more smaller homes to be built in existing single-family neighborhoods.
Under the original proposal, property owners would have been allowed to add accessory dwelling units on more parcels. Relaxed lot size, height, and setback requirements would have also allowed builders to add smaller homes and duplexes in single-family neighborhoods.
These are all pretty standard "middle housing" reforms. They provoked the standard criticism that quiet, tidy single-family neighborhoods would be swamped by out-of-scale development.
Now the city council is considering pairing the zoning liberalization with an owner-occupancy requirement. Anyone attempting to use the reforms to build new housing would also have to live on-site.
Owner-occupancy requirements often act as a major "poison pill." They effectively exclude professional developers from buying up parcels and adding new housing on them. Instead, homeowners (most of whom are not professional builders) will be the only ones who can make use of the new rules.
If the council does include an owner-occupancy requirement in its zoning reforms, it can expect a lot fewer units to be built.
Quick Links
President Donald Trump has issued a new housing affordability executive order, which largely attempts to make mortgages obtained or secured by federal programs cheaper for borrowers.
D.C. Councilmember Robert White has proposed a pilot program that would have delinquent tenants go to mediation with their landlords if they owe less than three months of rent.
Americans for Prosperity has a new analysis of a Massachusetts ballot initiative that would allow homes to be built on smaller lots.
Do you have a right to privacy on public roads? Hoover fellow and Stanford legal scholar Orin Kerr joins me in this episode to discuss Flock cameras, the networked license plate readers fueling debate over police surveillance. We discuss how the Fourth Amendment applies to tracking people's movements; whether police should need a warrant to search camera databases; how to balance investigative benefits with the potential for abuse; and what we still don't know about these tools' effectiveness in protecting public safety.
Jane Bambauer, my regular cohost, couldn't join us this episode, but will be back as usual in the next one. And also check out our past episodes:
From today's opinion in Jackson v. Thomson Reuters Am. Corp., by Fourth Circuit Judge Paul Niemeyer, joined by Judges Steven Agee and Pamela Harris; the law covers :
West Virginia's Daniel's Law …, which is designed "to enhance the safety and security" of judicial and law enforcement officials, prohibits the disclosure by any person or entity of the home addresses or unpublished telephone numbers of … {"any active, formerly active, or retired judicial officer, prosecutor, … public defender, … or law-enforcement officer"} if a reasonable person would believe that such a disclosure would create a risk of harassment or harm. The law authorizes protected persons to bring a civil action for damages….
As distinct from the Daniel's Laws in other States, … West Virginia's version does not require that the Covered Person, upon discovering an improper disclosure, notify the person or entity that disseminated the information and request that the person or entity delete the information before liability arises. In addition, for liability to arise under West Virginia's version, the person or entity need not know that they have disclosed a Covered Person's information. The only limiting principle of § 5A-8-24(e) liability is that the information must have been disclosed "under circumstances in which a reasonable person would believe that providing such information would expose another to harassment or risk of harm to life or property." …
For generations now, home addresses and telephone numbers have been disseminated to the public, initially through Whitepages and Yellow Pages and now through "people search" services on the Internet. The public has thus long had the facility to look up the name of a person and obtain that person's address and telephone number. Sharing that information has been the gateway to communication and the exchange of ideas or messages that have long been protected by the First Amendment. In the digital age, such information may now be shared with greater efficiency, but the tradition continues with the understanding that it is protected speech.
In a similar vein, it has long been custom and practice to record for public examination the names and addresses of persons buying, selling, and financing real property. And it has been the tradition to share publicly information about taxes, appraisals, liens, and voting.
To be sure, while the dissemination of such information is protected speech necessary to the exchange of ideas, it can also contribute to abuse and the pursuit of harmful and, indeed, malicious ends, as exemplified by the murder of Daniel Anderl. To address such abuse, governments have enacted laws like Daniel's Law in an effort to restrict the dissemination of home addresses and unpublished telephone numbers of specified public officials who serve in roles important to society. And the parties here agree that those governments have a compelling interest in enhancing the safety and security of such officials. The task, therefore, is to draw an appropriate line between protecting the dissemination of such information while, at the same time, excepting from dissemination the same information when it creates a potential for harm of specified public officials.
Because of the high value that our Constitution and longstanding practices place on the free dissemination of information and the exercise of free speech, we draw the line with the greatest caution, requiring that governments regulate speech about the home addresses and telephone numbers of designated public officials in a manner that is the least restrictive of speech.
In this case, West Virginia was fully justified in attempting to regulate such speech in light of the compelling government interest in enhancing the safety and security of certain public officials, but its efforts reached more broadly then necessary to accomplish the task; it did not employ the least restrictive means of doing so. For that reason and only that reason, we agree with the district court that West Virginia could have regulated more narrowly to accomplish its purpose and thereby be less restrictive of what is otherwise protected speech. Thus, we agree that the provision of West Virginia's Daniel's Law at issue here … violates the First and Fourteenth Amendments.
The court concluded that the law is a speech restriction, not just a restriction on "data":
[Jackson argues] that speech must be communicative such that it "convey a particularized message" with "the likelihood … that the message would be understood by those who" received it. Since Daniel's Law regulates disclosures of "pure facts" that lack a particularized message, he argues, the law is not subject to any First Amendment analysis….
[But] the Supreme Court has clearly held that the scope of "speech" regulated by the First Amendment is broader and includes data, reasoning that facts are "the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs." Sorrell v. IMS Health Inc (2011). Indeed, the Court has noted more specifically that statutes like West Virginia's Daniel's Law, which address only the disclosure of information, involve the regulation of speech protected by the First Amendment, observing, "If the acts of 'disclosing' and 'publishing' information do not constitute speech, it is hard to imagine what does fall within that category …." Bartnicki v. Vopper (2001).
The court then concluded that the law was content-based:
West Virginia's Daniel's Law …, on its face, distinguish[es] between different disclosures based on communicative content alone. It restricts disclosure of certain kinds of information (home addresses and unlisted telephone numbers), and it does so for certain individuals (judicial and law enforcement officers and their families)….
This means, for example, that a disclosure that a grocery store clerk lives at 100 Main Street is permitted, while a disclosure that a police officer lives at 100 Main Street is prohibited. The only difference between the two disclosures is the communicative content, or what the disclosures mean. In the hypothetical, the latter disclosure is prohibited because it identifies 100 Main Street as being the home address of the police officer, while the earlier disclosure is permitted because it identifies 100 Main Street as belonging to the grocery store clerk.
The court held that the law wasn't limited to "commercial speech" (which generally refers to commercial advertising), a category of speech that is entitled to lower protection:
While a speaker's economic motivation for speech may be a relevant factor in determining whether speech is commercial, economic motivation alone is insufficient to justify a categorization of that speech as commercial. Furthermore, because, even under Jackson's argument, only some of the regulated speech would be commercial, that fact does not render the law subject to the intermediate scrutiny of commercial speech. When a statute "applies with equal force to both commercial and noncommercial messages" with "no exception for noncommercial speech," the fact that some of the regulated speech is commercial does not justify an application of intermediate scrutiny….
And the court held that the law, as a content-based speech restriction, had to pass strict scrutiny, which is to say that (among other things) it had to be the "least restrictive means" of serving a "compelling government interest"; and the court held that the law failed such scrutiny:
[T]he parties agree, as do we, that the law's purpose of enhancing the safety of judicial and law enforcement officials is a compelling government interest …. [But] West Virginia's Daniel's Law does not employ the least restrictive means of serving the law's purpose.
Section 5A-8-24(e) imposes liability on a data broker immediately upon its disclosure of addresses and telephone numbers, regardless of whether the data broker had knowledge that the information related to Covered Persons. Whenever an entity such as a data broker collects names and addresses of all persons in a particular town using public land records and then publishes that information in some form of a directory, it undoubtedly violates the law because that directory includes, albeit unknowingly, information about, for instance, a police officer or public defender…. When a restriction on speech creates liability without a knowledge requirement, speakers are understandably incentivized to engage in self-censorship to avoid inadvertently incurring liability. See Counterman v. Colorado (2023) (noting that "prohibitions on speech have the potential to chill, or deter, speech outside their boundaries")….
Jackson argues, however, that the law is much more limited because it imposes liability only if "a reasonable person would believe that providing such information would expose another to harassment or risk of harm to life or property."
That provision, however, is hardly limiting, … because every disclosure of a person's name and address on the Internet exposes that person to harassment or a risk of harm…. [Indeed, in his complaints, Jackson] alleged that the mere disclosure of home addresses and unpublished telephone numbers "exposed [him] and his peers to harassment and/or risk of harm to life or property." And to support that unremarkable proposition, he quoted the FTC's report on "Data Brokers," which highlights the "potential risks to consumers from data brokers' collection and use of consumer data," including the fact that "people search products can be used to facilitate harassment, or even stalking, and may expose domestic violence victims, law enforcement officers, prosecutors, public officials, or other individuals to retaliation or other harm." Indeed, Jackson added that the FTC's report explains why the defendants' disclosures are "so dangerous." Thus, the argued "limitation" in § 5A-8-24(e) is actually not limiting but universal, as it is inevitable that every disclosure of personal information on the Internet poses an additional risk of harassment or harm to the person whose information is disclosed.
Additionally, States other than West Virginia that have enacted Daniel's Laws have uniformly required that, before liability attaches to a disclosure of home addresses and unpublished telephone numbers, Covered Persons give notice of their request that the data broker (or any other disclosing party) remove the information. Only on the failure to comply does liability attach. But West Virginia's Daniel's Law alone does not require notification as a precondition of liability. Thus, this aspect of the law fails to provide the least restrictive means of furthering the law's compelling interest.
While we hasten to note that requiring notice prior to imposing liability is one method for narrowing the law, it is not the only way. But it is the way that Congress and virtually every other State has chosen to narrow their laws and render them less speech-restrictive.
At bottom, we agree with the district court's conclusion:
[D]ue to its lack of a notice requirement, [§ 5A-8-24(e)] of West Virginia's Daniel's Law is far more restrictive then its comparators [in other States] and is definitively not the least restrictive means of achieving its compelling interest. Section [5A-8-24(e)] of West Virginia's Daniel's Law therefore fails strict scrutiny even as other more narrowly tailored federal and state statutes aiming at the same compelling interest pass constitutional muster….
The paragraph endorsing the district court's conclusion strongly suggests that the panel endorsed laws limited to situations where a covered person first demands that covered material be removed. But it's not clear whether the panel would endorse broad versions of such laws, which apply even when the address or phone number is relevant to a matter of public concern (see Kratovil v. City of New Brunswick(N.J. 2025), which upheld such a broad law), or whether it would insist that there be an exception for such public-concern situations (as there is in the federal version of Daniel's Law).
Samir I. Deger-Sen (Latham & Watkins LLP) argued on behalf of the defendants.
Hello and welcome to another edition of Free Agent! It's a great day to pour a Miller Lite out.
Let's talk about the NFL invasion of Australia and, soon, Japan. Is it the real deal or is something else at play? Then we'll close with the results of our reader survey about the World Series.
Sen. Ted Cruz (R–Texas) got booed when he presented the winners trophy at the Formula 1 race in Austin, Texas. Local politicians presenting these trophies has always been my least favorite part of F1.
After committing billions of dollars to a new football stadium, plus renovations for an arena and a baseball park, some D.C. politicians now wants taxpayers to spend $300 million on more seats and a roof for a soccer field that opened less than a decade ago.
The NFL's Push Into Australia and Japan Makes No Sense
Football in Europe is one thing—football in East Asia and Australia is another.
After the NFL played its first regular season game in Australia in Week 1, Commissioner Roger Goodell now says the league may double-down on working its way into East Asia and Australia. "Tokyo is clearly on our list, whether it's next year or the year after," Goodell told NFL Daily. "It's coming at some point in the near future." Another league administrator said they're considering a 10th international game next year, up from nine this year. The idea, one might think, is that by playing a game in Australia, Japan, or any other country, people with a tepid interest in the NFL become swarms of dedicated fans.
It won't work—at least not in the Eastern Hemisphere. The league is much too dedicated to the Eastern Time Zone for it to work. Consider the NFL's main kickoff times (the end of daylight saving time will soon alter these slightly).
Thursday Night Football: 8:15 p.m. Eastern, 9:15 a.m. Friday in Tokyo, 11:15 a.m. Friday in Sydney.
Sunday early afternoon: 1 p.m. Eastern, 2 a.m. Monday in Tokyo, 4 a.m. in Sydney.
Sunday late afternoon: 4:25 p.m. Eastern, 5:25 a.m. Monday in Tokyo, 7:25 a.m. in Sydney.
Sunday Night Football: 8:20 p.m. Eastern, 9:20 a.m. Monday in Tokyo, 11:20 a.m. in Sydney.
And so on for Monday Night Football.
Even the Super Bowl, the league's biggest event that we're always told is watched by millions of people in every country around the world, kicks off around 6:30 p.m. Eastern. That's 8:30 a.m. on Monday morning workday in Tokyo and 9:30 a.m. in Sydney. You'd have to be an American expat or an extremely dedicated foreign fan to watch—they exist, to be sure, but they're notable because they're a rarity (like my man @KoreaPistonsFan).
This is not like how American sports fans wake up on a weekend morning with nothing else going on and tune into European soccer matches—the NFL is hoping people will wake up in the middle of the night for an East Coast afternoon game, or tune in during their workdays for what we in the U.S. would consider a primetime matchup. (In Japan, watching every week appears to require an expensive subscription, whereas Australians at least seem to bundle many of the games into other packages like Disney+.)
Ask yourself: Are you frequently waking up at odd hours to watch the Australian Football League or J1 League soccer? Are you watching your favorite sports team in the middle of the workday? OK fine, if you work a flexible desk job like me, you might be tuning in for your baseball team's day games or throwing a golf major on your second screen. When I posted about this on X, people angrilyresponded that Japanese fans routinely watch baseball during the day—OK, fine, call me when the NFL gets its Shohei Ohtani.
But I'm not getting up at 2 a.m. to willingly start watching a sporting event, unless I'm studying abroad in London and the Tigers are in the playoffs for the second time in my life. While I don't miss a Formula 1 race, when they're on in the middle of the night I watch the next day—sometimes, but not always, without seeing any spoilers online.
The NFL will almost certainly sell out a game in Tokyo, but tickets aren't where the real money comes from, it's TV revenue they're chasing. That, and the 8:35 p.m. Eastern kickoff time for this season's Australia game (10:35 a.m. local, Friday), tell you who the real audience is.
It's you, my humble American friends.
The novelty of games in London and Germany is wearing off. The NFL thinks it can throw a game in Japan, sell it to Netflix for $100+ million, and then, most importantly, put it in primetime for the American East Coast.
The NFL might be hoping their football games in Australia and, soon, Japan, will create broader interest from those countries. What they're almost certainly more interested in is getting U.S. fans to watch another primetime game that the league can make hundreds of millions of dollars from in TV rights.
Readers Want a Brewers World Series Victory. Here's Why.
A lot of you must be pretty pleased with how baseball is going. About 70 percent of you said you're rooting for the Milwaukee Brewers, who now have a 3–0 lead in the World Series after battering the Tampa Bay Rays 10–1 on Monday night.
I, for one, am also rooting for the Brewers but had at least hoped for the teams to make it a little more interesting (at least Game 1 and Game 2 were close!). Both teams have managed to find pretty consistent success in recent seasons and "deserve" to be here, despite both being in fairly small markets and often up against more well-funded divisional opposition. Both, unfortunately, play in stadiums that are for some reason fully or partially owned by local government. But the Brewers, unlike the Rays, have good vibes, a great color scheme (I'm a sucker for navy–yellow/gold), and a strong fan base that deserves happiness.
The survey answers behind the Brewers were wide-ranging, from "The beer and cheese are better!" to "Beer. The answer is always beer." (Shoutout to whoever said "Channeling my inner Sarah Palin, I can see Milwaukee across Lake Michigan from my house in Grand Haven.") Several more said they are from Milwaukee, are from the Midwest, are just glad the Brewers beat the Dodgers, or think a "northern" team should win. A couple Red Sox fans chimed in to say they just hate the Rays.
The Rays, to be fair, might be seen as less objectionable because they have fewer fans to annoy everyone else with their success. No one, I assume, is climbing any street poles to celebrate if the Rays win the World Series (we may never know!). But we did get a few Tampa locals to chime in, and a couple Brewers haters, and one person who I sympathize with: "I have a dear friend who has been a Tampa Bay fan since the very beginning. She deserves a victory." Seems like she will be waiting at least one year longer.
The Brewers seem almost certain to be World Series champions going into what will likely be a brutal MLB lockout. Let us hope there are no games lost—any 2027 World Series champion is better than no champion, or season, at all.
Replay of the Week
Keep your eye on No. 5 car. Drivers don't usually go from 1st to 11th to 1st all in the span of one lap! (And since everyone turned out all right, you can also enjoy the carnage of this big crash.)
Will Bibi survive? Israelis head to the polls today for the first election since the October 7, 2023, attacks. The election is widely seen as a referendum on Benjamin Netanyahu's, or Bibi's, governance. Supporters say the last few years have been a success, as he "seized half of Gaza, dramatically expanded West Bank settlements, decimated Hezbollah in Lebanon and coaxed President Donald Trump into going to war against Iran," perThe Washington Post—"all while offering a full-throated defense of Israel against accusations of war crimes and genocide."
But "many of those who seek change have rallied around the bloc led by Gadi Eisenkot, a centrist former military chief who, according to final polls this week, was running slightly ahead of Netanyahu," reportsThe Washington Post. "Heading a sprawling bloc that ranges from Naftali Bennett, a former prime minister who once managed a West Bank settlement council, to Yair Golan, a retired general known for his dovish views toward Palestinians, Eisenkot has pledged to investigate Netanyahu over his response to Oct. 7, to force the ultra-Orthodox to enlist and to rein in violent settlers in the West Bank." Eisenkot says the war against Hamas has been a failure, since the terrorist group is still in power. He is in opposition to some of the far-right alliances Netanyahu has made and broadly critical of Netanyahu's wartime leadership.
So far, turnout has been extremely high, the highest in 45 years—though the day isn't over yet; at publication time, it's about 3:30 p.m. in Israel. Polls close at 10 p.m. An estimated 70,000 Israelis have returned from overseas to cast their votes.
Here's how Israeli elections work, courtesy of The New York Times: "Every party creates a ranked list of its candidates, and voters choose a party or slate. The leader of the party with the most votes could become the country's next prime minister—though it is not automatic—if that candidate can form a government, but the parliamentary system is complicated and involves extensive negotiations.…No single party has ever won a majority of votes, which means parties must form factions and party leaders try to forge a governing coalition of at least 61 lawmakers. Within seven days of the official election results being announced, Israel's president, who plays a mostly symbolic role, meets with elected representatives of the parliamentary factions. Israel's president, Isaac Herzog, will assign a member of the Knesset—usually the leader of the party or faction that has won the most seats—to form a government." That person gets roughly a month to negotiate with potential allies and form a government; if they fail, another person gets picked to attempt the process.
"If a candidate who has been selected to form a government can propose one, along with a policy agenda," continues the Times, "and their proposal wins a plurality of votes in the Knesset, the government is formally invested, and that candidate becomes the prime minister."
"If neither Netanyahu nor Eisenkot can form a governing coalition in the 120-seat parliament," reports Reuters, "Netanyahu could stay on as caretaker until another election is held. His opponents have managed to wrest him from the premiership only once since 2009, and that took four inconclusive elections in two years. He was back 18 months later." So, Netanyahu seems unlikely to win outright, but likely to still be in charge at the end of all this—very much not a mandate, and something that would probably trigger elections again next year.
Kalshi and Polymarket betting markets seem fairly confident that Eisenkot will emerge victorious; polls are less optimistic.
Who's in charge in Israel, and how much of a mandate they believe themselves to have, matters an awful lot when it comes to American policy in the Middle East; tensions with Iran are still high, and though it's receded from view to some degree, shipping is still snarled in the Strait of Hormuz, with no resolution in sight. Given the complexities involved with forming a government, we're not going to get a clear answer for a while, but we will get some indications over the next few days as to how Israeli citizens are thinking about Netanyahu, his legacy, and the path forward.
Scenes from New York: "Many young professionals in their 30s have reached a breaking point in recent years and moved away in droves to raise families—contributing to an enrollment crisis in New York City's school system," reportsThe New York Times in an interesting reported piece on people in their 30s struggling to make ends meet and delaying milestones like getting married, having kids, and owning their own places. "Am I entitled to have what my parents had? I'm not sure," said one 31-year-old schoolteacher out in Queens. "But it's hard to know that I can't [have it]."
I don't think these people are totally off base; the tradeoffs are intense right now, with rental costs growing ever more wild. It's a shame most New Yorkers don't seem to understand the relationship between market-distorting policies (like rent control and stabilization) and housing costs getting so out of whack, and increasingly favor handouts (free daycare) to alleviate the strain they feel from the high cost of living.
QUICK HITS
DoorDash is in talks to acquire Instacart; will someone please do a wellness check on Elizabeth Warren?
"While global tech stocks teeter, in China they have already crashed as lofty valuations collapse under worries about AI demand and curbs on Chinese exports," reports Reuters. "The meltdown, tanking the mainland STAR50 index, of AI and semiconductor leaders by 40% in less than four months and vaporising some $480 billion in market value, is an ill omen for wobbly world markets and a dampener on China's efforts at encouraging its savers into stocks to fund the AI boom."
"Most classrooms, most of the time, are nonideologically muddling along with a mix of lecture and activities—just like most classrooms, most of the time, are nonideologically muddling along with a mix of phonics and guess-and-bluff reading strategies," writes Kelsey Piper for The Argument on school curricula. "That means that fixing classrooms takes more than bold truth-telling about what works. It's going to take changing how we teach teachers, acquire curricular materials, and measure results."
"Clashes erupted in Paris as a mass march drew to a close Saturday, with more than 400,000 people rallying across France over school funding and soaring living costs in a fresh challenge to President Emmanuel Macron," reports the Associated Press. "Police made nearly 1,000 arrests, the government said."
Don't miss this week's Reason Roundtable!
As for me and my house, we will cook up amazing hockey-themed parties and never let the AI overlords take this from us:
I cannot be replaced by A.I. became I come up with extremely niche and/or ridiculous themes. i.e. Fourth birthday party for my son was "Miracle on Ice, USA vs. Soviets 1980 Olympics at Lake Placid" (we painted the hockey players together, which is why they're, uh, imperfect) https://t.co/P4NvKaIPjypic.twitter.com/JhwJCTDdYa
Last week, President Trump signed into law the Romance Scam Prevention Act that Congressman David Valadao (CA-22) introduced and that received bipartisan sponsorship. In short, this new federal law requires dating apps and services to notify users who have interacted with someone who was removed for fraudulent activity.
The scale of romance scams is enormous, with Americans losing $1.5 billion in 2025 as per the FTC and global losses coming in yearly at over $1 trillion. Dating apps play a significant role in the phenomenon because they present predators with the perfect pool in which to fish for victims. According to a year-long investigation whose results were released in recent weeks, U.S. Sen. Maggie Hassan concluded that Match Group has greatly lagged behind in its efforts to implement the best technological safeguards available. This is especially relevant because Match Group (which controls most of the best-known dating apps such as Tinder, Hinge, and OkCupid) continues to dominate the dating app market and hence its failures put many users at risk.
The new legislation may help users who are still in touch off-app with fraudsters who have been removed. That is a very narrow slice of users, however, and the system largely depends on whether dating apps effectively remove said fraudsters in the first place. The Romance Scam Prevention Act, however, places no obligations on apps to remove fraudsters or to prevent their joining apps in the first place. It is theoretically possible that the passage of even this fairly weak dating-app-related legislation, in conjunction with the issuance of Sen. Hassan's report, will put some pressure on apps and signal that stricter laws could follow if they don't improve their safety measures. As of now, however, the new law itself is unlikely to stop more than a minimal percentage of romance scams.
Last, it is worth mentioning that financial harm to dating app users, while very important, is far from the only damage resulting from dating apps' continued lackluster use of safeguards. For a crucial example, according to a Columbia Journalism Investigations survey, one third of women who use dating apps report having been sexually assaulted or raped by someone they met on an app. Neither the Romance Scam Prevention Act nor other congressional action so far addresses these many acts of violence or other related harms.
The Supreme Court is asked to review several thousand cases each year. It agrees to review fewer than 1% of them. It takes four votes of the nine to decide to review a case. (The grant of review is generally called a "grant of certiorari" or just a "cert. grant.")
Sometimes Justices write opinions dissenting from a denial of cert., arguing that the Court should have taken the case. And sometimes they write opinions respecting the denial of cert., explaining why it made sense to deny review in this case but noting that the Court ought to consider the question in future cases.
Such opinions are often solo opinions, and are sometimes signed by two or three Justices from the liberal or conservative wings of the Court. But it turns out that Justices Sotomayor and Gorsuch have also jointly filed nine such opinions, eight just for themselves and one for themselves plus Justice Kagan. All of them, it seems to me, at least suggest that the Court ought to move the law in a somewhat more government-restrictive direction (loosely speaking); most of them specifically point to somewhat broader constitutional rights protections. Prompted by two such opinions earlier this month, I thought I'd note the cases and the issues they involved.
O'Donnell v. City of Chicago, Illinois (Oct. 19, 2026): "whether, and under what circumstances, exercises of the State's police power are immune to takings claims," specifically as to uncompensated forfeiture of vehicles for drivers' "fail[ure] to pay" parking tickets.
Herrera-Salazar v. United States (Oct. 13, 2026): whether a defendant's being punished under criminal immigration statutes "for being found in the United States a second time," when a supervised release condition barred him from "leav[ing] the Eastern District of Oklahoma" was proper as a matter of substantive federal criminal law, and whether it violated the Double Jeopardy Clause.
Gonzalez v. United States (2025): "whether and to what extent the Fourth Amendment" forbids warrantless arrests for misdemeanors that took place outside the presence of the arresting officer.
Baker v. City of McKinney (2024): "whether the Takings Clause requires compensation when the government damages private property pursuant to its police power" in a stand-off with a fugitive.
ACLU v. U.S. (2021): whether there is a "right of public access" (even if limited) to opinions of the Foreign Intelligence Surveillance Court.
Longoria v. U.S. (2021): whether and when the government may decline to ask the court for a sentencing reduction under a guideline encouraging defendants to timely notify prosecutors of their intent to plead guilty.
Bovat v. Vermont (2020): whether game wardens' "initial visit and search" of Bovat's property (which involved "linger[ing]" for fifteen minutes and "peering" through a garage window to spot evidence) violated the Fourth Amendment (Justice Kagan also joined the opinion).
Hester v. U.S. (2019): whether "a jury [must] find all the facts needed to justify a restitution order" under the Sixth Amendment.
Stuart v. Alabama (2018): whether the government violated the Sixth Amendment by "deny[ing] Ms. Stuart the chance to confront the witness who supplied a foundational piece of evidence in her conviction" (a blood-alcohol test on which another witness relied).
Thanks to my research assistant, Robert Muñiz, for preparing the list.
One of the more interesting developments at the U.S. Supreme Court in recent years has been the rise of a kind of sporadic alliance in defense of civil liberties between Justices Sonia Sotomayor and Neil Gorsuch.
In 2018, for example, Gorsuch, joined by Sotomayor, blasted the Supreme Court for refusing to even hear arguments in Stuart v. Alabama, an important case about forensic evidence, criminal trials, and the Sixth Amendment right to cross-examine one's accusers.
Similarly, in United States v. Davis (2019), Sotomayor joined Gorsuch's majority opinion striking down a federal law that called for enhanced sentencing when a gun was used in connection with certain federal crimes because the law at issue was too imprecisely written to pass constitutional muster. "When Congress passes a vague law," Gorsuch wrote, "the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again."
Gorsuch and Sotomayor have also been on the same page in a number of Fourth Amendment cases, though Sotomayor's overall Fourth Amendment record is arguably stronger than Gorsuch's. In Torres v. Madrid (2021), for instance, the Supreme Court held that when the police shoot a fleeing suspect, it still counts as a "seizure" for Fourth Amendment purposes even if the suspect kept on the move after being shot. "The application of physical force to the body with the intent to restrain is a seizure," the Court held, "even if the person does not submit and is not subdued." Sotomayor joined that pro-civil liberties decision; Gorsuch, along with Justices Clarence Thomas and Samuel Alito, sided with the officers and voted in dissent.
Fortunately, the Gorsuch-Sotomayor band was back together last week to make some noise in support of the Bill of Rights in a dispute that pitted property rights against police powers. As Reason's Billy Binion reported, the Supreme Court declined to hear a case challenging a lower court's "categorical rule" that "property destroyed in the exercise of [a state's] '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."
Sotomayor, joined by Gorsuch, strongly implied that she thought the lower court's rule was unconstitutional, though she accepted that "further percolation" on the issue was needed before the Court should step in. "Where, as here, a person alleges a 'classic taking in which the government directly appropriates private property for its own use' or to pay an outstanding debt, like a tax lien," Sotomayor wrote, "the talismanic invocation of the State's 'law enforcement authority,' may be insufficient to avoid the requirement of just compensation." (Citations omitted.) Sotomayor then urged the lower courts that are "considering this issue to take care that due deference to state police powers does not eclipse constitutional rights."
Just as Gorsuch's Fourth Amendment record has its blemishes, Sotomayor's record on property rights has also been less than impressive at times. So it is doubly welcome to see these two justices back in the trenches together on this particular civil liberties front.
Elsewhere in the Law
Writing at SCOTUSblog, Anastasia Boden, a senior attorney at the Pacific Legal Foundation, has an interesting article about the Supreme Court's landmark 1926 decision in Euclid v. Ambler, in which, as Boden put it, the Court ruled in favor of a town's "power to pass comprehensive zoning, and against a local developer who had argued the town's plan exceeded the city's police power and destroyed the property's value." In effect, the Court's ruling was "the birth of modern zoning."
One of the things that has long fascinated me about Euclid v. Ambler is the fact that the opinion was authored by Justice George Sutherland, who is probably best remembered today for his role as a leading judicial foe of President Franklin Roosevelt's New Deal. In Euclid v. Ambler, however, Sutherland endorsed a view of regulatory authority that has been celebrated by liberal academics as "a model of pragmatic and well-balanced Progressive jurisprudence."
I suppose we might call it an irony of legal history: The intellectual leader of the Supreme Court's anti–New Deal bloc actually left a greater mark on the law by shoring up the immense power of city planners.
President Donald Trump has long been associated with lust. The 2016 election prominently featured "the Access Hollywood tape" in which he can be heard boasting about grabbing women "by the pussy." But recently, his affections have turned to men.
"I examined his ass," Trump said of Sen. Jon Husted (R–Ohio) at an October 17 rally. "I examined his ass. And then I looked at his shoulders; I looked at his feet; I looked at his hand; I looked at his jawline." He liked what he saw.
There is one candidate, however, whose ass appears to be safe from the president's admiration. "He may not dress right. He may not talk exactly perfectly, and he may not be the best-looking guy I've ever seen," Trump told the crowd on the first night of the GOP midterm convention in Dallas, Texas. Even still, "he deserves to be your next senator."
Such was the pitch for Ken Paxton, the Texas attorney general asking voters to promote him to the U.S. Senate. It has been a tough sell, much more so than is typical for a Republican fighting to represent Texas on the national stage. His opponent, state Rep. James Talarico of Austin, has often led in the polls in a place where a Democratic Senate victory would usually be relegated to liberal fever dreams. As A.G., Paxton has been dogged by an impeachment and by longstanding accusations, including from within his party, that his ethics compass is all but demagnetized.
There is another potential obstacle in his way, something Trump hinted at repeatedly in his Trumpian way over the course of that two-day convention. The main characters in the MAGA movement often have a kind of crass charisma—not necessarily a literal beauty, but certainly a talent for performance and presentation. This is a theme in populist movements for a reason: It's the people versus the elite, the outsiders versus the establishment, us versus them. So too can it serve as a helpful distraction when policies' practical results fail to match the promises made, as well as when allegations of corruption surface.
Paxton has the baggage with fewer obvious tools to combat it. And yet if one word best describes him, it may be survivor.
One Scandal After Another
Paxton had been Texas' top law enforcement officer for about six months when he became a defendant.
In July 2015, a grand jury indicted him on three felonies. The charges—two counts of first-degree securities fraud and one count of third-degree failure to register as an investment adviser—concerned work he had done while in the Texas House of Representatives. As state representative for part of Collin County, he convinced investors to put hundreds of thousands of dollars into Servergy, a tech startup, while allegedly failing to disclose that he was paid to attract those very investments.
A state attorney general showing up for a mug shot reverses the typical arrangement. Still, there were signs that this was on the way. In 2014, while Paxton was a state senator, the Texas State Securities Board disciplined him and fined him $1,000 for not completing the required registration to solicit investors. But while the criminal investigation delving into the full scope of alleged misconduct had been announced to the public, it was put on hold until after the election so as not to potentially sway the outcome.
It did not sway the next one either. Paxton was reelected in 2018. But that run-in with the law turned out to be just the beginning.
In 2020, the scandal that would come to define his career began to take shape. Several senior officials from Paxton's office went to the FBI to report him for what they said was an inappropriate and illegal relationship with his friend Nate Paul, an Austin real estate developer who was already under federal investigation.
Paxton, the officials said, had leveraged his office to help Paul in various legal disputes, such as foreclosure proceedings. They also alleged that the attorney general had deployed a special prosecutor to go after Paul's enemies. Paxton denied the accusations. He was reelected in 2022.
"These were upstanding people that Ken Paxton himself had hired because of their conservative bona fides. And yet they all left stating, 'I don't want to have anything to do with this guy,'" says one Republican official who worked alongside Paxton in the Texas government. "It's basically the story of Ken Paxton in my mind. If he doesn't cross the line and literally break the law, he constantly skirts it. And therein lies the problem.
"Now, that's not me saying that he doesn't break the law," the official continues. "I'm just saying that is kind of his MO."
The following year, the Republican-led Texas House of Representatives impeached Paxton for conduct related to the same scandal. The information aired during his trial, particularly as it related to his love life, arguably made the biggest impression on the public consciousness. Paul, it seemed, had set up a fake Uber account under the name "Dave P." It had a mysterious habit of summoning cars to pick up a passenger a block from Paxton's house so it could travel to the apartment of Laura Olson, Paxton's girlfriend.
This was complicated, because Paxton also has a wife, Angela Paxton, herself a member of the Texas state Senate. That body would go on to acquit Paxton of impeachment in September 2023. Angela announced two years later that she was filing for divorce "on biblical grounds."
As for that 2015 criminal indictment, the attorney general was set to go to trial in April 2024, after a series of protracted delays, when he cut a deal at the 11th hour. He would pay restitution and do community service, and in exchange, the prosecutors ultimately dismissed the charges. Had he been convicted, he faced decades in prison, and, per his own guidance, he would likely have been precluded from running for public office in Texas again as a felon.
Paxton declared his candidacy for the U.S. Senate the next year.
A Blunt Instrument
Paxton's knack for survival has long baffled onlookers. "The guy's ability to take shots and just keep moving on and stay in elected office is unlike anything I've ever seen in my career in 25 years of running campaigns," Ash Wright—previously a senior adviser to George P. Bush, who invoked the incumbent's mug shot in a 2022 bid to be attorney general—told the Associated Press in July.
How he does that is a matter of some mystery, given he does not possess the showmanship the president favors. One answer might provide a window into how the Republican Party has evolved in recent years. What Paxton may lack in stage presence, he makes up for in a willingness to use his office as a performative blunt instrument.
The attorney general's lengthy tenure has been consumed almost entirely by two categories: high-profile scandals and high-profile lawsuits. During the 2026 Senate primary, as he made his case that he should replace Republican John Cornyn, Paxton advertised his conservative credentials with a statistic: He had "sued [President Joe] Biden over 100 times."
His lawsuits covered quite a bit of ground. There was his attempt in 2020 to overturn the election results, which the U.S. Supreme Court rejected. But he did not always fare poorly. Within days of Biden taking office in 2021, Paxton sued to stop the then-president's 100-day pause on certain deportations, which a federal court granted. He also secured enormous settlements against Meta and Google—$1.4 billion and $1.375 billion, respectively—for alleged privacy violations, although neither company admitted wrongdoing.
Paxton has not lost steam. In 2025, he filed a lawsuit against former Rep. Beto O'Rourke, a Democrat, and his advocacy organization, Powered by People, over donations that supported Democratic lawmakers who left the state to block new Republican-drawn congressional maps. "Our Texan founding fathers—like our American founding fathers—took prior restraints on political speech out of the tool kit," a Texas appeals court later wrote, "when they enshrined the right to free speech in our Constitution." The year prior, Paxton filed suit against Annunciation House, a Catholic charity that shelters migrants in El Paso; one judge called his office's conduct in that case "outrageous and intolerable." Yet Paxton has succeeded in drawing out both cases with lengthy litigation. Even when he may lose the final battle, he often hamstrings his opponents for long periods, a different kind of victory.
Has that helped make Paxton nearly bulletproof? Maybe. But it is also a snapshot of the power of branding in this political moment and how he has leveraged it offstage. "How hard is it for anybody, any Republican, to go into the A.G.'s office and sue the president of the opposing party?" says the Republican former official. "It's just typical stuff, you know. It's nothing of this great political fighter that they think he is."
When it comes to the other category—those high-profile scandals—Paxton has repeatedly denied wrongdoing, casting his legal tribulations as politically motivated witch hunts. He is, he always insists, the victim, not the perpetrator. It may be another sign of how the political landscape has changed, particularly in the GOP, in that transgressions can become capital when marketed savvily.
In the May runoff with Cornyn, who has represented Texas in the Senate since 2002, Paxton won by 28 points.
Can the Survivor Survive?
Party conventions usually exist to formally nominate a president and vice president. Those trappings were still there in the GOP's midterm convention, though no one was being nominated. There were state delegations, their role entirely symbolic. There were balloons and sequins and Lee Greenwood, who introduced the president both nights by singing "God Bless the USA." Trump, of course, loves a good production.
You couldn't help but get the feeling sometimes that the event was largely mounted for Paxton. It took place in Dallas, after all, and his race was a constant part of the discussion.
"He is a weird-looking dude," Trump said. That time, he was referring to Talarico, whom he called "Talafreako." That comment didn't come with an endorsement. "I mean, I don't like talking about looks, but there's something missing there."
Talarico's general presentation has been a subject of fascination on the right throughout the race: his appearance, whether he likes football, accusations he's a vegan (he isn't). An ad run by Paxton deems Talarico "too low-T for Texas"—not macho enough.
How this mudslinging resonates may vary. "Policy is all that matters," Kyle Biedermann, a Republican who served with Talarico in the Texas House of Representatives, told me on the sidelines during the second night of the convention. "I don't care if he's a vegan. I don't care what he does. But his policies are horrible, terrible for our state." Those policies, he said, "are so socialist, so far, far left" that anything else is beside the point.
The night prior, when the president offered $5,000 to every American adult if Republicans won the midterms, a victory in Texas may have been at the top of Trump's mind. On closing night, during the president's second speech, Paxton was featured heavily again. Trump described how he had rehearsed for the moment with his circle. "I'll tell you what I was thinking about saying. I said, 'I don't like the way Ken dresses,'" he recounted to the audience. "And then I said, 'I don't really like the way Ken talks.' And then I said something that they really hated….I said, 'I don't really like the way he looks.'"
In the VIP section, Paxton smiled awkwardly. He is, after all, a survivor.
Texas might finally turn blue, and the man poised to do it is a mask-wearing, trans rights–supporting, Gnostic Gospel–quoting liberal from Austin. In an already tough year for Republicans, voter dissatisfaction at the state's data center boom is giving the Democrat an edge.
A few weeks out from the 2026 midterm elections, the polls have been giving state Rep. James Talarico (D–Austin) a small, steady edge over Republican Attorney General Ken Paxton in the race to fill the Senate seat currently occupied by Republican Sen. John Cornyn.
Texas has not elected a Democrat to statewide office since 1994. The chattering class's constantly misfiring prediction that the latest liberal challenger will beat the favored Republican has made "Texas turning blue" a mockable meme—the political equivalent of Charlie Brown winding up to kick the football.
But this year may be different. The national environment is very bad for Republicans. President Donald Trump's unpopular tariffs and unpopular war have made him, well, unpopular and given GOP candidates little to run on. Texas Republicans are also saddled with Paxton, who won a hotly contested primary despite having little natural charisma and a lot of scandals (both personal and political) to explain away.
Republicans' political headwinds have made Talarico, a 37-year-old legislator with a history that puts him solidly to the left of the median Texas voter, a surprisingly competitive candidate. Some of Talarico's edge can no doubt be chalked up to the candidate's own political skill and fundraising advantage. But he is also benefiting from a late-breaking development that few saw coming: the Lone Star's data center revolt.
For as long as Republicans have run Texas, they've been able to claim credit for the state's decades-long economic growth streak. But the grassroots groundswell of opposition to Texas' data center boom has helped to neutralize that traditional GOP advantage. In solidly red rural areas, large majorities are telling pollsters that they are opposed to the hundreds of data centers proposed in their backyard.
When Republicans thus talk about their economic stewardship today, it conjures up not positive feelings of persistent prosperity but dissatisfaction at all the ways the party has allowed an unpopular data center to be built next door. In a tight race, that might just be enough to give Talarico the last little push he needs to finally turn Texas blue.
Lab-Grown Liberals vs. the GOP Growth Machine
All the Texas Senate races of the past couple of decades have taken place within a growth machine. From 1998 through 2024, the Lone Star state posted the fourth-highest GDP growth rate, a period that roughly matches the GOP's unbroken record of statewide election wins. Not a day goes by, it seems, without a major corporation announcing a Texas megaproject or a billionaire relocating to booming Austin.
The state's frenetic growth rate has given the Texas GOP a good story to tell voters about why they should continue Republican rule: Under their low-tax, low-regulation regime, Texas has prospered. The jobs and businesses flooding into the state tend to be coming from states ruled by the Democrats trying to unseat them.
Those Texas Democrats whose bids for statewide office have managed to electrify liberals, meanwhile, have been ill-suited to convince voters that they'll keep the "Texas Miracle" going. There's an old joke that "Republicans fall in line, Democrats fall in love." In Texas, this hopeless romanticism has led to repeated heartbreak. In 2014, Wendy Davis inspired a national media buzz with her pro-abortion messaging while running for governor against Greg Abbott. Beto O'Rourke's style-over-substance challenge to Ted Cruz in 2018 produced a similar mania. Both lost.
You might expect Talarico to meet a similar fate. The fresh-faced lawmaker seems almost grown in a lab to leave liberals giddy while making swing voters stick with the GOP. A former teacher, he first won elected office in 2018, when he flipped an open Texas House seat in the Austin suburbs from red to blue. At 29 years old, he was then the youngest member of the Texas Legislature.
Analyses of lawmakers' voting record put Talarico squarely in the ideological middle of his fellow Democrats, and well to the left of the state's political center. His national star began to rise among Democrats when he used religious arguments to challenge Texas Republicans' culture-war battles over education.
In 2021, Texas Republicans proposed a bill requiring K-12 athletes to play on girls' or boys' sports teams according to the sex listed on their birth certificates. Two years later, they introduced a measure that would require the Ten Commandments to be displayed in public school classrooms. Talarico, a Presbyterian seminarian, cited his liberal brand of Protestantism to oppose both bills. "Trans children are God's children, made in God's own image. There's nothing wrong with them. Nothing at all. They are perfect. They are beautiful, and they are sacred," he said in a floor speech opposing the sports bill. In a debate on the Ten Commandments bill, he declared the legislation "deeply un-Christian," citing Christ's instructions in the Gospel of Matthew to pray privately. (The sports bill eventually passed. The 2023 Ten Commandments bill failed, but a near-identical bill would pass in 2025.)
Conservative Christians would quibble with Talarico's progressive readings of the Bible. For national Democrats and liberal-leaning magazine writers, however, his penchant for reframing the Annunciation as a pro-abortion parable and his citations of the noncanonical Gospel of Thomas to support trans rights all served as proof that this "deeply religious" Democrat could effectively speak to Christian swing voters in their own terms.
Talarico has also taken many secular positions that might be hard sells in Texas. In May 2020, a couple of months into the COVID-19 pandemic and weeks before George Floyd was killed by Minneapolis police, Talarico declared that racism was the real virus. At a 2022 animal welfare fundraiser, a mask-wearing Talarico said he was running a vegan campaign. The same year, he said in a public hearing, again wearing a mask, that "fossil fuels are destroying the planet."
In a state where oil, gas, and beef are champion industries, swing voters to not swoon ordinarily for race-critical, carbon-neutral veganism. Talarico himself seems to have conceded that point. He's dispelled rumors of his veganism by eating barbecue on camera and waved away his past wokisms as "cringey" and "miss[ing] the mark." Even so, Talarico's campaign platform remains stridently progressive. He wants to tax billionaires and raise the minimum wage. If it were up to him, he'd open up Medicare to everyone, regardless of age, and would codify abortion protections into law. He's pro–marijuana legalization and fanatically anti–school choice.
So why are polls showing Talarico maintaining a consistent two- to six-point edge over Paxton?
In one sense, his continued leftward lean is an electoral boon. In a race with a clear enthusiasm gap, some 91 percent of Democrats say they'll be supporting Talarico in the general election. Only 79 percent of Republicans say the same about their candidate. Talarico has also been blessed with a national environment that's shaping up to be a bloodbath for Republicans, who have to answer for the rising prices driven by Trump's tariffs and the Iran war.
But there is one final factor putting Talarico over the edge: a statewide data center revolt that's souring Texas voters on their state's growth machine and neutralizing the pro-growth message that has carried the GOP through so many other tough election cycles.
It's the Data Centers, Stupid
In November 2025, on the heels of Google's decision to invest $40 billion in data center development in the state, Gov. Greg Abbott proudly declared, "Texas is the epicenter of AI development, where companies can pair innovation with expanding energy." Just a few months later, the governor was vowing to impose new regulations on data centers to "protect" Texans from the consequences of their rampant development.
The U.S. has experienced a rapid revolt against data centers this year, and in few places has that backlash been more sudden or more pronounced than in Texas. According to a 2025 poll by the University of Texas at Austin, nearly 60 percent of Texans were either supportive or neutral about a data center being built in their neighborhood. In August 2026, 57 percent said they would oppose a local data center project.
This backlash against data centers couldn't have come at a worse time for Texas Republicans, or, consequently, at a better time for Talarico. The policies the Texas GOP have long touted as the key to the state's economic success—loose land use and environmental regulations, no state income tax, and the cheap commercial energy prices created by its deregulated energy sector—are the same policies attracting data centers. When the most visible recent consequence of those pro-growth policies is a data center boom most Texans hate, the state's Republicans are having to run away from what were once their prime selling points.
The sudden negative turn in public opinion on data centers has "proven a catalyst for people raising questions about governance and the economy in the state," says James Henson, director of the Texas Politics Project at the University of Texas at Austin. Making matters worse, says Henson, is the geography of the data center backlash. Opposition to these projects is concentrated in rural areas that have long been Republican strongholds and in suburban areas where the party needs to stay competitive to win statewide elections.
As Abbott's pivot demonstrates, Texas Republicans feel acutely vulnerable on this issue and are scrambling to adopt policies that ensure these developments do not lead to higher electricity prices for residential consumers. Paxton himself has called for a raft of new regulations on these facilities' water and power use and for ending a sales tax exemption on data centers, as well as some more off-the-wall conservative-coded policies, such as holding data centers criminally liable for facilitating AI chatbots that "endanger" children.
Talarico's data center proposal isn't all that different. He too would require data centers to pay for the full costs of their power and would end the sales tax exemption they can currently claim on equipment purchases. He'd also give local communities veto power over data center projects. That makes him more moderate on data centers than fellow Democrat Gina Hinojosa, who is running for governor against Abbott. She's called for a moratorium on data center construction until the state Legislature can convene to discuss "protections" for Texans.
Talarico's moderation could be partly explained by the fact that data centers are more popular, relatively speaking, in heavily Democratic urban areas. He also represents a slice of Austin, which has become a booming tech town. Why risk upsetting one's base when long-ruling Republicans already have to own the data center boom they were so recently bragging about?
'Talafreako'
The 2026 midterm environment seems almost tailor-made to neutralize Republicans' long-time advantages in Texas. Nationally, they have to own higher prices. Locally, they have to own an unpopular data center boom. Waning voter concerns about illegal immigration have caused their favored red-meat issue to turn a dull brown.
The Texas GOP's only weapon left is personal attacks on the man they call "Talafreako"—some weirdo liberal who calls trans kids "perfect" and thinks racism is the real virus. Talarico's persistent lead in the polls and on the prediction markets (which, in late October, put the chances of him winning at nearly 70 percent) suggest that these attacks are not working.
One could sense Republicans' desperation when right-wing influencers spun up a rumor that Talarico was absent from the campaign trail in early October because he was in a mental health facility in Ohio. (The hospital publicly denied ever treating Talarico. The candidate himself said he'd been recovering from the flu and said he'd never even visited Ohio.)
When Republicans call Talarico a freak, they mean to cast him as abnormal and off-putting: a "freak of nature." But freak has multiple usages. The word can also mean an unpredicted or unusual event: a "freak occurrence." Talarico succeeding in ending Republicans' three-decade run of statewide victories in Texas would fit the latter definition.
Rather than run from the Talafreako barb, Talarico's campaign has emblazoned merch with the intended insult. They at least seem to appreciate the irony of it all.
If Talarico is a freak, that will make his likely victory all the more freaky.
The Scottish government has confirmed that around 800 public sector workers are being paid despite having no jobs. One National Health Service employee has received a full salary and benefits for 17 years despite not having an actual job. Under Scotland's policy against "compulsory redundancy," any workers whose jobs become obsolete are kept on "redeployment" lists and allowed to remain on the payroll while waiting for suitable positions. The estimated cost of paying people to do nothing is £27 million ($36 million) per year, but the actual cost to taxpayers is likely far higher, because several public bodies have refused to disclose salary information for hundreds of these workers.
Login
