It’s hard to believe that the same people who spent the Biden years screaming that Democrats were “socialists” out to destroy free market capitalism are now cheerfully handing the federal government ownership stakes in private companies.

And yet here we are.

Just as Trumpists have decided that their go-to strategy for trying to rile up their base for the midterms is to accuse every left-leaning Democrat of being a “communist” like it’s 1950, those very same Trumpists are taking on a genuinely terrible socialist idea: nationalizing industries.

We’ve already talked about how hypocritical Trump has been in attacking the left as being “socialist” while simultaneously giving his own government stakes in both US Steel and Intel, and now he’s talking about taking ownership of the various big AI companies as well.

US President Donald Trump is planning to meet the bosses of some of the country’s most notable artificial intelligence (AI) companies to discuss the government taking a financial stake in their future.

Speaking on Air Force One, Trump said the goal of the US government investing in AI companies was to “create almost a partnership with the American public”.

And later reporting has suggested that OpenAI is discussing coughing up 5% to appease Trump:

OpenAI has proposed handing the U.S. government a 5% stake in the company, the Financial Times reported Thursday, as the artificial intelligence startup seeks to defuse mounting political pressure in Washington.

A 5% holding would be worth roughly $42.6 billion, after the AI lab closed a record-breaking funding round in March at a post-money valuation of $852 billion.

It’s fun to watch the media frame this as “giving the public access to a dividend from the AI companies” rather than “Donald Trump demanding a cut to avoid attacking these companies.” Just look at the NY Times’ framing:

In the Oval Office on Wednesday, Mr. Trump said he would soon host a meeting with the top “12 or 15 executives” in the A.I. industry to discuss the idea of companies’ “giving back something to the public.” He added, “If we do that, the public will become very rich.”

The comments built on Mr. Trump’s remarks on Friday when he was first asked about the U.S. government’s acquiring stakes in A.I. companies. He said then that he wanted to meet with the companies to discuss providing the United States with stakes in their business, which “could be given to the American public.”

Yeah, sure, the public will become very rich, says the man who has used his position as president to inside trade his way to insane wealth. And how, exactly, will “the public” get back this money? And how will the government ensure that if the currently quite-inflated AI market drops that “the public” isn’t left holding the bag?

And, sure, there are some potentially interesting questions regarding how more people could benefit from the potential wealth that AI companies might generate. But it’s all highly speculative and still massively unlikely. But if there actually is evidence and an idea for actual redistribution of wealth because of AI company dominance, that would involve a way more nuanced, complex, and thoughtful discussion than Donald Trump saying “gimme 5%.”

But, really, what gets me most about all of this is, as I keep pointing out, how many of the AI VC bros during the Biden era, went absolutely apeshit over the Biden admin’s very weak policies on AI, which were basic guidelines and voluntary agreements that had no whiff of nationalizing the industry. But, with Trump talking about literally demanding cuts of these companies… you don’t see any complaining.

Instead, they’re out there whining about how some left-leaning politicians in NY are winning elections and how that’s the coming rise of “socialism.” Literally a couple months ago Marc Andreessen was on Joe Rogan talking about how these dumb young progressive kids support “socialism” even though “it never works.” Meanwhile, Andreessen was just appointed by Trump to some government policy board. As Trump literally nationalizes parts of the AI industry that Andreessen insisted the prior administration was going to destroy through its woke anti-capitalist policies.

Keep all this in mind the next time you hear Silicon Valley VC bros going around pointing at Democrats and screaming about the “creeping threat of socialist ideology.” If they’re not pointing out that Trump demanding equity from every AI company is way worse than anything that any Democrat has done or even proposed, just know that they’re totally fine with “socialism” where they’re the ones in power.

For over a decade, a particular argument keeps resurfacing from well-meaning progressives: the rise of authoritarianism around the globe is a good reason to pass laws suppressing speech. The idea is that somehow, magically, without free speech, authoritarians and fascists would never come to power in the first place. This is historically illiterate. It’s also stupid. As we’ve argued for many, many years, speech suppressing laws are always eventually used by the powerful to suppress the speech of their critics.

The latest example comes from Mexico, where the current leadership has played up “press freedoms,” but at the same time, powerful politicians are using laws ostensibly passed to protect the marginalized… to imprison journalists instead. The New York Times piece makes the pattern concrete in a way that should be eye-opening to many.

Take, for example, the situation with politician Mara Chama Villa. She used a law that was passed to stop “gender-based political violence.” That sounds good, right? Most good folks would agree that “gender-based political violence” is bad. But in this case, Chama Villa claimed that a satirical radio skit mocking her for being a nepobaby candidate violated the law:

It started with a one-minute audio cartoon. Three siblings asked their influential father to buy them candidacies for the upcoming 2024 elections, squabbling over who got to run for which party.

The satirical spot broadcast on Radio Teocelo, the local community-run radio station that also produced the ad, did not mention names, actual political parties or locations.

But Mara Chama Villa, who was running to represent the area in Congress with Mexico’s Ecologist Green Party — and whose father had been the mayor of Teocelo, a coffee-producing town in the state of Veracruz, the deadliest for journalists — felt targeted. She filed a complaint against Radio Teocelo and reporters from other outlets who had previously covered her failed attempt in 2021 to succeed her father as mayor.

Their coverage, she argued in legal filings reviewed by The New York Times, minimized her career and hurt her chances to win the election.

In April 2025, a federal court found five reporters guilty of gender-based political violence because they had “minimized” Ms. Chama Villa “by subordinating her to a male figure with political power,” the court said in its ruling.

The impact of being found guilty — again, for making a satirical radio spot that would be common all over the globe — was pretty massive:

The penalties were sweeping: fines exceeding a month’s salary, mandatory public apologies, the deletion of the radio spot and all denounced articles and placement on a national registry of gender-violence offenders.

Oh, and some more chilling effects, just for fun. If you criticized the ruling? Well, you got added to a follow-on legal process:

When journalists, analysts and organizations across Mexico criticized the outcome, the dispute ballooned into a nationwide case targeting about 70 people.

This is, quite obviously, the opposite of freedom of the press or freedom of speech. And I’d argue it does not do anything positive towards stopping “gender-based political violence.” It’s just become a tool for a powerful political family to punish journalists who produced a bit of satire.

And this isn’t a one-off, as the Times highlights other cases using the same law to target activists as well:

Earlier this year, a court sanctioned Miguel Alfonso Meza, an anti-corruption activist, for gender-based political violence against Silvia Delgado, a lawyer who represented the notorious drug lord Joaquín Guzmán Loera, best known as El Chapo. Mr. Meza had called her a “narco lawyer” when questioning her candidacy for a criminal judgeship in Mexico’s first-ever judicial election.

When the court later partly revoked the penalties on Mr. Meza, Ms. Delgado said that she would appeal that ruling. Her goal, she added in an interview, was “not to silence anyone, but to fight for dignity.”

“By describing my candidacy as highly dangerous and comparing me to other candidates investigated for drug trafficking,” she said, “he unleashed excessive attacks against me.”

The article also describes a crime reporter who was accused of “terrorism” because his reporting on local drug cartels “caused public panic” leading him to being dragged from his car and arrested (he thought he was being kidnapped). He now admits that he’s stopped chasing stories he used to chase.

The chilling effects in such a system are unavoidable.

Mexican politicians can defend these laws all they like. No one supports gender-based political violence or terrorism — and that’s exactly what makes the laws so useful to the people abusing them. A law nobody can be seen opposing is a law nobody can stop. And so a community radio station gets fined a month’s salary over a one-minute cartoon, an anti-corruption activist gets sanctioned for calling El Chapo’s lawyer a “narco lawyer,” and a crime reporter stops chasing the stories that made him a crime reporter.

This is how it always goes. Every time you hand the state a tool to punish “bad” speech, the people who end up wielding it are whoever holds power — and they get to decide what counts as “bad.”

If that still sounds like a worthwhile trade — speech restrictions now to keep the fascists out later — consider that we ran this exact experiment a century ago. Weimar Germany had hate speech laws. Prosecutors used them against Nazis, including Julius Streicher, the publisher of Der Stürmer, who was convicted and jailed more than once for incitement against Jews. The laws did not stop the Nazis. Indeed, the Nazis used these prosecutions as yet more “evidence” that they were being prosecuted for their beliefs. Then, the Nazis took power, inherited those very tools, and turned them on everyone else. Streicher walked out of the courtroom a martyr and into the Reichstag. The speech laws meant to stop authoritarians became the authoritarians’ speech laws.

So here’s the only test that matters before you back a law like this: imagine the politician you distrust the most holding the pen. Because eventually, they will. And anyone who answers “with this law on the books, they’ll never get into power” is indulging in childishly naive wishful thinking — the same wish that has been losing to authoritarians for as long as there have been authoritarians.

You don’t keep bad people from power by handing the office a weapon and hoping good people get there first. You keep them out with stronger elections, stronger institutions, and an educated public that can see through them.

Not by deciding which speech to outlaw — and then praying you’re always the one holding the pen.

For many, many years on Techdirt we’ve bemoaned the fact that federal court documents are not available for free as they should be. Instead, we have PACER, a bloated, expensive, difficult to use system that charges you for every “page” it loads up for you (including search results). The whole thing is a sham. Indeed, the law that allowed PACER to be established was based on the idea that, like photocopies, it cost money to “print” every page of every document. It also said that the fees PACER collected could only be used for… PACER. Instead, the fees far outpaced the actual costs, and the federal judiciary started using them for all sorts of other expenses. Courts have even told their own bosses at the judiciary that they’re overcharging beyond what the law allows.

And, really, it’s not even about the overcharging, though that is problematic. It’s about the freaking principle. Court documents are public documents and there is zero reason — when hosting a PDF costs essentially nothing and a server is not a photocopier — that they are not freely and immediately available to everyone.

The judiciary has claimed, for years, that making PACER free would be way too costly, which was totally undermined by a Congressional Budget Office analysis that said it would… effectively be free (PACER’s payment and user system is costly, ditching it and just making docs available would save money).

This week we were going to run a repost of an EFF blog post supporting a bill that would make PACER free, also known as the Open Courts Act. Of course, similar bills come up almost every year… and… go nowhere. Because Congress does not care. They don’t believe they’re serving the public, so why should they make sure that the public has access to court documents?

Instead… the judiciary has spit in the face of the public and announced it’s actually jacking up the fees:

The U.S. federal judiciary on Friday said it will temporarily hike fees to download documents from its online court records system known as PACER in order to accelerate the development of a new, more secure case management and public ​access system.

The executive committee of the Judicial Conference of the U.S., the judiciary’s top policymaking body, agreed ‌to increase the cost of downloading a court filing to 12 cents per page, up from the current 10 cents, for a five-year period starting January 1.

Let me let you in on a secret that isn’t much of a secret. There’s basically no chance — absent Congress doing what it should and making PACER free — that the judiciary will ever allow the price to go back down from 12 cents a page. Hell, I still remember reporting when the Judicial Conference hiked the price from 8 cents a page to 10 cents. As we noted at the time, this was already an illegal overcharge. Hiking the price to 12 cents per page is an even bigger violation of the law.

There is zero basis for charging 8 cents or 10 cents or 12 cents or any cents a page for a freaking PDF. It may have been more expensive to host PDFs when PACER started, but it’s not now.

The Judicial Conference is simply blowing smoke when they claim this increase is necessary to make PACER secure.

“Unfortunately, without a modest increase in ⁠fees, we will not be able to collect enough money to cover the costs of delivering the case management system that ​the federal courts must have to continue to operate securely,” Judge Robert Conrad, the director of the Administrative Office of the U.S. ​Courts, said in a statement.

Or — and this is the part the Judicial Conference doesn’t want to say out loud — if you made the documents publicly available without a login, you wouldn’t have any user data to secure in the first place. The security problem is a direct consequence of the fee system. Eliminate the fee system, eliminate the problem.

As always, the Judiciary pretends to then throw a bone to those who use PACER by saying they’ll up the “free” allocation:

To soften the blow, the judiciary said it would waive fees for users who spend $40 or less per quarter, an increase from the current $30 waiver. It said that will ensure that the vast majority of individual users, as opposed to law firms and other heavy PACER users, can ​avoid paying anything.

How magnanimous: a few extra free documents before the meter starts running — on records that, by every reasonable principle of democratic accountability, belong to the public.

The federal judiciary is now demanding more money for PDF downloads to fix a security problem that is mostly caused because… they’re charging the public money for PDF downloads. There’s a simpler solution and it is: make these public documents public for free.

At some point in a PR crisis, someone decides the solution is to hire a crisis communications person. The corporation behind Bricks & Minifigs (BAM Franchising) is in a bit of a pickle and has apparently reached that point in the Reckless Ben/Bricks & Minifigs saga — and their crisis communications person decided the way to respond to my articles on the saga is… to send me a press release claiming BAM is “determined to find an amicable resolution with the Mansell family.”

This would be more convincing if BAM hadn’t filed a lawsuit a month ago accusing Bryan Mansell of engaging in a RICO conspiracy against them.

But before we get to all that, a (very condensed!) reminder of where things stood last time we covered this story. A guy named Bryan Mansell sought to sell his father’s very large collection of unopened Star Wars Lego kits, and contracted with a Bricks & Minifigs franchise in Oregon, run by Chrystal Law-Gorman and her husband Ben Gorman. At some point the Gormans sought to leave their franchise and perhaps through some shenanigans, some buddies of Bricks & Minifigs Corporate (BAM Franchising) showed up at their store and effectively took it over.

There is video showing Gorman telling the dude taking over the store, Brandon Best, that there are consignment sets in the store that need to be settled up, and being told that they are taking over the consignment as well. Law-Gorman alerts Mansell to all this, and Mansell attempts to trigger a clause to get back the remaining sets and/or get the remaining money owed, which the new franchise owners refuse. They later claim that when they took over the store there was maybe $2k to $5k of Star Wars Lego sets on the premises (though, later reporting shows that there is more).

Eventually Mansell gets a YouTuber named “Reckless Ben” Schneider to try to get back the money owed (exaggerated to an amount of $200k) and then everything goes crazy. Ben goes to extreme (and at times unwise) stunts to try to recover money for Bryan, which does succeed in getting the whole thing to go ridiculously viral, but also leads to a series of potential legal problems for Schneider (and potentially Mansell). You had the Gormans suing BAM and then BAM suing Schneider and Mansell, and various possible criminal charges against Schneider (though this is disputed), most of which appeared to be misdemeanors, but with some possible felony charges as well.

Eventually, another YouTuber (Coffeezilla) was able to get detailed info from most parties, and worked out that the $200k number was bullshit, that many sets were probably already sold, that Law-Gorman likely owed some money to Mansell, but that the McNeff brothers who run BAM (and their friends who took over the franchise, Josh Johnson and Brandon Best) were being sketchy and inaccurate in their claims as well, and likely owed Mansell way more than the $2k to $5k they claimed, but way less than the $200k everyone was talking about.

And I’m not even going to get into all the sketchiness by the American Fork Police Department in Utah (where BAM is headquartered) in how it handled all this, but suffice it to say, the cops were bad and did bad things that cops shouldn’t do.

There’s a lot more in all of this, but my first two posts on the topic go deeper into the weeds.

Anyway… when it was left there were a bunch of court dates coming up, most of them in local Utah courts. Around the time of the last post, BAM was able to get a ridiculously overbroad temporary restraining order (TRO) on Schneider, that clearly violated the First Amendment in all sorts of ways, mainly engaging in clear prior restraint, but also limiting where Schneider could go in very broad terms.

Last week, there was some reporting claiming that “a truce had been reached” between BAM and Schneider. But that kinda overstates things. As Legal Eagle nicely explains in Devin’s recent video, the “truce” was that (1) Schneider and Mansell both finally hired lawyers, and (2) that those lawyers talked to BAM’s lawyers and agreed to a stipulation asking the judge to cut back most of the more insane terms in the TRO, to things that a standard TRO would limit, while saying that the two sides had agreed to go to mediation to try to sort out their differences. Amazingly, the local Utah judge, Tony Graf Jr., seemed to wake up to the constitutional problems with his original TRO, and realized that there were still problems with the newly agreed-on-by-both-sides injunction, and asked for further clarification before signing on, even though that meant the existing problematic TRO remains in effect.

If you want to read through all the documentation on that, here’s a 663-page pdf of the entire docket in the Utah local court. The joint stipulation starts on page 613.

As for why there’s a 663-page PDF of all the local court filings, well, that’s because Schneider’s lawyers (smartly) have removed the case to federal court on diversity grounds, which is exactly what they should be doing. Federal judges can better handle a case like this without issuing a TRO or an injunction that clearly violates the First Amendment, and they should easily qualify here as the defendants and plaintiffs are in different states and the amount at stake is over $75k (BAM claims over $300k in damages). As part of that filing, there’s a single exhibit with all of the 663-pages of filings from the local Utah court in one handy massive PDF.

While the McNeffs can try to stop the removal to federal court, it seems like it should stay there, though if they’re really going through mediation to reach a settlement (as they should), then they can basically put the cases on hold while that’s happening.

All that brings us to… BAM apparently hiring a crisis communications person, who, for some reason, thought it made sense to send me the latest “press release” (it’s just a blog post, folks) from BAM announcing that BAM is “determined to find an amicable resolution with Mansell family.”

As I wrote back to the PR person, this is hard to square with the fact that a month earlier BAM had sued Bryan Mansell, claiming that he was engaged in a RICO conspiracy against them. Also, the same press release sticks by the claim that they only have $2k to $5k worth of his Lego sets, and doubles down on blaming the Gormans for not paying Mansell. This is despite what Coffeezilla found — including in his conversations with the McNeff brothers who run BAM, that they not only have more sets than they initially claimed, but that they had a spreadsheet detailing all of that on their own Google Drive going back to near the beginning of this dispute.

The blog post also claims:

The company has also repeated its good-faith offer to make the Mansell family whole monetarily for anything fairly demonstrated to be unaccounted for, including amounts that may be owed to him without his knowledge. The company is committed to give him every Star Wars LEGO item remaining from the Salem store, whether identified as his or not.

Again, this is very difficult to square with BAM’s actual actions throughout this entire process, including the ongoing lawsuit which accuses him of engaging in a racketeering conspiracy against them. Separately, the “remaining from the Salem store” line is a bit squishy, since the Coffeezilla video showed that Brandon Best showed up with a U-Haul truck and there are reports that he removed a bunch of Lego sets around that time (the McNeffs dispute this, and claim that Best moved a bunch of sets from a different store a month earlier). But if the promise is to give Mansell back the “remaining” sets from the Salem store, that’s not all of his sets that it’s believed someone in the BAM universe possesses.

Either way, I sent BAM’s PR person a list of those inconsistencies and haven’t heard back. Which, honestly, tracks. When you’ve filed a RICO lawsuit against someone while simultaneously issuing press releases about your good-faith commitment to making them whole, there may not be a great answer to the question of how those two things fit together, no matter how experienced you are in crisis comms.

And really, that’s the thing about crisis communications: there’s only so much you can say in a crisis when your own actions have worsened the crisis at nearly every possible turn. When the crisis is that your behavior looks bad, hiring someone to talk about your behavior in a press release tends to make it look worse.

Trump-appointed Louisiana federal judge Terry Doughty has spent years bending over backwards trying to help some MAGA faithful manufacture nonsense claims about “censorship” for some grifters getting moderated on social media. As you’ll recall, he issued a bizarrely problematic ruling on July 4th three years ago, in which he said of perfectly reasonable, non-coercive communication between the Biden admin and social media companies “arguably involves the most massive attack against free speech in United States’ history.” He then banned all sorts of perfectly normal and reasonable communications, even between private parties. In order to do that, he literally fabricated quotes or took other quotes entirely out of context (for example, quoting a Biden official sending an expletive-laden email to Instagram officials as proof of coercion, leaving out the email was not about content moderation, but about Biden’s official Instagram account not allowing new followers).

The Fifth Circuit walked back nearly all of Judge Doughty’s injunction soon after, realizing how out of touch with reality it was. Eventually, after the Biden admin finally spoke up about all the false things in the lower court’s fact finding, the Supreme Court threw out the entire thing, noting that Judge Doughty appeared to push “clearly erroneous” facts into his ruling, and repeatedly finding “no evidence” of any actual censorship effort by the Biden administration.

But that was just one case of a bunch along these lines. Another one, filed soon after the Murthy case, also in Judge Doughty’s court, was brought by two of the same plaintiffs in that case, Jill Hines and Jim Hoft, and was filed by Stephen Miller’s “America First Legal.” Rather than being filed against actual government officials, this one directly targeted a variety of academic researchers and their institutions… because they studied disinformation.

The complaint is a complete joke and should have been thrown out the next day.

Instead, the case has gone on for over three years, and in the process many of the researchers have cut back on their research or moved to other jobs, and at least one academic institution, the Stanford Internet Observatory, effectively shut down because it became such a huge target of all this nonsense litigation.

First off: academic researchers are not the government and cannot censor anyone. They cannot violate someone’s First Amendment rights. Indeed, the lawsuit itself is an attack on their First Amendment rights, abusing the judicial process to create chilling effects and silence researchers for their research.

It took over three years (i.e., way longer than it should have), but even Judge Doughty can find no reason to keep that case going, and has dismissed it. Clearly chastised from the Supreme Court’s evisceration of his silly over-the-top ruling in Murthy, here, Doughty admits that (as SCOTUS found in the previous case) there’s no traceability to any suppression and therefore no standing. This is despite Hines and Hoft bending over backwards to pretend that actions taken by social media towards their accounts was somehow the fault of these researchers. But even Doughty can’t manufacture something out of complete nothing:

Here, no one placed anything on Facebook’s radar. Unlike the OEC’s flagging of posts to Twitter through the Portal in O’Handley, Plaintiffs do not provide any evidence that Hines’ post was flagged to Facebook. The subject matter of Hines’ post, political activism to end the public health emergency, is exactly the type of content that is out-of-scope of EIP’s election-related content monitoring. The Jira ticket data confirms the post was out-of-scope and counsel for Defendants, Elisabeth Theodore, testified in a sworn declaration that discovery didn’t reveal any documents of VP or EIP flagging posts from Hines to any social media platforms

Also, Doughty finally acknowledges what the Supreme Court told him in Murthy: that social media platforms have their own reasons and rules for moderating content that are unrelated to whatever a government official tells them (though, in this case, there isn’t even a government official, so none of this should even matter):

Facebook has had “longstanding content-moderation policies” in place for years. Id. at 50. Examples of its policies targeting speech it deems to be false or misleading include but are not limited to: factchecking and demoting posts containing misleading claims about elections beginning in 2016, removing health-related misinformation beginning in 2018, and taking action against users or posts that questioned the integrity of the 2020 Presidential election results. Id. at 50–51. Plaintiffs do not claim Facebook lacked independent incentives to moderate their content; in fact, Hines testified she received Facebook’s own content-policy justification in her notification.26 Absent evidence to the contrary, this notification demonstrates that Facebook acted pursuant to its own “independent incentives to moderate content” rather than Defendants’ coercion. Murthy, 603 U.S. at 61. Accordingly, Plaintiffs have failed to establish traceability from Facebook’s censorship actions to any “coercion” or “significant encouragement” by Defendants necessary under Murthy.

With Hoft and his nonsense-peddling site, Gateway Pundit, Judge Doughty now acknowledges what he refused to acknowledge in the other case: that just because some private researchers flag some content as possibly violating rules, it doesn’t mean that the platforms agree or take action based on those reports, since they review everything under their own rules.

Nineteen tickets from the EIP and the VP involved speech from Hoft’s website, The Gateway Pundit, or posts from The Gateway Pundit’s social-media accounts. On some of the tickets, Defendants made recommendations to social media platforms to remove posts from Hoft. However, none of the tickets reveal what actions the social media platforms took because of Defendants’ flags. Responses from social media platforms to Defendants’ tickets varied among the nineteen tickets. Sometimes the social media platform would simply respond that it was reviewing the content, sometimes it would respond saying the content didn’t violate community standards, sometimes the ticket stated the original post “was actioned” by the social media platform, and sometimes the ticket detailed that the social media platform had “already taken labeling action on the post.”

Defendants admit that some Jira tickets linking Hoft’s The Gateway Pundit were sent to social media platforms. However, Defendants maintain Hoft cannot establish standing as “he cannot plead or show that anyone at EIP or VP ever colluded with the federal government to pressure or coerce any social media platform to moderate his content.” Defendants concede that social media “[p]latforms sometimes took action after EIP sent them information.” Be that as it may, Defendants assert that discovery revealed the EIP’s files did not contain evidence of any communication with Twitter about The Gateway Pundit or Hoft in the lead-up to his account’s alleged suspension on February 6, 2021, “much less a coercive communication of the type that Murthy requires.” They maintain “discovery confirmed that social media companies responded to flagged posts pursuant to their pre-existing policies and independent judgment[,]” not due to coercion by any Defendants.

Doughty goes on to point out how little evidence there is that content flagged to platforms regarding the plaintiffs’ posts resulted in any action. I’m still perplexed as to why that even matters though. Again, the defendants were all private academics exercising their own First Amendment rights to flag content on a social media platforms, saying “hey, we think this violates your rules.” Even if Facebook, Twitter, TikTok and whoever else accepted every single one of those flags… it’s still not the government doing it and the case should have been over immediately.

Either way, here, Doughty still goes through the details and finds that Hines and Hoft simply can’t show any evidence that any of the moderation on their accounts was due to these researchers.

Incredibly, Judge Doughty initially ordered that the case be dismissed with prejudice (meaning it can’t be refiled in an amended form), but then quickly followed that up by issuing a second order saying it was dismissed without prejudice (with no explanation), so unfortunately this might not be over yet.

Two of those targeted by the lawsuit, leading disinformation researchers and experts, Kate Starbird and Renee DiResta, have written threads about the dismissal, noting the impact of the lawsuit on their research and their lives:

This entire lawsuit was a massive attack on the free speech of academic researchers, and on those grounds it succeeded. Many of the researchers named have been forced to move on, and one of the organizations targeted, the Stanford Internet Observatory, has shut down. The chilling effect worked.

And that’s not to mention that these academic researchers, who just wanted to understand the flows of disinformation had to spend the last three years of their lives fighting a clearly bogus lawsuit.

This was always a bad faith attack on academic research, brought by people who peddle disinformation and hate being called out on it. A good and functional judicial system would have (1) thrown out the case much more quickly, (2) forced the plaintiffs to pay the defendants’ legal fees, and (3) sanctioned them for filing frivolous, censorial lawsuits attacking the free speech of the academics.

This is why we need to keep fighting for better and stronger anti-SLAPP laws. This case is a perfect example of where those laws should apply, even outside of the defamation context.

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

Subscribe now on Apple Podcasts, Overcast, Spotify, Pocket Casts, YouTube, or your podcast app of choice — or go straight to the RSS feed. To get extended episodes with additional coverage, support us on Patreon.

In this week’s roundup of the latest news in online speech, content moderation and internet regulation, Ben is joined by Cori Crider, executive director of the Future of Technology Institute, an independent non-profit focusing on technology that serves the public. She previously co-founded legal non-profit Foxglove and led national security litigation at human rights organisation, Reprieve. Together, Ben and Cori discuss:

• Australia to double potential fines for Facebook and Instagram (ABC News)
• 85% of kids are still using social media despite ban. But we need a new measure to judge its success (The Conversation)
• German expert panel suggests social media ban for under-13s (Reuters)
• EXCLUSIVE: EU could announce social media ban for kids in September (Euractiv)
• The EU Wants To Grow Homegrown Tech. Its Courts Keep Making That Impossible (Techdirt)
• Eurosky x Funk (German pub broadcaster youth programme) partnership (Linkedin)

And in the extended episode for Patreon supporters, they cover:

• TikTok announce major redundancies amid push for AI content moderation (The Independent)
• Meta looks to AI to review harmful content in cost-cutting drive (Financial Times)

Our fun links this week are the rise of dopamine sites (Ben) and Polaroid’s billboard campaign (Cori).

If you’re already a Patreon supporter, you can get the extended episode on Patreon.

Earlier this year we wrote about the ridiculous thin-skinned executives at Palantir suing a small independent Swiss online magazine, Republik, that had reported on the great lengths the company had gone to, trying to get the Swiss government to purchase Palantir’s surveillance technology. Palantir knew they couldn’t sue for defamation because, you know, everything Republik reported was true. Instead, they sued, trying to invoke a Swiss “right of reply” law, claiming that because Republik refused to publish the press release Palantir wanted to run in response to the reporting, the magazine had violated the law.

As we said at the time, this is the height of entitlement. Palantir doesn’t get to tell Republik how and what it must publish.

And, thankfully, a court has agreed. Zurich’s commercial court rejected 22 of 23 claims that Palantir made.

The data analytics company lost on 22 out of 23 counts of the suit. In a ruling on Friday, Zurich’s commercial court dismissed the majority of counterstatement requests filed by the company and its Swiss subsidiary finding that only a single passage in one article warranted a published response from the company.

While the court agrees that there is a “right of reply” law in Switzerland, it has limitations:

While Swiss media law allows the subjects of a story to request a right of reply, this has caveats: the right of reply has to be concise and stick to the facts of the story.

The one count that stuck: the court found that a single passage in just one article warranted a limited published reply from Palantir.

Also, the court told Palantir to pay Republik for its legal expenses wasted on this SLAPP suit:

The court on Friday ordered Palantir to bear 95% of the 9,000 Swiss francs ($11,300; £8,400) court costs and to pay Republik 9,900 francs in legal expenses.

Of course, this case was always less about the ‘right of reply’ than about making it clear to anyone who reports critically on Palantir that the company will go to war with them, seeking any legal theory, no matter how ridiculous, to tie them up in court — the textbook logic of a SLAPP suit. Republik has said that defending the case cost the small organization quite a lot in time and resources:

Balz Oertli, a journalist with WAV research collective, said: “We invested a great deal of effort into this case, and we are very pleased with the outcome.”

Anyway, given that Palantir seems really upset about Republik’s reporting, it sure would be a shame if you decided to go read this critical reporting of Palantir’s relentless attempts to win business from the Swiss government.

While we’ve been discussing a bunch of other Supreme Court end-of-term decisions this week, we should also call out two decisions the Supreme Court thankfully decided not to make. These non-decisions continue to help preserve First Amendment speech protections.

First, and most importantly, they rejected Alan Dershowitz’s attempt to appeal his laughably embarrassing SLAPP suit against CNN, which was filed in the hopes of getting it before this Supreme Court as part of the ongoing and extremely dangerous project by the rich and powerful to dismantle the “actual malice” standard found in NYT v. Sullivan. If you want to learn more about that dangerous project, listen to the podcast I recorded with reporter David Enrich, whose book, Murder the Truth, goes deep on this issue.

Dersh seemed to really hope that his case would be the one to overturn Sullivan, but it’s not to be. The Supreme Court denied cert. Of course, with that denial, Justice Clarence Thomas decides to pen another whiny blog about how much he hates the “actual malice” standard. He cites his own previous whining as well as his mentor’s, former Judge Laurence Silberman, who picked up the same cause soon after Thomas starting yelling about it.

The “actual malice” standard for public figures “bears ‘no relation to the text, history, or structure of the Constitution.’” Berisha v. Lawson, 594 U. S. ___, ___ (2021) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 2) (quoting Tah v. Global Witness Publishing, Inc., 991 F. 3d 231, 251 (CADC 2021) (Silberman, J., dissenting)….

Instead, Thomas believes that public figures deserve extra special protection from critics, again citing his own previous whining:

Instead, the founding generation believed that, if anything, public figures had stronger claims for damages when they were defamed. See McKee v. Cosby, 586 U. S. 1172, 1177 (2019) (THOMAS, J., concurring in denial of certiorari). I and others have thus called for reconsideration of the actual-malice standard for public figures.

Thankfully, seven other Justices have no interest in this. However, Thomas did get Gorsuch to sign on to this, which perhaps isn’t surprising, as he’s joined Thomas’s anti-actual malice crusade in the past. However, in Enrich’s book, he uncovers that Gorsuch’s hatred for “actual malice” was based on a study… that was wrong. Apparently Gorsuch hasn’t adjusted his position, even though the data he has relied on has been proven to be incorrect. Not great, but at least this misinterpretation hasn’t infected others on the court yet.

The actual malice standard is what makes First Amendment speech protections function in practice — it’s the mechanism that keeps powerful people from drowning critics in expensive litigation. I get that Clarence Thomas hates the fact that people criticize him and his rich and powerful friends, but that’s a reason for him to go retire somewhere, not to rewrite one of the core planks that makes the First Amendment work.

The other denial is a bit less eventful. The Court refused to hear an appeal from Donald Trump on his $5 million loss (by jury verdict) in one of the defamation suits filed by E. Jean Carroll against him:

In November, Trump came to the Supreme Court, asking the justices to hear his appeal. He contended that Carroll’s lawyers should not have been allowed to introduce testimony by other women who also alleged that Trump had assaulted them, as well as the 2005 “Access Hollywood” tape in which Trump bragged about grabbing women by their genitals.

In her brief responding to Trump’s petition, Carroll argued that even if the jury should not have been allowed to consider the evidence, it ultimately would not have made a difference because the rest of her case was so strong. She asked the justices to deny review.

On Monday, the justices did so, without a noted dissent from the denial.

Of course, this is just one of two separate cases that Trump lost to Carroll on, and he’s also appealing the other one — the $83 million verdict — and that’s still pending. However, for now Trump appears shocked that his buddies on the Supreme Court didn’t get him out of this particular pickle. Once again, nothing short of total, unconditional loyalty will ever satisfy Trump.

In the meantime, though, we have the Court passing on these two cases, both of which might have messed with the basic standards regarding defamation. Passing on both means that, for now, the Supreme Court hasn’t taken a sledgehammer to First Amendment protections.

Look, 5-4 Supreme Court decisions count just as much as 9-0 ones, and a 5-4 decision getting it right is still a win, but for a number of reasons, the 5-4 decision in Trump v. Barbara, regarding the issue of birthright citizenship is terrifying.

This isn’t a complicated issue. This isn’t an issue that should even be before the Supreme Court at all. The text of the Fourteenth Amendment is crystal clear:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The history of the Fourteenth Amendment and every single damn case about this particular issue from after it was added to the Constitution until now has been abundantly, ridiculously clear: anyone born in the US is a US citizen. The only exception is kids of diplomats who are not considered “subject to the jurisdiction thereof.” The whole question of whether a child born in the US to foreign-born parents is a citizen was settled clearly in 1898 in US v. Wong Kim Ark and literally no one has seriously questioned this issue at all since then.

Until a group of freaking racists took over the White House and wanted to drum up hatred of foreigners and anyone not white. The Stephen Miller-led White House issued a hilarious/terrifying executive order pretending to overrule the clear meaning of the Fourteenth Amendment. That executive order was quickly challenged, and a year and a half later, the Supreme Court has ruled that the Fourteenth Amendment means what everyone knew it meant from the beginning. But just barely.

Chief Justice John Roberts, joined by Justices Amy Coney Barrett, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, issued what should have been a 9-0 one page ruling saying “yes, we can fucking read the plain text of the Fourteenth Amendment, and it says exactly what it says, and no, the President can’t overturn that by executive order, no matter how racist he is.”

Instead, in the past 17 months or so, a whole industry of grifting academics came out of the woodwork to manufacture, from absolutely nothing, made up claims that the interpretation of the Fourteenth Amendment was in dispute. Justices Gorsuch, Thomas, and Alito used that shoddy scholarship, among other things, to justify their arguments that Stephen Miller is somehow right about the Fourteenth Amendment not applying to a situation where it clearly applies.

Justice Kavanaugh “concurred” in part on the judgment, but not on the basic Constitutional interpretation, which is the whole ball game.

Kavanaugh’s faux-concurrence is particularly insane, given that one of the reasons we hear from the conservative wing of the Supreme Court regarding things like the Second Amendment and abortion rights is that due to “history and tradition,” we have to interpret these parts of the Constitution as they were originally interpreted, not based on any changes in the world. Except, here, Kavanaugh is suddenly, magically, stupendously, a believer in the “living Constitution” where he gets to rewrite the meaning based on different circumstances.

Could you imagine Kavanaugh writing this in a case about gun control, for example:

The original constitutional principles do not change absent a constitutional amendment, but the relevant principles— both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers.

Kavanaugh now insists that these “modern situations” include the rise in undocumented immigration to America that means we need to completely revise our understanding of the Constitution. Somehow “modern situations” don’t apply to things like assault weapons as compared to muskets when we’re talking about the Second Amendment.

Jay Willis at Balls and Strikes gets the situation exactly right:

The fact that Trump’s nakedly xenophobic attack on birthright citizenship earned four votes—four fucking votes—is a national embarrassment, and a heart-stoppingly frightening signal about what may lie ahead if Trump (for any reason) gets to replace Roberts or one of the liberal justices in 2027 or 2028. The upshot of Barbara is that, as a country, we are but one MAGA dead-ender away from a Court that is willing (and maybe excited) to undo Reconstruction, just as soon as Republican politicians bring a case that will allow them to do it. 

For more than two centuries, the Court has proclaimed itself to be the ultimate authority on the law, with the unreviewable power to say what it means, no matter how unpopular its rulings might be. These days, what passes for “courage” from the Court is an opinion that makes clear to Trump that there is a limit to the justices’ willingness to allow him to unilaterally amend the Constitution, but that he is really, really close to persuading them to get rid of it.

Willis also points out that, even if the majority ruling got this correct, tons of people had to suffer for a year and a half waiting for what should have been dismissed out of hand:

Trump v. Barbara is the stupidest Supreme Court case in recent memory: the nation’s nine fanciest lawyers spending God knows how many hours pondering a question about the Fourteenth Amendment’s meaning that a bright sixth-grader could have answered without difficulty in roughly 30 seconds. The fact that a bare majority of the Court eventually arrived at the howlingly obvious, so-simple-it-feels-like-a-trick-question result—and only after months of forcing noncitizen parents to wonder if their children would soon be rendered stateless—is not evidence of the justices’ boundless intellect or analytical rigor. It is a damning indictment of an institution that is teetering on the brink of stuffing the entire enterprise of constitutional governance in the garbage.

And, there is fear among many that this 5-4 ruling is just a prelude to something way worse. Elie Mystal at The Nation makes this point clearly:

Trump tried to change the definition of citizenship by executive fiat in clear opposition to the text of the 14th Amendment, and he almost got away with it. This time. And we know there will almost certainly be a next time; the Supreme Court loves to give Trump multiple bites at the apple whenever he is trying to graft bigotry onto the Constitution.

As has happened in the past, the dissents laid out the road map for how Trump or future bigots might get around the Citizenship Clause. Trump tried to take out both children of people with temporary status (like people on work visas) and children of people without proper status (like people who have overstayed travel visas or crossed the border in secret), and that appears to have been his mistake. The dissenters have different arguments for why the children of people who have temporary status should be denied rights than for why children whose parents are out of status (or never had status) should be denied those rights. It’s possible, even likely, that if Trump attacks these two groups separately, he’ll squeak his way to five votes on one or both fronts.

Yes, a 5-4 decision is still a win and it still counts in the books as a win, but the fact that Republicans like JD Vance are already salivating about how they just need to put one more MAGA-brained Justice on the Court and they get to overturn the Fourteenth Amendment as soon as possible should be a warning to everyone who actually believes the Constitution should be seen as saying what it clearly says.

In that video, JD Vance admits that MAGA is just salivating about getting another vote on the Supreme Court to try again on this issue. He literally says, if they can get one of the five Justices who signed onto the majority off the Supreme Court before Trump leaves office, he hopes they can get someone else on instead who will flip the vote.

As Moira Donegan notes, a “5-4 ruling on birthright citizenship is an invitation to try again.” And they will try.

This kind of ruling is why the entire judicial system needs a radical rethink, and quickly. As we’ve seen this week, the Supreme Court is clearly broken. And a 5-4 decision, while still a win for common sense and the plain reading of the Constitution, feels like a hollow victory — one that is likely not long for this world without a radical change to the way the Supreme Court functions.

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

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

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

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

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

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

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

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

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

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

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

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

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