Plaintiff-Appellee,

v.

Michael Lacey, Scott Spear, and John (“Jed”) Brunst,

Defendants-Appellants.

Introduction

This case is the culmination of a years-long campaign to censor online classified adult advertising. Government officials, including state attorneys general and ultimately the federal government, joined by various advocacy groups and others, made demands to shut down online adult advertising based on blanket assertions that all ads for escort services or sex work are necessarily ads for prostitution, and publishers that permit such ads should face criminal or civil liability merely for providing a platform.

But these campaigns ran headlong into well-established First Amendment principles. A series of cases, most involving Backpage.com, established that the First Amendment protects publication of adult classified ads, the government cannot presume escort ads are ads for illegal conduct, and, most pertinent here, the government cannot hold publishers responsible for third-party ads posted by others absent knowledge of the specific posters’ criminal purpose and specific intent to assist them.

The prosecution in this case proceeded not by addressing and overcoming these constitutional barriers but by evading them. The government’s strategy was to obscure the constitutional issues and prevent the jury from considering the government’s allegations in light of controlling First Amendment principles.

The district court acquiesced in this approach. It gave the government wide latitude to put into evidence its cooperating witnesses’ opinions and guesses that all adult ads are for prostitution. It allowed the government to use public accusations against Backpage.com in the guise of “notice” evidence.

At the same time, the court prevented Defendants from introducing key information in their defense, in particular any mention of the cases upholding Backpage.com’s established First Amendment rights and Defendants’ good faith in following the law. Ultimately, the court allowed the government to argue its theory without making any showing that any defendant ever even saw any given ad, much less did anything to facilitate or promote a business venture of prostitution related to any of the charged ads.

The district court’s deeply flawed handling of this case presents profound threats for speech and the Internet. No court has ever before allowed the novel theory of vicarious liability for third-party speech that the government advanced and the district court permitted here.

If allowed to stand, the district court’s rulings would serve as a wide-ranging blueprint for online censorship. Publishers and intermediaries across the Internet would face the threat of criminal liability contrary to bedrock First Amendment law.

Full Brief: United States v. Lacey et al

The post United States v. Lacey et al: Digital free speech is at risk appeared first on Reason Foundation.

Annual Surface Transportation Infrastructure Report 2025

Annual Transportation Finance Report 2025

The post Annual Privatization Report 2025 appeared first on Reason Foundation.

Dunn joined the board of trustees of Reason Foundation in 1994 and served as chairman between 2005 and 2013. 

“Bill was a fearless defender of liberty,” said Reason Foundation President David Nott. “He lived by the ‘cowboy ethics’ of courage, integrity, and self-reliance, while tirelessly advancing a vision of a free and just society.”   

Dunn grew up in Kansas, graduating with a Bachelor of Science degree in engineering physics from the University of Kansas in 1960. He earned a Ph.D. in theoretical physics from Northwestern University in 1996 and conducted research and system analysis studies for the Navy, Marine Corps, Coast Guard, and the Department of Defense. He also held research and faculty positions at the University of California and Pomona College in 1965 and 1966. 

In the early 1970s, Dunn saw an opportunity to apply his mathematics skills to the world of finance, developing a sustainable model that examines data to determine and follow major market trends, using sophisticated algorithms that mitigate risk. He founded DUNN Capital Management in 1974, setting industry standards that reflected his deep understanding of market forces, and became a legend among futures traders for his quantitative analysis of market trends. 

In 1994, he established Dunn’s Foundation for the Advancement of Right Thinking to advocate for the classical liberal ideas of individual liberty, free markets, and the rule of law. “The need to limit government growth has never been more urgent,” said Dunn in a 2009 interview. “Until the government abides by the Constitution, our liberty will be at the mercy of politicians and government officials who have proven themselves unable or unwilling to restrain themselves.” The foundation changed its name to The Dunn Foundation in 2016.

Dunn was a supporter of numerous other libertarian organizations, including Cato Institute, Competitive Enterprise Institute, Institute for Humane Studies, Liberty magazine, Institute for Justice, Law Enforcement Against Prohibition, and the Property and Environment Research Center. In 2009, he and his wife, Rebecca, established the Rebecca and William Dunn Chair at Chapman University in honor of the continuing work of Nobel Prize laureate Vernon L. Smith.

Dunn is survived by his wife Rebecca Walter Dunn, who serves as a trustee of Reason Foundation; daughters Liz Dunn, Chris Dunn Valencia, and Virginia Dunn Kerr; and thousands of friends, clients, and admirers who have been inspired by his commitment to libertarian principles and free market policies.

The post In memoriam: Bill Dunn​ appeared first on Reason Foundation.

Plaintiffs – Appellants,

v.

City of New Braunfels, Texas,

Defendant – Appellee.

Introduction and summary of argument

In 2011, the City of New Braunfels passed an ordinance banning short-term rentals (STRs) in large portions of the city. A coalition of STR owners challenged the ban, arguing it violated their property rights under the Fourteenth Amendment and the Texas Constitution.

The city initially moved to dismiss the case without any discovery, claiming STRs were nuisances. The lower court granted the motion, but this Court—after considering party briefing and supporting amicus briefs—reversed, directing the district court to weigh the evidence after discovery.

Discovery revealed the city’s claims were baseless. STRs in New Braunfels are prevalent, and the city has issued no nuisance citations against STR properties. Studies and data contradicted the city’s assertions about property values and neighborhood character. Nevertheless, the district court granted the city’s motion for summary judgment in a cursory opinion that ignored the evidence and this Court’s directive. This appeal thus seeks to restore meaningful judicial scrutiny to property-rights cases.

This controversy highlights two unresolved aspects of the ongoing housing debate—one legal, the other political. First, under the common-law conception of ownership, private proprietors are firmly within their “bundle of rights” to lease realty for as long or as short as they wish. They can only be prohibited from engaging in nuisant or harmful uses. Since at least Cedar Point Nursery v. Hassid (2021), the Supreme Court has clarified that property rights are fundamental and thus subject to at least a heightened degree of judicial scrutiny. 594 U.S. 139, 158 (2021) (“We cannot agree that the right to exclude is an empty formality, subject to modification at the government’s pleasure. On the contrary, it is a ‘fundamental element of the property right’ that cannot be balanced away.”) (cleaned up).

This contrasts with “rational basis review,” which attaches to rules and regulations that do not implicate fundamental rights and are, therefore, permitted for any conceivable police-power purpose. This is certainly the case under Texas law. Zaatari v. City of Austin, 615 S.W.3d 172 (Tex. App.–Austin 2019) (holding city ordinance banning short-term rentals of single-family residences not owner occupied was infringed on fundamental property rights). As amici will discuss, heightened constitutional protection against restrictions, specifically on short-term rentals, is not limited to the property rights of owners but extends to guests’ reciprocal “right to establish a home.” See, e.g., Keen v. City of Manhattan Beach, 292 Cal. Rptr. 3d 366, 370 (Cal. App. 2022) (“It is possible to reside somewhere for a night, a week, or a lifetime”); Wilkinson v. Chiwawa Comms. Ass’n, 327 P.2d 614, 620 (Wash. 2014) (“If a vacation renter uses a home ‘for the purposes of eating, sleeping, and other residential purposes,’ this use is residential, not commercial, no matter how short the rental duration.”).

Second, America’s housing sector has been in turmoil for decades now—at least as early as the mid-2000s. Despite widespread awareness and justified concern for the ever-dwindling supply of available units, innovative solutions—including short-term rentals alongside accessory-dwelling units and rowhouse developments—remain relatively few and far between.

Short-term rentals are acute targets of powerful NIMBY (“not in my backyard”) pushback and the longtime failure of proponents to organize a coherent political and policy response. As one among several correctives, amici strongly believe that caselaw on the topic of increasing access to housing should begin integrating a growing research literature demonstrating the economic, social, and cultural benefits of these alternatives that far outweigh the exaggerated externalities.

Full Brief: ‘Marfil v. City of New Braunfels’

The post Marfil v. City of New Braunfels: Regulating short-term rentals appeared first on Reason Foundation.

Petitioners,

v.

Consumers’ Research, et al.,

Respondents.

Schools, Health & Libraries Broadband Coalition, et al.,

Petitioners,

v.

Consumers’ Research, et al.,

Respondents.

Summary of argument

Respondents are correct on the bottom line, and so was the en banc Fifth Circuit: the administration of the Universal Service Fund (USF) Tax mechanism is unconstitutional. But the Fifth Circuit got it right for the wrong reason. The problem is not that the FCC’s reliance on the Universal Service Administrative Company (USAC) as administrator of the USF violates the “private nondelegation doctrine.” Rather, the problem is twofold: (1) The arrangement violates the Appointments Clause, because the USAC members can exercise significant governmental power under federal law without having gone through the proper appointment process. (2) The arrangement violates the Due Process Clause, because various members of USAC have an interest in the contribution amounts they project.

The Fifth Circuit was wrong that the FCC’s reliance on USAC violates the “private nondelegation doctrine.” There is no such doctrine. The idea that delegations of power to private parties are judged by a stricter standard than delegations to public parties has no support in any holdings of this Court. Any decisions that seem to the contrary have either been misinterpreted or were in fact based on other doctrines, like the Due Process Clause. And the lack of such a doctrine makes sense, because the nondelegation doctrine, which is rooted in Article I, is aimed at controlling Congress; it sensibly asks whether Congress has given up too much power, not who the recipient of such power is.

Assuming that the FCC is authorized to subdelegate to USAC, that subdelegation should be judged by the same standard as a subdelegation to a public body. (Amicus takes no position here on the statutory issue, or on whether the subdelegation to USAC would survive under the public-delegation standard.)

USAC exercises substantial federal power, because its projections go into effect automatically if the FCC does nothing within 14 days, and this determines the amount and distribution of the tax. This makes the members of USAC Officers of the United States. But because they weren’t appointed as Officers in the way that Article II requires, this arrangement violates the Appointments Clause.

That USAC members are nominally private is unimportant for Officer status. The labeling of USAC as private, and the fact that USAC is organized as a private organization under Delaware law, are constitutionally irrelevant, and in any event Appointments Clause doctrine doesn’t demand that an Officer formally be a public employee.

The Fifth Circuit was right to point out that there is a conflict of interest inherent in having USAC—which contains members of telecommunications companies, “who stand to benefit financially when universal service subsidies grow”—determine contribution amounts. Consumers’ Research v. FCC, 109 F.4th 743, 772 (5th Cir. 2024). But this problem should be located in the Due Process Clause, not in a private nondelegation doctrine. The Due Process Clause has for a century been interpreted to bar exercises of regulatory power by self-interested parties, whether public or private.

The distinction between the “private nondelegation doctrine,” the Appointments Clause, and the Due Process Clause, isn’t just of academic interest.

First, the doctrines are motivated by different theories. The nondelegation doctrine is giver-focused, asking whether Congress has given up too much power; the public-private question fits poorly with this concern. By contrast, the Appointments Clause is recipient-focused, asking, from a democratic accountability perspective, whether the recipient of major power has been validly authorized by the proper political process. And the Due Process Clause is application-focused, asking whether the use of the power implicates fairness concerns. The problem here fits more naturally with the Appointments Clause and Due Process issues.

Second, the doctrines apply in different contexts and have different remedies. For instance, a Due Process theory (unlike the nondelegation doctrine or the Appointments Clause) would apply even if this were a state regulatory scheme. It could also support damages under 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). And an Appointments Clause theory asks whether someone is “exercising significant authority pursuant to the laws of the United States.” Thus, an Appointments Clause approach will turn on how much power the agent exercises, ignoring trivial cases and requiring political accountability for significant ones. This is a sensible approach—otherwise, countless private delegations could be indiscriminately invalidated, from qui tam suits to private prison contracting to incorporation of private actuarial standards into healthcare regulation. Whether these are valid should depend on an inquiry into “significant authority.”

Third, a private nondelegation doctrine requires tough judgment calls about whether an organization is public or private, so the results will depend on the vagaries of public-private doctrines like the State Action Doctrine. (Indeed, it is not at all obvious that USAC is actually private here.) By contrast, the Appointments Clause and Due Process Clause depend on functional questions, such as whether significant power exists and whether there is a danger that it will be used self-interestedly. In today’s world of hybrid public-private organizations and nominally private organizations wielding coercive power, it makes more sense to rely on doctrines that do not hinge on formal public-private categorization.

Therefore, if this Court invalidates this regulatory scheme, it should do so on Due Process and/or Appointments Clause grounds. Regardless, this Court should not endorse any “private nondelegation doctrine” theory. (Amicus takes no position here on the ordinary nondelegation doctrine theory that the Fifth Circuit relied on to invalidate the initial delegation from Congress to the FCC. Amicus merely disagrees with the “private nondelegation doctrine.”)

Full Brief: Federal Communications Commission v. Consumers’ Research

The post Federal Communications Commission v. Consumers’ Research appeared first on Reason Foundation.

This dashboard compiles the key elements of governmental financial statements for fiscal years 2020, 2021, and 2022, covering all 50 states and the top 100 municipalities, counties and school districts.

A historical challenge in comparing the financial health of state and local governments has been that these entities do not prepare their financial statements in a machine-readable format. In some cases, certain reporting entities also fail to adhere to governmental accounting standards generally accepted in the United States.

Reason Foundation has responded to this gap by developing a proprietary automated approach to data extraction of key elements from the financial statements, the results of which are subsequently confirmed by manual human review.

We hope to provide valuable insights for policymakers, journalists, market participants, and other stakeholders by placing their state, municipality, county, or school district in contrast to their peers – and the broader context of the country.

At the end of fiscal 2022, five state governments had more than $200 billion in total liabilities: California, Illinois, New York, New Jersey and Texas.

Massachusetts had over $100 billion in total liabilities, Connecticut and Washington had over $90 billion, and Pennsylvania, Florida and Maryland each had over $60 billion in total liabilities at the end of fiscal 2022.

From the 2020 fiscal year through the 2022 fiscal year, 47 states saw increased revenues. Alaska, Michigan, and Wyoming were the three states that did not increase revenues.

During the same 2020-2022 period, total assets, such as growth in cash, investments, receivables, land, buildings, and infrastructure, increased for all 50 states.

The increase in assets helped 49 states, every state except North Dakota, reduce its state debt ratio, which is defined as the proportion of total liabilities to total assets from fiscal year (FY) 2020 to FY 2022.

At the end of the 2022 fiscal year, the 50 state governments held $1.03 trillion in employee-related debt, including $502 billion in net public pension liabilities and $524 billion in net other post-employment benefit liabilities, such as promised medical benefits for retirees.

For the tool’s full interactivity and options, please visit https://debttrends.transparencyproject.reason.org.

State debt: California, Illinois, New York, New Jersey and Texas each have over $200 billion in total liabilities

County debt: Los Angeles, Philadelphia, Denver, Miami-Dade and Cook counties among worst in nation

City debt: New York has more than four times the liabilities of Chicago, Los Angeles, Houston and other cities

The post Debt trends for state and local governments 2020-2022 appeared first on Reason Foundation.

Petitioners,

v.

National Horsemen’s Benevolent and Protective Association, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit.

Summary of Argument

This case is obviously certworthy. The Horseracing Integrity and Safety Authority is an unaccountable agency that exercises significant federal rulemaking, investigation, and enforcement authority, even though its members haven’t been politically appointed and even though it doesn’t have meaningful oversight by any other agency. There is a circuit split on the private nondelegation issue. A circuit court has struck down part of a federal statute. Parties from both sides, including the federal government, agree that a grant of certiorari is warranted.

However, this Court shouldn’t merely grant certiorari on the private nondelegation issue. It should also grant certiorari on the Appointments Clause issue, because these two issues are closely related, and the Fifth Circuit reached the incorrect result on each of these issues.

The Fifth Circuit was wrong that the Authority’s enforcement power violates the “private nondelegation doctrine.” There is no such doctrine. The idea that delegations of power to private parties are judged by a stricter standard than delegations to public parties has no support in any holdings of this Court. Any decisions that seem to the contrary have either been misinterpreted or were in fact based on other doctrines, like the Due Process Clause. And the lack of such a doctrine makes sense, because the nondelegation doctrine, which is rooted in Article I, sensibly asks whether Congress has given up too much power, not who the recipient of such power is.

If the Authority is considered a private organization, the delegation to the Authority should be judged by the same “intelligible principle” standard as a delegation to a public agency—and the delegation here clearly passes that test.

However, the Fifth Circuit reached the partially right result, though for the wrong reason. Contrary to the Fifth Circuit’s holding, exercises of power by the Authority, whether rulemaking or enforcement power, violate the Appointments Clause, because the members of the Authority are Officers of the United States but weren’t appointed as Officers should be under Article II.

That the Authority members are nominally private is unimportant for Officer status. The statutory labeling of the Authority as private, and the fact that the Authority is organized as a private organization under state law, are constitutionally irrelevant, and in any event Appointments Clause doctrine doesn’t demand that an Officer formally be a public employee.

Even if public status were relevant to the Appointments Clause—and even if the Fifth Circuit were correct to assume that “state actor” status under the State Action Doctrine is relevant here—the Fifth Circuit still erred in holding that the Authority isn’t a state actor. On the contrary, this is an easy case for state action, because rulemaking, investigation, and enforcement of federal law are traditionally exclusive public functions. Therefore, an alternative way of deciding the case would be to hold that the Authority is public because it is a state actor, which would uncontroversially activate both the Appointments Clause and the traditional (public) nondelegation doctrine.

The difference between the “private nondelegation doctrine” and the Appointments Clause isn’t just of academic interest.

First, the doctrines are motivated by different theories. The nondelegation doctrine is giver-focused, asking whether Congress has given up too much power; the public-private question fits poorly with this concern. By contrast, the Appointments Clause is recipient-focused, asking, from a democratic accountability perspective, whether the recipient of major power has been validly authorized by the proper political process. The problem here fits more naturally with the Appointments Clause issue.

Second, the doctrines won’t always produce the same results. A private nondelegation doctrine requires tough judgment calls about whether an organization is public or private, so the results will depend on the vagaries of public-private doctrines. And when the doctrine finds private status, it would apparently invalidate all delegations of “government power” that aren’t subordinate to a public agency. Horsemen’s I, 53 F.4th at 878. By contrast, the Appointments Clause asks whether someone (public or private) is “exercising significant authority pursuant to the laws of the United States.” Thus, an Appointments Clause approach will turn on how much power the agent exercises, ignoring trivial cases and requiring political accountability for significant ones. This is a sensible approach—otherwise, countless private delegations could be indiscriminately invalidated, from qui tam suits to private prison contracting to incorporation of private actuarial standards into healthcare regulation. Whether these are valid should depend on an inquiry into “significant authority.”

Therefore, this Court should grant certiorari on the Appointments Clause question.

This Court could reach the right result by only considering the Appointments Clause issue, because the correct resolution of that issue (that the Authority wields power unconstitutionally) would correctly resolve the entire case. But because parties from both sides, including the federal government, are asking the Court to consider the private nondelegation issue, and because that issue is obviously certworthy, amici ask that the private nondelegation and Appointments Clause issues be considered as linked and decided together.

The Sixth Circuit case (Oklahoma v. United States, No. 23-402) didn’t consider the Appointments Clause at all, so it would not be a good vehicle for a grant of certiorari. By contrast, the Eighth Circuit case (Walmsley v. FTC, No. 24-420) did consider the Appointments Clause, essentially incorporating the Fifth Circuit’s analysis (though the Appointments Clause issue was not part of the Questions Presented in the petition in that case). Therefore, this Court should grant certiorari—making sure that the grant includes the Appointments Clause question—in this case or in the Eighth Circuit case (or in both cases together).

Full Brief: Horseracing Integrity and Safety Authority v. National Horsemen’s Benevolent and Protective Association

The post Horseracing Integrity and Safety Authority v. National Horsemen’s Benevolent and Protective Association appeared first on Reason Foundation.

On Appeal from the United States District Court for the Eastern District of Pennsylvania,
(D.C. Civil No. 2-22-cv-01849)
The Honorable Paul S. Diamond

Statement Of Interest of Amici Curiae

Amici Electronic Frontier Foundation, Center for Democracy and Technology, Foundation for Individual Rights and Expression (FIRE), Public Knowledge, Reason Foundation, and Wikimedia Foundation are six nationally prominent non-profit organizations focused on defending the rights of internet users. They are all experts in civil liberties and technology, including Section 230 (47 U.S.C. § 230), the rights and liabilities of internet intermediaries, and, importantly, the ability of internet users to engage in online free expression. Amici have filed numerous briefs in federal and state courts nationwide on these issues, including in the U.S. Supreme Court in Gonzalez v. Google LLC, 598 U.S. 617 (2023) and Moody v. NetChoice, LLC, 144 S.Ct. 2383 (2024). More detailed organizational statements of interest are available in the Unopposed Motion for Leave to File Brief of Amici Curiae.

Introduction

This Court should grant Defendants-Appellees’ petition for rehearing en banc. The panel erred by holding that TikTok does not have Section 230(c)(1) immunity for recommending videos created by its users and that First Amendment protection for editorial choices around the display of third-party speech is mutually exclusive from Section 230(c)(1) immunity. The panel dismissed the text of Section 230 and the reasonable rulings of other circuits.

Moreover, whether Section 230(c)(1) applies to an online platform’s video recommendations was extensively briefed in Gonzalez v. Google LLC, 598 U.S. 617 (2023). It is improbable that while the Supreme Court declined to rule on this issue in Gonzalez, it did so by implication in Moody v. NetChoice, LLC, 144 S.Ct. 2383 (2024).

The panel’s rule creates a huge loophole that would make Section 230(c)(1) immunity virtually meaningless, undermining Congress’ policy goal of incentivizing internet intermediaries to facilitate third-party speech at scale.

The panel’s rule would ultimately harm internet users as online platforms would decrease useful content curation and increase censorship to reduce their legal exposure.

Full Brief: Anderson v. TikTok, Inc.

The post Anderson v. TikTok, Inc.: Section 230 protections apply to social media appeared first on Reason Foundation.

Brief of Amici Curia
Foundation for Individual Rights and Expression, Reason Foundation, and First Amendment Lawyers Association in support of petitioners and reversal

Summary of Argument

This Court has consistently required the government to meet a heavy burden when it regulates lawful adult speech in the name of protecting minors. Despite this clarity, Texas enacted—and the United States Court of Appeals for the Fifth Circuit overturned a preliminary injunction to uphold—a law that burdens adult access to protected speech online. Other states have already followed suit or are primed to do so.

In a string of rulings dating back decades, this Court has made clear that when the government seeks to prevent minors from accessing lawful sexual content, “the means must be carefully tailored to achieve those ends.” Sable Commc’ns of Cal. v. FCC, 492 U.S. 115, 126 (1989). Imposing a “burden on adult speech is unacceptable,” this Court held, “if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.” Reno v. ACLU, 521 U.S. 844, 874 (1997); see also United States v. Playboy Entm’t Grp., 529 U.S. 803, 813 (2000) (same); Ashcroft v. ACLU, 542 U.S. 656, 670 (2004) (same).

For generations this Court’s conclusion has been unmistakable: Statutory burdens on adult access to adult content must satisfy strict scrutiny. And that conclusion makes the same intuitive sense today as it did in the many previous cases that embraced it. After all, a statute singling out lawful sexual expression is a content-based speech restriction. As such, it is “presumed invalid” because of its “constant potential to be a repressive force in the lives and thoughts of a free people.” Ashcroft, 542 U.S. at 660. A content- based speech restriction poses such a grave threat to expressive rights that “it can stand only if it satisfies strict scrutiny,” which requires the government to employ the least restrictive means of serving its objectives. Playboy, 529 U.S. at 813.

But the Fifth Circuit disagrees. Contrary to this Court’s well-settled precedent—and in a sharp split with other circuits—a Fifth Circuit panel somehow held that a Texas law that significantly burdens adult access to lawful adult content warranted only rational-basis review. Free Speech Coal., Inc. v. Paxton, 95 F.4th 263 (5th Cir. 2024).

Relying on a strained reinvention of this Court’s ruling in Ginsberg v. New York, 390 U.S. 629 (1968), the panel effectively read Sable, Reno, Playboy, and Ashcroft out of existence. By wishing away the constitutional constraints established in those cases, the Fifth Circuit’s decision grants Texas a free hand to force adult Texans to show their papers and surrender their privacy simply to access content protected by the First Amendment.

The Fifth Circuit got it wrong. With the smoke cleared and mirrors stowed, Texas’ law is what it is: a content-based restriction on speech. No reasonable reading of the statute or of the caselaw can justify a contrary conclusion. Because the law imposes a content-based burden on adult access to protected speech, “the answer should be clear”: It demands strict scrutiny. Playboy, 529 U.S. at 814.

The Fifth Circuit’s attempt to excuse its use of a less-exacting standard via a tortured interpretation of this Court’s precedent is not only unconvincing, but dangerous. Because if Texas’ law is allowed to stand—and with it, the Fifth Circuit’s revisionist reading of long-standing First Amendment law— similarly speech-restrictive statutes (and similarly enterprising  jurisprudence)  will  soon  proliferate. California, for example, is close to passing its own version. Seven other states already have.

Keeping children safe is important, no doubt. But the means used to achieve this worthy end matter, and the government must bear the burden of proving their constitutionality. As Justice Thomas wisely warned: “The ‘starch’ in our constitutional standards cannot be sacrificed to accommodate the enforcement choices of the Government.” Playboy, 529 U.S. at 830 (Thomas, J., concurring).

The First Amendment doesn’t permit shortcuts. Texas must prove its statute satisfies strict scrutiny. This Court should direct the Fifth Circuit to require Texas to do so.

Full Brief: Free Speech Coalition, Inc. v. Paxton

The post Free Speech Coalition, Inc. v. Paxton: Texas law burdens adult access to protected online speech appeared first on Reason Foundation.

v.

Merrick B. Garland, in his capacity as United States Attorney General,

Respondent.

From the Department of Justice in DOJ-Pub. L. No. 118-50

Summary of Argument

This case presents an unprecedented threat to Americans’ expressive rights: Congress has singled out and effectively banned an entire platform for communication that half the country uses to share and consume ideas, news, advocacy, and creative content. Shuttering TikTok will deny millions of Americans access to a unique and important platform for exercising their right to free speech.

The Protecting Americans from Foreign Adversary Controlled Applications Act, Pub. L. No. 118-50, Div. H (Apr. 24, 2024) (“the Act”), is a direct regulation of speech subject to the highest level of First Amendment scrutiny. It explicitly calls out and regulates a specific platform for expression, imposes a prior restraint, and draws content-based restrictions on speech.

In enacting the law, Congress failed to meet its burden of proving it satisfies strict scrutiny—or any level of scrutiny. There are not even published legislative findings or any other official public record that attempts to explain or provide evidence why this severe encroachment on Americans’ right to speak and to receive information is needed to address a real and serious problem. The existing evidence of the law’s purpose—a single congressional committee report and various lawmakers’ public statements—reveals illegitimate intent to suppress disfavored speech and generalized concerns about data privacy and national security. These concerns fall far short of satisfying the relevant constitutional standards. Nor is the Act narrowly tailored to any compelling or substantial government interest, as the First Amendment requires.

This Court should grant the Petitions for Review and enjoin enforcement of the Act as unconstitutional.

Full Brief: Firebaugh v. Garland

The post Firebaugh v. Garland: Banning TikTok is unconstitutional appeared first on Reason Foundation.

v.

United States Securities And Exchange Commission, Respondent.

On Petition for Review from the

United States Securities and Exchange Commission No. 4-733

Introduction

This petition seeks review of the U.S. Securities and Exchange Commission’s denial of a petition to amend its requirement that settlement of all cases must include a lifetime prior restraint on speech. That restraint bars the settling enforcement target from ever even “indirectly” leaving the “impression” that “any allegation in [SEC’s] complaint” is “without factual basis.” No act of Congress authorizes such a sweeping restriction on freedom of speech and of the press as a condition of settling a government case. Nor could it.

The First Amendment of the Constitution provides that “Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people…to petition the Government for a redress of grievances.”

This Circuit has concluded with clarity that courts lack power to enforce unconstitutional prior restraints and content- and viewpoint- based speech restrictions as conditions on settlements—even when entered on consent. Davies v. Grossmont Union High Sch. Dist., 930 F. 2d 1390, 1399 (9th Cir. 1991) cert. denied, 501 U.S. 1252 (1991) (invalidating the portion of a settlement agreement in which a party waived his right to run for public office); United States v. Richards, 385 F. App’x 691, 693 (9th Cir. 2010) (invalidating term of plea agreement forbidding defendant from making public comments about county commissioner). These law-of-the-Circuit precedents are buttressed by the Fourth and Sixth Circuits. Overbey v. Mayor of Balt., 930 F.3d 215, 219 (4th Cir. 2019); G&V Lounge, Inc., v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1077 (6th Cir. 1994).

The SEC-imposed gag is a quintessential prior restraint—“the most serious and the least tolerable infringement on First Amendment rights.” Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). The notion that a governmental body may wield its power to decide who is to be permitted to comment on the agency’s own behavior undermines the core purpose of the First Amendment.

The gag rule also violates the due process of law by requiring defendants to waive their constitutional rights if they settle with the agency, including rights to be heard on the terms of the settlement, rights to notice of what speech would violate the gag, and the right to freely exchange their views of the administrative process they endured. The gag violates due process because it shields and encourages SEC regulation by settlement, allowing SEC to pursue cases not well-founded in established law or rules while forever silencing the targets of those actions.

The question raised in this appeal has exerted enormous individual, collective, and decades-long impact on Americans’ civil liberties and transparency in SEC’s regulation, which settles 98% of its cases. The stakes are high. If the denial order is not vacated, this Circuit will be disregarding its own precedents and complicit in hiding nearly all SEC agency enforcement practices from public scrutiny—in perpetuity.

SEC’s denial of the rulemaking petition perpetuates SEC’s 50-year unconstitutional reign of error. “Acquiescence for no length of time can legalize a clear usurpation of power…frequently yielded to merely because it is claimed.” Thomas Cooley, A Treatise on the Constitutional Limitations, 71 (1st ed. 1868).

“The construction given to the laws, by…the executive government, is necessarily ex parte, without the benefit of an opposing argument…[but] the judicial department…is not at liberty to surrender or waive [constitutional rights].” United States v. Dickson, 40 U.S. 141, 161–62 (1841) (Story, J.).

The same principle applies to judicial review under the APA.

Judulang v. Holder, 565 U.S. 42, 61 (2011) (holding that the “vintage” of agency actions is irrelevant and “longstanding capriciousness receives no special exemption from the APA”); see also Fisher v. United States, 425 U.S. 391, 407 (1976) (noting that “illegitimate and unconstitutional practices get their first footing … by silent approaches and slight deviations from legal modes of procedure” which can only be obviated by adherence to the Constitution) (citation omitted).

The founders, who enshrined the right of free speech, a free press, and rights of petition in the First Amendment, would never in their wildest imaginations have envisioned that a mere government agency could silence speech, dictate the content of speech, and compel corrective speech by those who would criticize that agency’s actions.

Congress itself could not enact a law extracting silence as a condition of settlement with the government; a mere administrative agency perforce lacks any such authority.

The Supreme Court recently unanimously recognized in Axon Enter., Inc. v. FTC and Cochran v. SEC, 598 U.S. 175 (2023) (“Axon/Cochran”), that SEC lacks the competence and expertise to decide constitutional questions. Accordingly, the SEC’s self-serving denial of the petition carries no credence in this Court, which is bound by the precedents set forth above. Justice Sotomayor wrote for a unanimous Court in NRA v. Vullo that no government official can “use the power of the State to punish or suppress disfavored expression” and that such “viewpoint discrimination is uniquely harmful to a free and democratic society.” 144 S. Ct. 1316, 1326 (2024).

This Court should vacate SEC’s denial and order rulemaking consistent with the Constitution and the opinion of the Court.

Full Brief: Powell v. SEC

The post Powell v. SEC: SEC-imposed gag order is unconstitutional appeared first on Reason Foundation.

Samantha Alario, et. al.,
Plaintiffs–appellees,

v.

On Appeal from the United States District Court for the District of Montana (Missoula)

Lead Case No. Cv 23-56-M-DWM

Introduction

Montana’s ban on TikTok—an application that hundreds of thousands of people in the state use to communicate, learn about the world, and express themselves—is unconstitutional. As the district court recognized, Senate Bill 419 “completely bans a platform where people speak.” It directly restricts protected speech and association, deliberately singles out a particular medium of expression for a blanket prohibition, and imposes a prior restraint that will make it impossible for users to speak, access information, and associate through TikTok. As a result, the statute triggers an especially exacting form of First Amendment scrutiny.

The district court correctly held SB 419 unconstitutional, but it reached that conclusion after applying only intermediate scrutiny under the First Amendment. While applying the proper standard should not change the outcome in this case, amici urge this court to recognize that under the Supreme Court’s and this court’s precedents, a higher level of First Amendment scrutiny governs here—and would apply to any other government attempt to ban Americans from accessing an entire medium of expression. Amici’s brief sets out the First Amendment standards that apply to the state’s effort to ban a social media platform like TikTok.

First, SB 419 constitutes a prior restraint on TikTok and its users, an especially disfavored means of restricting First Amendment rights. This is because the statute will shut down the app, blocking hundreds of thousands of users in Montana, as well as TikTok itself, from engaging in protected expression “in advance of the time that [their] communications are to occur.” Alexander v. United States, 509 U.S. 544, 550 (1993).

As a result, the district court was required to apply an “extraordinarily exacting” form of strict scrutiny. Columbia Broad. Sys., Inc. v. U.S. Dist. Ct. for Cent. Dist. of Cal., 729 F.2d 1174, 1178 (9th Cir. 1984).

Second, even if this court did not apply strict scrutiny to Senate Bill 419, the state would still have to satisfy a strict narrow-tailoring requirement because the statute is a total ban on a unique and important means of communication. See City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994).

In these circumstances, courts apply an exacting standard: a total ban fails unless it “curtails no more speech than is necessary to accomplish its purpose.” Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984).

Finally, the degree of judicial scrutiny that applies to SB 419 is not diminished by the State’s national security and foreign espionage claims. As both the Supreme Court and this court have made clear, the government’s burden to justify an infringement on First Amendment rights is the same in the national security context as in any other. See, e.g., N.Y. Times Co. v. United States (“Pentagon Papers”), 403 U.S. 713, 729–30 (1971).

In fact, the judiciary has an especially critical role to play in ensuring that the government meets its burden when national security is invoked.

Amici urge the court to see Montana Senate Bill 419 for what it is: a sweeping ban on free expression that triggers the most exacting scrutiny under the First Amendment.

Applying the proper test, this court should affirm the district court’s order granting preliminary injunctive relief under the First Amendment.

Full Amicus Brief: Alario v. Knudsen

The post Alario v. Knudsen: Montana’s TikTok ban is unconstitutional appeared first on Reason Foundation.

Candace Eidson, et al., Petitioners,
v.
South Carolina Department of Education, et al., Respondents, and Henry D. McMaster, et al., Intervenors-respondents.

Brief of Liberty Justice Center, American Federation for Children, Americans for Prosperity Foundation, Manhattan Institute for Policy Research, and Reason Foundation as Amici Curiae In Support of Respondents

Summary of Argument

The Supreme Court has stated that “[e]ducation is perhaps the most important function of state and local governments,” Brown v. Board of Education, 347 U.S. 483, 493 (1954), and South Carolina’s Constitution charges the government with a duty to provide education to children in the state, S.C. Const. art. XI, §3.

Petitioners imply that the Education Scholarship Trust Fund Program (ESTF) will somehow hinder South Carolina in carrying that constitutional mandate.

Not so: the program is designed to provide new opportunities to all eligible families, including a diverse array of students with unique educational needs.

While everyone agrees that all children should have equal access to education, virtually no one thinks the way we educate all children should be uniform, as though we were putting children on an education assembly line. People understand that different children have different needs, preferences, strengths, and weaknesses.

School choice— like South Carolina’s ESTF program—is a tool to provide children equal access to education while recognizing that all children learn in unique ways.

Petitioners’ arguments that such programs are discriminatory cannot be reconciled with the success stories of school choice around the country.

Full Amicus Brief: Eidson v. South Carolina Department of Education

The post Eidson v. South Carolina: School choice program is designed to provide new opportunities to all eligible families appeared first on Reason Foundation.

During his tenure, Arizona passed groundbreaking public pension reforms that put the state’s public safety pension system on a path to financial solvency. Through other efforts to make government more efficient and reduce taxpayers’ costs, Arizona employed 5,000 fewer state workers when Gov. Ducey left office in January 2023 than when he took office. The private sector added over 500,000 jobs in Arizona during his two terms.

As a longtime advocate of school choice, Ducey also expanded vouchers, enabling families to choose the best public or private school for each child’s needs. Other school choice leaders—including former Florida Gov. Jeb Bush, former South Carolina Gov. Nikki Haley, and columnist George Will—hailed Arizona’s plan as the gold standard in school choice programs. 

Reason Foundation’s Savas Award for Privatization is named in honor of privatization pioneer Dr. E. S. “Steve” Savas, who worked with government, businesses, and academics to advance his idea of engaging the private sector to improve the provision and quality of public services. 

Previous Savas Award recipients include Purdue University President Mitch Daniels, Success Academy co-founder Eva Moskowitz, Alliance for College-Ready Public Schools co-founder Frank Baxter, X Prize winner Burt Rutan, former Federal Communications Commission Chairman Ajit Pai, and Task Force Pineapple founder Lt. Col. Scott Mann.

For more about Reason Foundation’s Savas Award for Privatization, please visit www.reason.org.

Contact

Kelvey Vander Hart
Communications Specialist
Reason Foundation, Reason magazine
kelvey.vanderhart@reason.org

The post Former Arizona Gov. Doug Ducey receives 2023 Savas Award appeared first on Reason Foundation.

Dennis Hopkins
v.
Mississippi Secretary of State Michael Watson

On Appeal From The United States District Court For the Southern District of Mississippi, Northern Division

In Case No.3:18-cv-188-dpj-fkb

Brief of Reason Foundation, American Civil Liberties Union, and ACLU Mississippi as Amici Curiae In Support of Plaintiffs-Appellees

Introduction and Summary of the Argument

Mississippi’s lifetime felon disenfranchisement scheme is unique.
The attributes that make it unique support the conclusion that this
particular scheme is cruel and unusual in violation of the Eighth
Amendment.

Mississippi’s lifetime disenfranchisement provision was instituted
in 1890 with the explicit purpose of excluding Black citizens from the political process and restricting their voting power. The taint of invidious racial discrimination, ingrained in Mississippi’s lifetime voting ban and reflected even today in its disparate effects and largely unchanged form, support the conclusion that this particular scheme is cruel and unusual.

The Eighth Amendment is centrally concerned with harms to human dignity, which include the dignitary harms to the individual and to society that flow from state-imposed discrimination.

Mississippi law also conspicuously lacks any non-arbitrary,
accessible process for citizens who have served their sentences to regain the franchise. Instead, it requires a super-majority vote of both houses of the legislature for re-enfranchisement. As a result, Mississippi’s voting ban is mandatory, permanent, and effectively irrevocable—even for certain minor offenses that require no period of incarceration.

Mandatory and irrevocable punishments are especially likely to violate the Eighth Amendment due to their inherent disproportionality. The severity, arbitrariness, and irrevocability of Mississippi’s particular lifetime voting ban also support the conclusion that it is cruel and unusual.

As a result of these features, Mississippi’s lifetime disenfranchisement scheme stands alone among the 50 states. No other state, in the South or elsewhere, still maintains a disenfranchisement scheme so openly originating in Jim Crow discrimination. Almost no other state has a scheme this severe and irrevocable. Indeed, the national consensus among the states—another salient Eighth Amendment consideration—is towards expanding and regularizing re-entry into civic life for those who have served their time, to the benefit of the individual and society.

Based on the unique elements of this particular irrevocable lifetime
voting ban, the Court can and should conclude that the challenged
scheme is cruel and unusual in violation of the Eighth Amendment.

…Mississippi’s mandatory, irrevocable, lifetime disenfranchisement
scheme, rooted in noxious racism, and unique in its arbitrariness and severity, is cruel and unusual.

Conclusion

Mississippi’s lifetime disenfranchisement scheme should be invalidated.

Full Brief of Reason Foundation, American Civil Liberties Union, and ACLU Mississippi as Amici Curiae In Support of Plaintiffs-Appellees

The post Hopkins v. Watson: Mississippi’s lifetime disenfranchisement scheme should be invalidated appeared first on Reason Foundation.

Ashley Moody, Attorney General of Florida, et al.,
Petitioners,
v.
NetChoice, LLC, et al.,

NetChoice, LLC, et al.,
Petitioners,
v.
Ken Paxton, Attorney General of Texas

On Writs of Certiorari to the United States Courts of Appeals for the Fifth and Eleventh Circuits

Brief of Reason Foundation, Committee For Justice, Competitive Enterprise Institute, and Taxpayers Protection Alliance as Amici Curiae in Support of Respondents In No. 22-277 and Petitioners in No. 22-555

Conclusion

The editorial decisions and content moderation policies of social media platforms, large or small, are exercises of the freedom of speech, the freedom of the press, and the freedom of association protected by the First Amendment.

Efforts to force such companies to convey or associate with viewpoints or persons with which or whom they disagree or otherwise choose to disassociate from thus violate the First Amendment. That such private choices to disassociate may deny the person so rejected the benefits of such association with a popular platform and its users does not convert the platforms into common carriers, public accommodations, or anything else that can justify restrictions on their First Amendment rights.

Popular speakers, television hosts, newspapers, or interactive media organizers do not lose their First Amendment associational rights merely because they reach a bigger audience than alternative speakers, organizers, or online communities. That a rejected speaker cannot persuade a sufficient audience to listen to them is a flaw in the speaker, not the channels of communication.

Listeners make and can remake their own choices and overwhelmingly favor interactive speech platforms with content moderation policies that best match their own preferences.

Finally, whatever benefits the government may provide to corporations generally or to interactive media platforms specifically, none of those change the protected nature of the expressive and associational choices made by those companies.

For the foregoing reasons and the reasons discussed in the NetChoice party briefs, the decision of the Fifth Circuit should be reversed, the decision of the Eleventh Circuit should be affirmed, and both the Florida and Texas statutes should be held to violate the First Amendment.

Full Amicus Brief: Moody v. NetChoice, LLC

The post Moody v. NetChoice, Paxton v. NetChoice: Florida and Texas statutes violate the First Amendment appeared first on Reason Foundation.

Chris Quinn, et al, Petitioners

v.

Washington, et al, Respondents

On Petition for Writ of Certiorari to the Supreme Court of Washington

Brief of Washington Policy Center, Opportunity For All Coalition, Americans for Tax Reform, California Policy Center, Grassroot Institute of Hawaii, Illinois Policy Institute, Independence Institute, National Taxpayers Union Foundation, Manhattan Institute, Mountain States Policy Center, Oklahoma State Chamber Research Foundation, Reason Foundation, and Tax Foundation as Amici Curiae in Support of Petitioners

This court’s review is needed to ensure that the Washington Supreme Court’s decision does not become a playbook for other states to enact their own extraterritorial excise taxes—thereby taking unfair advantage of their neighbors, compromising the decisional autonomy of sister states, warping incentives for lawmakers, and throwing the constitution’s carefully calibrated system of interstate competition and comity into disarray.

The petition should be granted.

Amicus Brief: Quinn v. Washington

The post Amicus Brief: Quinn v. Washington appeared first on Reason Foundation.

The post Annual Privatization Report 2023 appeared first on Reason Foundation.