7/3/1941: Chief Justice Harlan Fiske Stone takes oath.

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Nearly half of Americans don’t understand what we’re celebrating for America’s 250th anniversary, according to a new poll. Clearly, the festivities aren’t about the quality of the country’s public schools, since this year marks 250 years since the signing of the Declaration of Independence. Something else we should be celebrating, though, is this country’s continued legacy of individual liberty. Our freedom may be under threat from people who don’t appreciate its value both within and outside the country, but it endures with the support—mostly—of Americans themselves.

Americans May Be Historically Ignorant, but We Love Liberty

“Nearly half (46%) of Americans don’t know what America’s 250th anniversary commemorates,” Emily Ekins reports of a national survey of 2,253 Americans by the Cato Institute, conducted in collaboration with Morning Consult. “A little more than half (53%) correctly answered that it was the adoption of the Declaration of Independence.”

The survey also contains good news. Asked “which would you most want children to learn from America’s 250th anniversary,” the most popular answer chosen is “freedom is rare and must be protected.”

Prompted to choose “the top core values and ideas that Americans believe define our country,” the most popular pick is “freedom and individual rights.”

Seventy percent of respondents say the principles of the country’s founding remain relevant today.

The answers square with those of a June AP-NORC poll which found majorities agreeing that the right to vote, freedom of speech, freedom of religion, and the right to keep and bear arms are “extremely” or “very” “important to the United States’ identity as a nation.”

Much is made of popular dissatisfaction with the country’s direction and some Americans’ lack of enthusiasm for this country—or situational enthusiasm that only comes into to play when their political tribe is in power. And that gloom is sad and concerning. But it’s clear that many of us still value the liberty that lies at the core of this country’s founding philosophy.

The Country’s Strong Protections for Individual Liberty Carry On

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” Thomas Jefferson wrote in the Declaration of Independence that we celebrate on Independence Day.

Decades later, in an 1819 letter, Jefferson emphasized that “rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’; because law is often but the tyrant’s will, and always so when it violates the right of an individual.”

Contrast this celebration of liberty over law with the tepid wording of Canada’s Charter of Rights and Freedoms which “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Any curb on liberty can be justified by a motivated government official. Ultimately, a promise of freedom within laws that are shaped and changed to suit political fashions is no guarantee at all.

And that’s what most of the world lives with: no guarantee of freedom. In its most recent annual report, Freedom House noted, “global freedom declined for the 20th consecutive year in 2025.”

The United States lost ground in that report, as did so many other countries. But the U.S. remains a haven for free speech even as other nominally liberal democratic countries—most of Europe, for example—abandon the whole idea of discourse unmanaged by the state.

Americans are far from immune to the growth of government and corresponding erosion of freedom around the world. But a majority of Americans still hold dear the value of individual liberty, and that helps keep the reality alive, though constantly under threat.

A Troubling Strain of Tolerance for Authoritarianism

That said, the Cato/Morning Consult survey offered some more troubling news. According to Ekins, “four in 10 Americans think it’s acceptable if a president they support stretched the Constitution to get what they want” and “a quarter (25%) say the Constitution should be interpreted more flexibly so government can act more decisively and quickly to solve problems.”

Restrictions on the presidency and government in general are features of protection for liberty. We bypass them at our peril.

Even more troubling is that while respondents viewed capitalism more favorably than socialism, at 52–37 percent, “Gen Z stands out for having more people who like socialism (53%) than capitalism (45%). More than a third of Americans under 30 (38%) say they have a favorable view of communism.”

Based as it is on voluntary transactions and individual choices, capitalism is the economic face of freedom. Neither socialism nor its openly totalitarian expression in communism are compatible with liberty. That they’re gaining ground with younger Americans is reason for concern. This provides further support for the Cato survey’s finding that “nearly 6 in 10 believe the country has moved away from the founding principles, and 56% worry the US could stop being a free country within the next 50 years.”

Celebrate Liberty While You Can

Americans are right to worry about the future of freedom given its global erosion, and younger Americans’ growing taste for state-dominated systems of total control. But the fact that most Americans do worry about the prospects for liberty means that the country retains a core appreciation of its founding principles. Liberty can only survive if it’s valued, and it is.

“Freedom is a fragile thing and it’s never more than one generation away from extinction,” then-California Gov. Ronald Reagan cautioned in 1967.

Freedom remains besieged in the world at large and here at home. But it’s still an idea valued and practiced by a majority of Americans. On this 250th anniversary of the founding of the United States, that’s worth celebrating.

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If Lin-Manuel Miranda’s Hamilton was well-suited for the pieties of the Obama years, then the anti-Hamilton, Gore Vidal’s Burr, was even more auspiciously timed. The 1973 novel came out not just as the Bicentennial was approaching but while the Watergate hearings were underway: a great moment for a tale that treats the Founding as a time of grimy scandal. Add the fact that the book is immensely entertaining, and it’s no surprise it was a smash hit.

The story zigzags between the USA’s early days and the 1830s, when a newspaperman (working for the proto-libertarian journalist William Leggett) pumps an aging Aaron Burr for information. We thus get to see the Founding through the eyes of the least popular Founding Father. Both Jeffersonians and Hamiltonians have reasons to hate Burr, after all: He tried to snatch the presidency from the first group’s idol, and he literally killed the hero of the second group. And then a treason trial wrecked the rest of his reputation.

Vidal was thus free to be as iconoclastic as he pleased. Given Burr’s infamy, even the most reverent reader wouldn’t mind if an author was frank about his flaws. And if the rest of the Founders come across poorly too—Alexander Hamilton, Thomas Jefferson, and George Washington all have feet of clay here—well, we’re seeing them through Burr’s eyes, right? “All in all,” Vidal noted in an afterword, “I think rather more highly of Jefferson than Burr does.” But he didn’t let that spoil the fun.

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In a special America 250 issue, Reason takes a look back at our country’s founding people and ideas. Read more here.

There are a lot of words you could use to describe America’s Founding Fathers: geniuses, visionaries, ideologues, perhaps even bros.

Here’s another word you could use to describe them: drunks.

America was founded by drinkers, distillers, and maltmen whose consumption would be labeled problematic or worse by today’s public health authorities. In a recent Supreme Court argument about marijuana and gun rights, Justice Neil Gorsuch noted the Founders’ penchant for heavy boozing. “John Adams took a tankard of hard cider with his breakfast every day,” he said. “James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn’t much of a user of alcohol—he only had three or four glasses of wine a night.”

Gorsuch’s point was that drinking norms were different, and so were standards for excess. “The American Temperance Society, back in the day, said eight shots of whiskey a day only made you an occasional drunkard.” To be a habitual drunkard in the old days, he noted, one had to double that.

Certainly, by today’s doctor-approved standards, the Founders’ drinking would have called for treatment or intervention. So were the Founders habitual drunkards?

Whatever your answer to that question, it’s clear they knew how to party.

On September 14, 1787, George Washington stepped into the City Tavern in Philadelphia with his pals and began a night of drinking that would make today’s wildest frat parties look like afternoon tea. It was a Friday night, and the Constitutional Convention that would produce America’s foundational document was all but concluded; the signing would take place just three days later. So Washington, then in his mid-50s, and his companions did what the moment called for. They got rip-roaring drunk.

Washington and a party consisting of “55 gentlemans” consumed 45 gallons of booze that night. The beverages served included seven bowls of punch, eight bottles of cider, a dozen bottles of unspecified beer, 22 bottles of porter, 60 bottles of claret, 54 bottles of the fortified wine Madeira, and eight bottles of whiskey, according to an itemized receipt that was reconstructed and later published in The Washington Post in 2018. It was, as the Post put it, a “bender that began America.”

Washington went on to become a spirits entrepreneur, opening a distillery at his home in Mount Vernon, a revitalized version of which is open today. His distillery made whiskey and apple brandy, an aged, whiskeylike spirit distilled directly from apples. By the end of the 1700s, he was reportedly selling nearly 11,000 gallons annually. His customers consisted mostly of his local circle—neighbors, traveling merchants, family, and staff from the estate, according to the Mount Vernon library website. Much of the whiskey was sold for cash, but he sometimes traded it directly for services from his family physician, James Craik, meaning he literally kept his doctor in good spirits.

Drinking was a way of life for Washington, who mixed politics and spirits long before he got into the business himself. In 1758, before the American Revolution, he was elected to the Virginia House of Burgesses as a representative from Frederick County. His campaign plied voters with booze, according to Mount Vernon, distributing 28 gallons of rum, 50 gallons of rum punch, and 82 gallons of wine, beer, and cider to Virginia’s thirsty colonial ballot casters.

Not all of America’s Founders were fans of whiskey. Jefferson was well-known for his opposition to the spirit. In an 1818 letter, he complained that whiskey was “destroying” the middle and lower ranks of American society and “ruining their families.”

But Jefferson wasn’t an anti-alcohol crusader. He was another familiar type: a wine snob.

In that same letter, Jefferson complained about the era’s tariff on wines, which he called “a tax on the health of our citizens” and “a legislative declaration that none but the richest of them shall be permitted to drink wine.” Tariffs, Jefferson understood, were functionally taxes that raised the price of goods, with predictable economic consequences. A tax on wine meant that more Americans were consigned to what he called the “poison of whisky.”

John Adams was a fan of good wine as well, and his surviving diary entries are dotted with descriptions of booze. In September 1774, he described a party featuring the “most excellent and admirable” wines. “I drank Madeira at a great Rate,” he wrote, “and found no Inconvenience in it.”

Samuel Adams, the namesake of one of America’s great craft beers, may or may not have brewed the stuff himself. But according to a 1751 advertisement in the Boston Evening-Post, he sold it, offering “strong beer, or malt for those who incline to brew it themselves; to be sold by Samuel Adams, at a very reasonable rate.”

Reasonable is not a word that today’s health authorities would have used to describe the Founders’ relationship with alcohol. In recent years, the consensus among the global public health community has shifted toward abstention. The latest guidelines from the World Health Organization, Canada, and the United Kingdom say no amount of alcohol is safe for consumption.

That recommendation contrasts with the updated federal dietary guidelines released early this year in the United States. The new guidelines say you should “consume less alcohol for better health.” But they omit a longstanding recommended limit of two drinks a day for men and one for women, leaving it for individuals to decide. Truly, it’s the American way.

Yes, consuming less alcohol might be good for your liver and your longevity. But for America’s founding drinkers, consuming more was the path to a nation that, after 250 years, is still in good health.

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After a deadly school shooting in Tacloban, Philippines, the government has temporarily banned the video game Gorebox because one of the teenage suspects allegedly played it. Two boys opened fire in a classroom, killing three students and wounding 20 others. Police say one of the shooters was “heavily influenced” by content online, including the game, which lets players use weapons and explosives in a virtual world. The government wants to investigate if it played a role in the attack.

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

Cert granted! This week, SCOTUS took up IJ case Hoffman v. WBI Energy Transportation, which pits North Dakota ranchers against a private pipeline company that wants to run roughshod over state-law protections for private property. Click here to learn more.

New on the Bound By Oath podcast: In 1960, the Supreme Court ignored text, history, and tradition and disfigured the Fourth Amendment, allowing warrants to issue based on hearsay. Which was bad and wrong, and the Court can fix it right now.

1. Puerto Rico puts over $2 mil in a court-controlled, interest-bearing account to pay for land condemnations. Before disbursing, the judiciary takes a 15 percent cut of the accrued interest. An unconstitutional taking? First Circuit: Doesn’t seem like it.
2. An IRS official who wants to assess a tax penalty must obtain written approval from his immediate supervisor—but, surely, the IRS says, that requirement can’t apply if a taxpayer’s liability has already been conclusively adjudicated, right? I mean, we’re not going to have some middle manager sign off on whether a court got it right, are we? C’mon, guys. Right? Second Circuit: Rules is rules.
3. Following the worst measles outbreak in the United States in 25 years, New York repealed its religious exemption for mandatory student vaccination. Amish schools and community members sue, alleging the law violates their Free Exercise rights and their right to control the religious upbringing of their children. Second Circuit (2025): Nope. Supreme Court: Take another look in light of Mahmoud v. Taylor. Second Circuit (2026): Still nope.
4. Fourth Circuit (2-1): The Trump Administration probably violated the due process rights of 19 career intelligence officers (who’d been doing the DEI) when it fired them without considering alternative positions for them or allowing them to appeal internally. PI affirmed.
5. Houston officer lies on no-knock warrant application, raids home of couple who are not drug dealers but are gun owners. Officers don’t wear body cams into the house; officers outside the house don’t activate their cams until the raid is underway or over. Five officers are shot, as many as four by friendly fire. Qualified immunity for the officer who shot husband and wife dead? District court: No, there are disputed facts. To a jury this must go. Fifth Circuit: Tragic. Harrowing. Reversed. We don’t second-guess officers in a gunfight.
6. SEC: Our in-house staff can be prosecutor, judge, and factfinder in assessing fines. Supreme Court (2023): No dice, the Seventh Amendment guarantees a jury in a real court to impose civil penalties. HHS: But surely that rule doesn’t apply to us (with respect to fining a vaping company). Fifth Circuit (over a dissent): Surely does.
7. Without a court order, Mariemont, Ohio officers push their way into condo, evict septuagenarian who had lived there for years—at the behest of the recently deceased condo owner’s nephew. Yikes! The nephew wasn’t on the up and up. Sixth Circuit (over a dissent): Actively participating in an eviction without any legal basis violates the Fourth Amendment. No qualified immunity.
8. A gang of soccer hooligans in Serbia called “The Red Devils” beat up a player over dissatisfaction with his performance on the pitch. After he gets out of the hospital, they threaten that the beatings will continue until his play improves. Instead, he flees to the U.S. and files for asylum based on his status as a professional soccer player. Seventh Circuit: That’s not exactly the kind of “social group” the asylum laws are meant to protect.
9. FBI searches drug dealer’s home and seizes $585k in cash from a safe. Yikes! Sticky-fingered agent pockets $218k and spends it on “cars, a Vegas trip, and plastic surgery for his wife.” Dealer agrees to forfeit remaining cash but seeks return of what was stolen. Ninth Circuit: Fair enough; he might not be seeking return of the exact same bills, but money is fungible. Dissent: That money is long gone, so this is really like seeking damages and barred by sovereign immunity.
10. You’ll be reminded in Footnote 7 of this Ninth Circuit preemption case that, unlike in most other tribunals, if you ask that court to take judicial notice of something it’s best to file a separate motion explicitly asking for said notice. You’ll also be reminded that smog is bad in southern California and (over a dissent) that federal law does not preempt new rules that are bad for sellers of gas water heaters.
11. Congress reformed the immigration removal system three decades ago, allowing some—but not all—aliens to be released on bond pending their hearing. A regulation issued soon after explaining that bond was available only for people already within the U.S., not for those arriving at the border. The feds reversed course last summer; now, no bond for any aliens. Cool? Fifth, Eighth circuits: Yup. Second, Sixth, Eleventh, and now Tenth Circuit: No. (With cases pending at the First, Third, Fourth, Seventh, and Ninth circuits.)
12. Utah’s legislative sessions are open to the public, but it provides additional access to credentialed journalists, such as entry to a press room and secure areas of the capitol. The credentialing policy categorically excludes journalists associated with blogs, independent media, or other freelance media. A former newspaper journalist with 25 years’ experience—now running an independent news organization—challenges his credential denial. Tenth Circuit: And it looks like he may have been denied because of his news stories’ viewpoints. Case un-dismissed!
13. Okaloosa County, Fla. officers raid home, force suspect’s girlfriend out of the house in the nude. She’s given insufficient material to cover herself and is in view of male officers and her minor children for nearly 40 minutes. Eleventh Circuit (unpublished): A jury might find she was prevented from dressing for longer than necessary.
14. And in en banc news, the Second Circuit will not reconsider its decision that New York state judges have absolute judicial immunity for rulings denying concealed-carry licenses. Six judges dissent from denial, arguing that placing licensing authority in the hands of judges would then seem to be a pretty convenient way to shield it from constitutional attack.

New on the Short Circuit podcast: Happy America at 250! On a special episode, two IJ Brits reflect on how 1776 led to judicial review.

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(Note: For those unfortunate few who hate soccer, you can just skip to the next post—and you are missing one of the world’s greatest sporting events.)

Like more than 30 million other Americans, last night I watched the U.S. Men’s National Team (USMNT) defeat Bosnia and Herzegovina 2-0 at the FIFA World Cup.  The big talking point after the game was whether the “straight” (i.e., immediate) red card given to the American striker, Folarin Balogun, was correct. As a long-time fan of the U.S. men’s team (and the women’s team, see, e.g., my post here), it may not be a surprise that I disagree with the call. And I acknowledge that I lack formal training in the rules of the World Cup. But as a lawyer and former trial court judge, I do have training and experience in applying rules to specific fact patterns. That background leads to me question the decision last night. Because it is interesting to think about how legal rules apply in this situation, I thought a short blog might be appropriate and timely.

To briefly recap the situation, last night at about 63 minutes into the match, the USMNT was leading the Bosnian team 1-0. Then American striker Balogun and Bosnian defender Tarik Muharemovic came together as they competed to claim a ball high in the air. You watch video of the incident here. As Balogun came down, the studs on his boot (e.g., his right cleat) landed on the ankle of Muharemovic. The referee on the field called nothing. But after the Video Assistant Referee (VAR) looked at incident in slow-motion, he called the referee to review the images. After slow motion review of the video, the referee changed his earlier call and gave Balogun a red card for “serious foul play.” This red card means Balogun was ejected from the game—and he will now miss the USMNT’s next game against Belgium on Monday.

As a lawyer considering the red card, four concerns come quickly to mind:

The “Time Framing” Problem

In law, a common issue is deciding the appropriate time frame to assess a disputed action. In criminal law, for example, a defendant’s actions may look culpable if one focuses on a narrow point in time. But stepping back and viewing the situation more broadly places the conduct in a different light. A simple illustration is that a defendant shooting a person might look like murder, if analyzed exclusively by focusing at the time the shot was fired. But rewinding time and learning that a few seconds earlier the person killed had made serious and plausible deadly threat to the defendant, the defendant’s action might be reasonable self-defense. Selecting the right time frame is critical.

Applied to Balogun’s situation, the time framing issue is whether to assess the correctness of the red card at the time he landed on the defender’s ankle—or earlier. Almost by definition, the assessment must involve a broader time frame then when Balogun landed. To offer simple hypothetical example, suppose Balogun had jumped straight up in the air to try and win the ball and the defendant had deliberately placed his ankle under Balogun to draw a red card. Focusing just on the landing would provide a misleading impression.

In Balogun’s situation, the issue of whether he engaged in serious foul play would seem to turn on the time at which he launched his jump. Thereafter, of course, his ability to change his trajectory would be very limited. And yet, according to the American televised broadcast, the VAR officials and referee appeared to focus on the time at which he landed.

The time framing problem becomes even more substantial when we consider what happened after Balogun’s launch and during his jump. As shown in the image below, the defender arm is extended into Balogun, clearly changing the trajectory of his jump.

Of course, if Balogun was knocked off balance by the Bosnian player, that would seem to place the incident in a different light.

But the commentary that I’ve read on the incident doesn’t discuss this fact. And it is noteworthy that the rules of soccer (promulgated by the International Football Association Board or IFAB) only allow shoulder-to-shoulder challenges, not use of the arm. See IFAB Rule 12 (“A player may shield the ball by taking a position between an opponent and the ball if the ball is within playing distance and the opponent is not held off with the arms of body.”) Considering this fact of illegal arm contact by the Bosnian defender preceding Balogun’s boot to the ankle changes the situation, as Balogun could not have reasonable understood he was going to be pushed by the defender in that way.

Mens rea or intent

This last point leads swiftly into another consideration: what was Balogun’s intent? In criminal law, the Latin shorthand for such considerations is “mens rea,” translated roughly as  “guilty mind.” The applicable provision (Rule 12) from the IFAB Rules of Soccer provides:

“Any player who lunges at an opponent in challenging for the ball from the front, from the side or from behind using one or both legs, with excessive force or endangers the safety of an opponent is guilty of serious foul play.”

In criminal law, a common interpretive question when construing provisions like this is to what extent they contain a mens rea requirement. The standard answer in criminal law is that the defendant typically must have some mens rea with respect to his actions, typically either intentionality, knowledge, or recklessness. Only in rare situations is a defendant guilty without intent—situations described as “strict liability.”

The serious foul play rule, at least as drafted, does seem to raise the possibility that intent is irrelevant. In particular, the phrase “endangers the safety of an opponent” could be interpreted as creating red card liability for simply creating an objectively dangerous situation. But context would still remain important in interpreting the phrase “endangers.” Consider, for example, the hypothetical situation of player jumping to head the ball and being pushed in the back by the opposing team as he comes down—with the effect that he lands on and, thus, endangers an opponent. No red card would appear to be appropriate in that situation, as the player is not in control as he lands through no fault of his own. It would be hard to describe the mere act of jumping in the area of an opponent as “endangering” an opponent.

This concept is implicit in the IFAB rules, but is made more explicit in other rules interpreting them. For example, the English Premier League (widely regarded as the best soccer or “football” league in the world) specifically lists five considerations for a “serious foul play” red card determination:

• Speed
• Intensity
• Force
• Degree of control
• Point and extent of contact (full/limited)

Thus, a player who makes a controlled challenge that inadvertently and unexpectedly endangers an opponent might not be guilty of a red card offense.

Similarly, as a matter of common sense, the degree of endangerment will always need to be considered when issuing a red card. Anyone on a soccer field fighting to win balls will, to some degree, endanger the safety of the opponent. The degree of endangerment becomes important, and someone who is intentionally trying to harm an opponent will, presumably, be more likely to cross that threshold.

This conclusion is reinforced by other events during the World Cup, such as an earlier incident involving the world’s most famous soccer player, Lionel Messi The incident clearly endangered the safety of an opponent but was not deemed worthy of a red card (or even a foul). The picture below shows the event:

As I understand things, the reason that Messi was not called for even a foul was that the contact was unintentional and therefore could not be said to rise to the level of endangerment. So too, it would seem, with Balogun’s contact.

Many commentators have criticized the Balogun red card on grounds that it involved unintentional conduct, including former Premier League referee Mark Clattenburg here, former Select Group referee Andy Davis here. Which leads me to the next legal concern:

Standard of Review

The debate over the Balogun red card leads directly into another standard legal question: What is the standard of review for an on-the-field determination? Recall that, on the field, the referee did not even whistle Balogun for a foul, let alone a yellow card, let alone a red card. What standard of review is applied in deciding whether to overturn the initial decision?

Here, the IFAB Rules of Soccer are clear. IFAB’s “Video Assistant Referee (VAR) Protocol” provides that a potential missed red card situation can be reviewed and changed, but only if the error is “clear and obvious.” Here is the relevant language of the VAR Protocol:

The original decision given by the referee will not be changed unless the video review clearly shows that the decision was a “clear and obvious error.”

The undergirding principle behind this rule is to avoid disrupting the flow of the game. VAR is already controversial because of the delays involved. So this standard of review is no mere technicality, but part of keeping the “beautiful game” beautiful.

Often at the World Cup, application of the “clear and obvious” principle is straightforward. For example, VAR has semi-automated technology that shows the relevant positions of the attackers and defenders at the time of a pass, allowing incontrovertible evidence of whether a player was “offside” during an attack.  But on judgment calls such whether some action was serious foul play, issues become more subjective.

And given that subjectivity, the fact that there is genuine dispute by neutral observers over a call would seem to rapidly remove it from the “clear and obvious” error category. If neutral and skilled soccer observers (such as Clattenburg and Davis) disagree with the call, it is hard to believe that the error was, in fact, “clear and obvious.”

Appeals Process

So Balogun’s red card was incorrect, at least in my view, as I have outlined here. Can there by an appeal—particularly of the one-game suspension that followed Balogun’s ejection from last night’s game?

It appears to be that under the FIFA World Cup rules, no appeal by the U.S. is possible from the suspension but FIFA’s disciplinary committee could extend the one-game suspension to additional games. I don’t dispute the no-appeal rule is currently in effect and needs to be followed in Balogun’s case. But I do want to suggest that. from a legal perspective, this one-way rachet allowing an increase in the punishment but not a decrease is ill-conceived.

For starters, it is useful to think about why a one-game suspension is added onto the (already severe) punishment inherent in a red card of a ejection from a game. On reflection, the reason is obvious. Without such an suspension add-on, the end of soccer matches would become open-season on players; a losing team, for example, could simply hack down opposing players, as the ejection from a game that was already a lost cause is no real punishment at all.

So given that the purpose of the additional, one-game suspension rule is its deterrent effect, how does the no-appeal-of-a-suspension fit into that purpose? In my view, the appeal rule should be broadened to allow an appeal by a suspended player. This change would not produce any substantial reduction in the deterrent value of the suspension rule. For example, it is impossible to believe that Balogun’s calculations regarding his challenge on the Bosnian defender considered the absence of an appeal as part of the calculus.

And allowing appeals by a suspended player’s team would help improve the accuracy of the process. Accuracy is, of course, one of the main reasons for an appellate process in the law. The general understanding in the law is that immediate, on-the-scene decisions (such as evidentiary rulings by trial court judges) may benefit from a detached, “second set of eyes” looking at the issue later. The same can be said of an appeals process for red card suspensions. An on-the-field decision might be erroneous and could be corrected by appeal. And the appeal process would have the benefit of being done without the time pressure inherent in an on-the-field decision. Since a suspension for the next game will, by definition, not apply for at least a few days, there is time for an appeal process—particularly in high stakes games like the World Cup games.

Another function of appeals in the law is to promote consistency from trial court to trial court. For example, appeals of criminal sentences are thought to help promote rule-of-law principles but ensuring that local decisions do not vary from jurisdiction to jurisdiction. The same could be said of appeals of red card suspensions. With this year’s World Cup spread across three countries and multiple referees from different nations, promoting consistency is an important goal.

From what I can tell reading the commentary about Balogun’s suspension, the biggest criticism has been how he was treated differently—and more harshly—than other similarly situated players, with the most prominent example being the leniency shown to the prominent (and popular) Lionel Messi. American soccer pundit Alexi Lalas, for example, has said that “if his [Balogun’s] name was Messi, he would still have played.” Without debating whether Lalas is right, the advantage of a centralized and consistent appeals process to potentially address such claims seems apparent.

To be sure, the new appeals process that I am proposing for suspended players would only operate to retract a suspension rather than give one. VAR already seems intrusive enough without allowing it to scan video of prior games and locate possible red cards. But there is no novelty is allowing appeals that operate in the direction of leniency only. In the U.S., for example, appeals by criminal defendants are routinely allowed by appeals appeals by prosecutors are rarity.

For all these reasons, my view is that Balogun’s red card card was incorrect and that, in the future, appeals of suspensions by the suspended players should be allowed. But as noted at the outset, I make no claim to being a professional interpreter of the rules of the game. And, of course, it is also possible that my views on this issue are shaped by my hopes that the U.S. men’s team progresses further in the tournament. If you have thoughts, feel free to add them to the comments below.

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The Supreme Court’s final decision of OT 2025, in Trump v. Barbara reaffirmed the conventional understanding of birthright citizenship under the Fourteenth Amendment, and held President Trump’s Executive Order purporting to deny citizenship to the children of temporary visitors and illegal aliens born on U.S. soil. Writing for the Court, Chief Justice Roberts reached to resolve the case on constitutional grounds, eschewing the narrower (and more bulletproof) statutory arguments against the E.O. And as a consequence, the Chief’s opinion in Barbara only garnered five votes.

Justice Kavanaugh concurred in the judgment, albeit on statutory grounds, and joined Justices Thomas, Alito, and Gorsuch in rejecting the Court’s constitutional claims. None of the justices fully embraced the Trump EO’s constitutionality, but the four all rejected the Chief Justice’s constitutional holding.

While I believe the Chief Justice’s opinion embraced the best interpretation of the Fourteenth Amendment’s citizenship clause, I believe it was an error to reach the constitutional question given the clear statutory infirmity of the President’s E.O., for reasons I explain in my latest Civitas Outlook column. A decision resting on statutory grounds would have received at least six votes; none of the dissenters addressed the statutory claim to any meaningful degree.

My column concludes:

In articulating and embracing a broad constitutional rule, the Chief Justice likely sought to settle the birthright citizenship debate for the body politic. He probably failed. Resolving the case on constitutional grounds produced a narrower majority than was necessary to resolve the case and invited extensive response, including over 130 pages of dissents. Legislative proposals on “birth tourism” and the like are sure to follow.

Although he considers himself a student of history, Chief Justice Roberts may not have learned history’s lesson here. While fairly (and in my view, accurately) recounting the history of American citizenship, he neglected to consider the history of judicial overreach. On several occasions in our nation’s history, justices have sought to quell political contestation through judicial edict, hoping the power of the pen would quell political discord. The controlling opinion in Planned Parenthood v. Casey (1992) called on “the contending sides” of that “national controversy” to lay down their opposition and heed the Court’s opinion. Their argument fell on deaf ears and arguably enflamed the opposition to the Court’s abortion jurisprudence.

It is unlikely that Trump v. Barbara ended the debate over birthright citizenship. It may have truly started it.

The post Will Trump v. Barbara End the Birthright Citizenship Debate appeared first on Reason.com.

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Today’s order by Judge Thomas Barber (M.D. Fla.) in Trump Media & Tech. Group Corp. v. WP Co. LLC grants summary judgment to the Post, and says that a full opinion will be forthcoming (presumably in some days or weeks). In the meantime, here’s the summary from the motion for summary judgment that the court granted:

On May 13, 2023, The Post reported that TMTG, a company founded by then-former-President Donald Trump, had received $8 million in loans from an obscure financial entity, ES Family Trust. The Post’s article (the “Article”) was part of its continuing business coverage regarding TMTG’s efforts to launch and fund a social media platform and followed two Post articles reporting on information disclosed by TMTG-co-founder-turned-whistleblower Will Wilkerson. The Article also reported that, based on internal TMTG documents Wilkerson provided, TMTG had agreed to pay and paid a $240,000 finder’s fee to Entoro Securities, a brokerage associated with the CEO of TMTG’s prospective merger partner, Digital World Acquisition Corp. (“DWAC”). According to the Article, neither the $8 million loan—which entitled ES Family Trust to company shares after the merger—nor the finder’s fee were disclosed to the Securities and Exchange Commission (“SEC”) or DWAC’s shareholders.

TMTG sued The Post for defamation, claiming the Article contained nine false and defamatory statements about TMTG. After three rounds of motions to dismiss, TMTG’s claim was narrowed to just two statements, both involving the finder’s fee. The operative Complaint claims that the Article’s statements that (1) TMTG “paid a $240,000 finder’s fee for helping to arrange the $8 million loan deal with ES Family Trust” and that (2) Entoro, a “brokerage associated with Patrick Orlando,” was the “recipient of that fee,” are false and defamatory because “TMTG never paid or agreed to pay a $240,000 ‘finder’s fee.'” In a passage that TMTG did not include in the Complaint, the Article also reported that “[i]n January 2022, Trump Media agreed to pay a cash referral fee—equal to 3 percent of the $8 million loans, or $240,000—to a Houston-based brokerage firm called Entoro Securities, according to a referral fee agreement and an Entoro invoice provided by Wilkerson.”

TMTG is a public figure and therefore must prove on summary judgment that a reasonable jury could find by clear and convincing evidence that The Post published the finder’s fee statements with actual malice. In other words, TMTG must show—well beyond a preponderance of the evidence—that at the time of publication The Post knew the finder’s fee statements were false or entertained serious doubts as to their truth. TMTG cannot satisfy that heavy burden.

Washington Post reporter Drew Harwell thoroughly investigated the Article before publication. He interviewed Will Wilkerson—an on-the-record source—who knew first-hand about TMTG’s financial dealings. Harwell also interviewed Wilkerson’s attorneys, who were giving information to government investigators on his behalf. He also reviewed internal TMTG documents and other documents Wilkerson attached to his SEC whistleblower complaint. And he contacted several sources to help him interpret the information he had collected.

As to the $240,000 referral fee specifically, Harwell’s telephone and inperson interviews of Wilkerson with his attorneys covered the topic, as did numerous documents that Wilkerson’s attorneys sent him. In all, they told Harwell repeatedly—both orally and in writing—that TMTG had agreed to Entoro’s finder’s fee and paid it. Harwell reviewed an invoice Entoro had sent TMTG for the fee and, later, an unsigned “Referral Fee Agreement,” which Wilkerson’s attorneys had located in his trove of whistleblower documents and which set out the terms for the fee. Harwell repeatedly spoke to Wilkerson’s attorneys and asked them to review a summary of the facts for accuracy before publication. He contacted TMTG, Entoro, and others eight days before publication to inform them of the article’s contents (including the agreement to pay the finder’s fee) and to offer an opportunity for them to comment. He followed up with TMTG when he did not hear back. Given this investigation, Harwell and his editor, Mark Seibel, had confidence in the Article’s accuracy at the time of publication.

A reporter need not engage in such a thorough investigation to dispel allegations of actual malice. What matters is whether there is clear and convincing evidence that the reporter actually knew, at the time of publication, that the statements were false or in fact entertained serious doubts as to the truth of those statements. And in this case, there is no evidence, much less clear and convincing evidence, that Harwell or his editors knew the finder’s fee statements were false. Instead, Harwell’s investigation rebuts any argument that the finder’s fee statements were made with actual malice. This Court should thus grant The Post summary judgment on TMTG’s defamation claim and TMTG’s conspiracy claim based on its defamation claim.

The post Trump Media Group Loses Lawsuit Against Washington Post, Over Allegations Related to SEC Disclosures appeared first on Reason.com.

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Critics of the Supreme Court’s birthright citizenship decision in Trump v. Barbara often cite the issue of “birth tourism” – situations where a pregnant woman comes to the US to give birth for the specific purpose of ensuring that the resulting child will be a US citizen. The issue comes up often in political discourse, and is a major focus of Justice Samuel Alito’s dissent in the case. As a legal matter, birth tourism should have no effect on the resolution of the constitutional issue before the Court: the meaning of the Citizenship Clause of the Fourteenth Amendment. As a matter of morality and policy, the problem is not just overblown, but actually not a problem at all.

The Citizenship Clause grants citizenship to “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof.” As Chief Justice John Roberts explains in his majority opinion for the Court, this covers almost everyone born in the US, excluding only groups that are largely exempt from sanctions for violating the law, such as children of diplomats who have diplomatic immunity.  That includes the groups Trump sought to exclude from birthright citizenship in his January 2025 executive order: children of undocumented immigrants and those here on temporary visas. Children of “birth tourists” are covered in the same way. Unless their parents are diplomats or the like, they too are subject to US law.

In my previous post about the Supreme Court decision, I summarize the reasons why the majority’s approach is correct, and the various dissenters wrong. Among other things, the dissent arguments all run afoul of the main purpose of the Citizenship Clause: ensuring citizenship rights for freed slaves, their children, and other Blacks.

Moreover, the scope of this phenomenon is very limited. PolitiFact recently compiled estimates of the number of children born to “birth tourists” on US soil. Most estimates fall within a range of about 5000 to 10,000 per year. The immigration-restrictionist Center for Immigration Studies gives a much higher estimate of 26,000 per year. CIS’s data analyses are often badly flawed and misleading. But even this higher figure is only about 10% of the over 250,000 children per year who would lose birthright citizenship status if Trump’s executive order had been upheld by the Court. Preventing this relatively small number of birth tourism cases isn’t worth consigning hundreds of thousands of people to deportation back to what for most would be a lifetime of poverty and oppression. It also isn’t worth the damage to the US economy and society.

Moreover, birth tourism isn’t actually a bad thing at all. It’s a positive good. Presumably, “birth tourist” parents want their children to be born US citizens so they could live a life of greater freedom and prosperity than would be possible in the parents’ countries of origin. That’s obviously a good outcome for the children and their families. And it’s good for the US economy and society, as well, because native-born US citizens benefit from the enormous economic and social contributions of immigrants. Indeed, immigration restrictions undermine the economic freedom and prosperity of native-born US citizens more than any other government policy.

There is no good reason to think that children of “birth tourists” will, on average, be any worse citizens than children of other types of migrants or – for that matter – native-born citizens. Relative to natives, immigrants contribute disproportionately to scientific innovation and entrepreneurship, have lower crime rates, and greatly reduce government budget deficits (they, on average, contribute far more to the public fisc than they take out). The same is almost certainly true of children of birth tourists.

Restrictionists tend to assume that immigration and citizenship are zero-sum games. If an immigrant comes and (worse still) becomes a citizen, that somehow takes something away from natives. But in the vast majority of cases, the exact opposite is true. Immigrants and natives can progress and prosper together.

Children of birth tourists are unlikely to be exceptions to these general trends. The main difference between them and other migrants is that their parents carefully planned to be in the US at just the right time. Such foresight and planning is a positive trait, not a negative one.

To be sure, some such children might turn out bad, growing up to be criminals, terrorists, and so on. But the same is true of some proportion of virtually any group of many thousands of people. There is no reason to categorically exclude all members of such groups based on that possibility. Under that approach, the US should have barred the ancestors of virtually all current US citizens. After all, most of those ancestors were migrants who were members of groups that included some criminals and other malefactors.

There is also the possibility that the parents might leave the United States and never return, taking the kids with them. But if so, the children may live out their lives elsewhere, and their being US citizens would not cause anyone any harm (albeit also creating little benefit). If they then return to the US as adults many years later, there is no reason to think that would, on average, be harmful either. For example, there is no evidence that children of birth tourists have become significant sources of espionage or threats to national security.

Perhaps some of these adult returnees will be bad voters. But if so, they are highly unlikely to be a large enough group to influence electoral outcomes. Besides, it’s unlikely they would be much worse than the the electorate we already have, which suffers from widespread ignorance and bias.

To the extent that some small percentage of immigrants or children thereof are dangerous, the best approach is not to exclude large numbers of innocent people in order to forestall a few criminals, but to shift resources away from enforcing immigration restrictions to ordinary law enforcement. That is likely to do far more to reduce crime overall, while posing less danger to civil liberties.

I am not an unequivocal supporter of birthright citizenship. Elsewhere, I have explained why it’s a “second-best policy.” It would be much better if people had a right to freedom of movement regardless of where they happened to be born. That would also eliminate the need for “birth tourism.”

In sum, birth right tourism is legally irrelevant to the constitutional issue that the Supreme Court decided. And it’s a relatively minor phenomenon that isn’t a problem at all. It would be good to have more of it!

The post Responding to the "Birth Tourism" Objection to Birthright Citizenship appeared first on Reason.com.

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