Republicans Just Killed California’s E.V. Mandate. Will They Regret It?

As the House of Representatives has been debating its one big, beautiful bill this week, the Senate has been considering a contentious vote of its own.

On Tuesday, Senate Majority Leader John Thune (R–S.D.) said that the Senate would move forward with a vote over three Congressional Review Act (CRA) resolutions—a law that allows Congress to overturn federal rules with a simple majority—to rescind air pollution regulations in California. 

Under the Clean Air Act, states are not allowed to set their own vehicle air pollution standards, except California, which must request a waiver from the Environmental Protection Agency (EPA) before implementing new rules. While states can’t set their own rules, they are allowed to adopt California’s and, as of 2025, 17 states and the District of Columbia have done so. 

In the final days of the Biden administration, the EPA granted California exemptions for a rule that requires 100 percent of car sales in the state to come from zero-emission vehicles by 2035 and two others that set strict emissions standards for heavy-duty vehicles. 

On Thursday, the Senate voted 51–44 to overturn these EPA waivers. Sen. Elissa Slotkin (D–Mich.) was the only Democrat to vote with Republicans, but identical measures recently passed the House of Representatives with broader bipartisan support. 

While Republican opposition to the waivers is not surprising, the use of the CRA has stoked a debate about Senate rules which could have implications for future policymaking.

In March, the Government Accountability Office (GAO) said these waivers were not rules “for purposes of CRA” and thus the CRA could not be used to overturn California’s regulations. Senate parliamentarian Elizabeth MacDonough, the nonpartisan official in charge of interpreting Senate rules, deferred to the GAO and ruled that these resolutions would need to pass with 60 votes. 

Senate Republicans still moved forward and were able to pass the CRA resolutions with a simple majority by “effectively kicking the question about what qualifies under the Congressional Review Act back to the Senate to determine,” reports Politico

The Senate has overruled the parliamentarian only a handful of times. Sen. Sheldon Whitehouse (D–R.I.) said that with this vote, Republicans “violated the plain text of the Congressional Review Act, changed the Clean Air Act, and broke the filibuster.”

Darren Baskt, director of the Center for Energy and Environment at the Competitive Enterprise Institute (CEI), disagrees, telling Reason, “This whole issue is about some Senators wanting to ban gas-powered cars. The procedural argument has been a desperate ploy to ensure California and its blue state allies can reshape the nation’s car and truck industry.” 

CEI recently sent a letter co-authored by Baskt to the Senate, which argued that the CRA is exempt from the filibuster and the parliamentarian was never authorized to interpret these resolutions in the first place. 

“The Congressional Review Act establishes a process around the filibuster, and the Senate is merely using the CRA as it was designed,” says Baskt. “To stress, the entire issue is narrow in scope and limited to CRA resolutions, which are distinct from regular legislative business. It is not an attack on the filibuster, and if it were, I’d be objecting to the action.”

Philip Rossetti, a senior fellow at the R Street Institute, tells Reason that “if the CRA can’t be used on a waiver then Congress’ role in overseeing regulations would be substantially lessened.” For instance, the executive branch could begin to issue waivers instead of federal rules to skirt CRA oversight. 

While Senate Republicans might be within their legal rights to move forward with the CRA, it could start a dangerous precedent. In 2021, MacDonough nixed the Democrat’s plan to include a federal minimum wage increase in the American Rescue Plan. If the parliamentarian’s word doesn’t matter (or matters less), what’s to stop Democrats from attaching unrelated policies to large spending bills in the future? 

There are also other ways to overturn California’s waivers without using the CRA. The president could use the Administrative Procedures Act to claw back the waivers, which would take about a year to complete. But “that’s a big concern because affected industries need to know sooner rather than later if they need to make investments today to comply with future regulatory requirements,” according to Rossetti. 

Ultimately, the issue stems “from the fact that the president has a lot of regulatory power, and Congress has very little oversight,” says Rossetti. For instance, former President Joe Biden was able to “implement almost two trillion dollars of regulatory costs without needing any buy-in from the public.” 

While E.V. mandates are harmful and expensive, it’s worth wondering if Republicans made the right decision overturning these waivers through the CRA and if the decision will hurt them in the future. 

Whitehouse seems to think so. “Make no mistake, Democrats will not forget this, and Republicans will rue this day,” he warned.

The post Republicans Just Killed California's E.V. Mandate. Will They Regret It? appeared first on Reason.com.

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“Listen, the Media Deserves Some Blame, Too”: “You Guys Should Not Have Believed Us So Easily”

From Mediaite (Zachary Leeman) yesterday:

“Original Sin” co-author Alex Thompson revealed a Democratic insider told him they were “amazed” at how “easily” the media swallowed “spin” about former President Joe Biden’s health….

It goes on to quote Thompson:

The media fell short, and the biggest example of that is, if the media was on top of this, then Biden’s debate performance should not have been such a shock to so many people ….

I had one conversation with someone, this was after the election, while we were reporting this book, and this person said, “Listen, yes, we deserve blame for X, Y, Z. We were hiding him. We were.” But this person also sort of got in my face, and they said, “Listen, the media deserves some blame, too.” Like we were sort of amazed at some of the stuff we were able to spin and get on….

They’re just like, “You guys should not have believed us so easily.” And I thought that was like a really interesting, but I also think that’s true. I think the media, and in a lot of ways, was not skeptical enough and did not remember the less that, they do it to different degrees, but every White House lies.

This reminds me of the essay I prepared for the Free Speech in Crisis & the Limits of the First Amendment in March; I was invited to participate on the Media Environment panel, for which the description was:

It is widely believed that a profoundly broken media system is responsible for bringing the current administration into power, and for critics, the political crisis it has unleashed. Is this correct? And if so, what is to be done about it? How can public opinion be harnessed to serve constitutional purposes in the new media landscape? How can and should the media system be reformed? And what can free speech law do about any of this?

We were all asked to write up to about 2000 words on our topics, and I include below the current draft of my submission (a version of which I blogged March 31). I hope to revise it, if there’s time before the essays are published at Balkinization, to include part of Thompson’s quotes, and to cite Original Sin.

[* * *]

The 2024 presidential campaign saw a massive disinformation and misinformation campaign, which likely helped bring the current administration into power. Leading media organizations failed to stop it in time. Indeed, some of them were complicit, through inadequate investigation and perhaps even willful blindness, in the misinformation. We thus face an urgent question, raised by the workshop organizers: “How can and should the media system be reformed?”

I’m speaking, of course, of the campaign to conceal President Biden’s mental decline—a campaign that was only conclusively exposed by the June 27, 2024 debate. At that point, little time was left for deciding whether the President should be persuaded to step aside; for the actual persuasion; for the selection of a replacement; and for the replacement’s attempt to persuade the people to elect her.

Had the Administration leveled with the public earlier, or had the media exposed the concealment earlier, there would likely have been time for a full primary campaign, in which Democratic voters could have made their choice about whom to run against Donald Trump.[1] Perhaps that candidate would have been more effective than Kamala Harris. Or perhaps the candidate would have still been Harris, but a Harris who was seen as having more legitimacy with the public. “Democracy Dies in Darkness,” the Washington Post tells us. It appears that the Democratic Party’s prospects died in this particular darkness.

The single most consequential fact of the 2024 Presidential campaign had thus been largely hidden for a long time, including from (and, perhaps unwittingly, by) the media organizations whose job it is to inform us. Indeed, this a fact not just of immense political significance, but also central to national security: If President Biden was indeed cognitively impaired, that bore on his ability to make decisions as President, not just his ability to be re-elected.

When, for instance, Trump and Vance spread unfounded rumors of Haitian immigrants eating cats and dogs, the media rightly blew the whistle. But when some media outlets tried to point out the evidence of Biden’s likely incapacity, others didn’t pick up on the investigation—and, indeed, sometimes pooh-poohed the investigation.

As late as mid-June 2024, the White House and many of its supporters characterized videos of Biden apparently freezing up and seeming confused as “cheap fake” disinformation created by his enemies.[2] Indeed, as Nate Silver has noted, “some coverage endorsed the White House party line, particularly in its tendency to characterize claims about Biden’s acuity as ‘misinformation.'”[3] Only Biden’s televised debate performance on June 27, 2024 made it impossible to deny there was something badly wrong. It seems likely that many of the supposed “cheap fakes” actually accurately captured Biden’s cognitive slippage, especially since the slippage apparently went back a good deal before the debate.[4]

And even if some particular videos had indeed been disinformation from his enemies, the fact remains that the media failed to adequately identify the disinformation from his friends. Indeed, isn’t it shocking that so many White House reporters appear to have learned thanks only to the nationally televised debate and not to their investigative journalism?

Of course, reaching the truth on this question wasn’t easy. Biden insiders apparently tried hard to conceal the facts (that’s the disinformation part). And indeed it’s not surprising that people who are both personally loyal to a President and rely on the President’s success for their ongoing careers would want to conceal such facts. In our fallen world, we can’t expect much candor from political insiders. And I expect most journalists sincerely believed the reassurances they were getting from the insiders.

But getting sincerely duped isn’t a great professional mark for a journalist.[5] Their job was to dig and find out—before things became evident, not after (and indeed some indications of Biden’s decline were indeed evident for some time before the debate[6]). Indeed, to the extent that the media’s credibility has declined over recent years, such failures of investigation seem likely to only exacerbate this decline.

Undoubtedly, the White House wanted to keep this fact [of Biden’s decline] under wraps until Biden was safely over the finish line in November. But media organizations that participated, even unwittingly, in this farce have not only made a subsequent Democratic administration far less likely—they have profoundly undermined their own integrity.[7]

* * *

How could this happen? I hope we will learn more about this in the years to come. A CNN headline the day I wrote this discussed a forthcoming book by Jake Tapper and Alex Thompson called “Original Sin: President Biden’s Decline, Its Cover-Up, and His Disastrous Choice to Run Again.”[8]

But at this point, at least a first cut—informed by our shared knowledge of human nature—is that many in the media likely didn’t dig hard because they didn’t really wanted to uncover things.[9] It isn’t controversial, I think, that most in the mainstream media much preferred President Biden over his challenger, Donald Trump.[10] Indeed, I agree they had good reason to dislike Trump. Certainly Trump himself had done much to stoke that hostility.

“Biden is cognitively impaired” was a standard talking point on the Right. So long as Biden was the nominee, that fact, if demonstrated, would help Trump. (As I’ve argued, if the fact helped Democrats replace Biden with a better candidate, it might have hurt Trump, but that would have been a less direct chain of causation.) It’s human nature to accept stories that fit one’s political preferences than to challenge them. A thought experiment: If the sitting President in 2024 had been a Republican—whether Trump or, say, an older Ron DeSantis—would the media have acted the same way they did? Or would they have worked harder, dug deeper, and uncovered the truth earlier?

Yet of course institutions should be designed to counteract the flaws generated by human nature while working within the constraints created by human nature. (That knowledge was old when Madison was young.) This is true of media institutions as well as governmental ones. There need to be mechanisms to keep reporters’ and editors’ inevitable ideological predilections from turning into ideological blinders and ideological blunders.

Of course, it’s much easier to identify the problem than a suitable solution. One can imagine, for instance, newspapers deliberately seeking out reporters and editors with many different ideological beliefs, hoping that colleagues will fill each others’ blind spots (or, in collegial conversations, help each other identify their blind spots). But this may be hard to implement; and, as with preferences based on race and sex, preferences based on politics may be challenged as leading to hiring based on ideology rather than merit. (They may also be defended, as with preferences based on race and sex, as a tool for fighting subconscious bias that keeps meritorious candidates from being fairly considered.) Indeed, hiring that considers applicants’ ideological beliefs may violate some states’ laws that limit employment discrimination based on political ideology or party affiliation,[11] just as hiring that considers applicants’ religious beliefs may violate bans on employment discrimination based on religion.

Newspapers might also return to prohibiting reporters and editors from publicly opining on controversial issues. Of course, realistic readers will recognize that reporters may still be biased. But taking a public stand on an issue may increase such bias: If one has publicly endorsed position X, it might become harder to write fairly about evidence that instead tends to support the rival position Y. Few of us like writing something that suggests that we were mistaken in the past, or that our critics can interpret as making such a suggestion.

Again, though, in some jurisdictions such public neutrality rules for newspaper employees may violate state employment statutes. One state court held (by a 5–4 vote) that those statutes themselves violate the First Amendment when applied to newspaper reporters or editors.[12] But in AP v. NLRB (1937), the U.S. Supreme Court held (also 5–4) that federal labor law, which bans discrimination based on union membership, didn’t violate the Associated Press’s rights to select reporters or editors.

Likewise, one can imagine newspapers and magazines deliberately courting a broad ideological mix of readers—not just for the extra revenue, but also to commit themselves to having a base that they will need to be seen as treating fairly. A publication that has many readers on the left, right, and center might feel more pressure to be fair and careful to all sides. Of course, it may be hard these days to acquire such a broad reader base. And there’s always the danger that concern about reader reactions may press a newspaper to avoid controversial topics altogether, rather than to try handling them fairly.

Finally, newspapers can just try to recommit themselves to objectivity, fuzzy as the term may sometimes be. (Many commentators have expressly taken the opposite view.[13]) In their news coverage, they may recommit to discussing the best arguments on both sides of contested issues. In choosing what to cover, they may try hard to see what both sides of the aisle view as especially important. On their editorial pages, they may avoid a party line, either instituted top down[14] or by staff revolts.[15] Instead, they may adopt the policy that whatever ideas are shared by at least substantial minorities of the public should be seriously covered, even when editors think that one side is obviously wrong.

Again, though, that’s easier said than done (and it’s not even that easily said). It will inevitably require hard choices that will leave many observers skeptical about the media organization’s fairness —e.g., which sides of a multi-sided issue should be covered, which topics are important enough to cover, which positions are such outliers that they can be set aside, how to allocate scarce space and attention. And it may not do much to solve the problem we began with, which is the ability of media organizations to be massively duped by the side they sympathize with.

Thus, these solutions are likely to be far from perfect. The cures may even be worse than disease.

But there is indeed a disease, “a profoundly broken media system” (to quote the workshop organizers). This system is one that the public has good reason to distrust. Its flaws undermine the media’s ability to check government malfeasance. It may have been so captured by the desire to #Resist one movement that it failed to resist the disinformation spread by another. And it may thus have ended up helping the very candidate and movement that it had (understandably) viewed as dangerous.

 

[1] See, e.g., Chris Whipple, Uncharted: How Trump Beat Biden, Harris, and the Odds in the Wildest Campaign in History 201 (2025) (quoting Leon Panetta, White House Chief of Staff under Clinton and Secretary of Defense under Obama, as making this point); Jonathan Allen & Amie Parnes, Fight: Inside the Wildest Battle for the White House 86 (2025) (quoting “a Biden ally” as making the same point); id. at 90 (inferring that long-time Democratic Speaker of the House Nancy Pelosi held a similar view); Josh Barro, This Is All Biden’s Fault, N.Y. Times, Nov. 11, 2024; Four Writers on What Democrats Should Do, N.Y. Times, June 30, 2024.

[2] See, e.g., Hanna Panreck, Karine Jean-Pierre Doubles Down on ‘Cheap Fake’ Biden Videos: ‘So Much Misinformation’, Fox News, June 19, 2024.

[3] Nate Silver, Did the Media Blow It on Biden?, Silver Bulletin, May 15, 2025, https://ift.tt/EqXZF9I.

[4] See, e.g., Annie Linskey & Siobhan Hughes, Behind Closed Doors, Biden Shows Signs of Slipping, Wall St. J., June 4, 2024; Michael Williams, George Clooney Says Democrats Need a New Nominee Just Weeks After He Headlined a Major Fundraiser for Biden, CNN, July 10, 2024; David Gilmour, CNN’s Jake Tapper Argues Biden White House Misled Public ‘All the Time’ With ‘Cheap Fake’ Spin, Mediaite, May 14, 2025, https://ift.tt/smktGxl.

[5] See, e.g., Colby Hall, I Look Back on It With Humility’: Jake Tapper Says He Covered Biden’s Cognitive Issues, But Admits ‘Not Enough’, Mediaite, May 14, 2025, https://ift.tt/smktGxl.

[6] See Silver, supra note 3 (describing many such indications, and noting, “when something is an open secret to the extent Biden’s condition was among elites—to the point that many people close to him felt it jeopardized national security—you’d hope for the press to report on it more aggressively”); see also Paul Mirengoff, Joe Biden’s Steep Decline: A Tale of Two Coverups, Ringside at the Reckoning, May 16, 2025, https://ift.tt/3ePg6ys.

[7] Robby Soave, Why Didn’t the Media Notice Joe Biden’s ‘Jet Lag’ Sooner?, Reason, July 3, 2024.

[8] See also Whipple, supra note 1 (similarly discussing, among other things, Biden insiders’ attempt to conceal Biden’s cognitive impairment); Allen & Parnes, supra note 1 (making the same point).

[9] See Mirengoff, supra note 6.

[10] Cf. The American Journalist, Key Findings from the 2022 American Journalist Study (reporting that 51.7% of journalists identified as Independent, 36.4% Democrat, 8.5% Other, and 3.4% Republican). I appreciate that this is an online survey, and one that doesn’t specifically ask about views on Trump; but it reinforces what is generally seen as conventional wisdom, and I’ve seen no data pointing in the opposite direction.

[11] See Eugene Volokh, Should the Law Limit Private-Employer-Imposed Speech Restrictions?, 2 J. Free Speech L. 269 (2022); Eugene Volokh, Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation, 16 Tex. Rev. of L. & Pol. 295 (2012).

[12] See Nelson v. McClatchy Newspapers, 131 Wash. 2d 523 (1997).

[13] See, e.g., Leonard Downie Jr., Newsrooms That Move Beyond ‘Objectivity’ Can Build Trust, Wash. Post, Jan. 30, 2023.

[14] See, e.g., Washington Post Owner Jeff Bezos Says Opinion Pages Will Defend Free Market And ‘Personal Liberties’, PBS News, Feb. 26, 2025.

[15] See, e.g., Marc Tracy, James Bennet Resigns as New York Times Opinion Editor, N.Y. Times, June 7, 2020.

The post "Listen, the Media Deserves Some Blame, Too": "You Guys Should Not Have Believed Us So Easily" appeared first on Reason.com.

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Gary Winslett: The American Dream Has Migrated South

Why did the Rust Belt really lose its manufacturing base? Middlebury College political scientist Gary Winslett has a provocative answer: It wasn’t China or robots. It was Georgia, Texas, South Carolina, and Florida. In a recent Washington Post op-ed, Winslett argued that the South’s pro-growth policies—not foreign competition or automation—were the real drivers behind the industrial shift. That makes for an uncomfortable narrative in a political environment where both parties have a stake in telling more convenient stories about trade and globalization.

Winslett explains how factors like “right to work” laws, housing construction, regulatory efficiency, and immigration made the South more attractive to manufacturers. The conversation moves beyond nostalgia for lost factories and asks whether the American dream now lies in places like Nashville and Raleigh—and whether we’re too busy looking backward to notice.

Sources Referenced:

Chapters:
  • 00:00 What really happened to Rust Belt jobs?
  • 05:11 The politics of the manufacturing decline
  • 10:22 Nostalgia and the rise of southern manufacturing
  • 15:20 Unionization, right to work, and labor policy
  • 20:43 How immigration and housing fueled southern growth
  • 26:02 Why the Rust Belt didn’t adapt
  • 32:21 Permitting, regulation, and business friendliness
  • 38:36 Trade deficits and service exports
  • 44:05 The myth of manufacturing as America’s future
  • 50:01 Remote work and the class divide
  • 56:26 Upward mobility and bipartisan economic failure

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Gary Winslett: The American Dream Has Migrated South

Why did the Rust Belt really lose its manufacturing base? Middlebury College political scientist Gary Winslett has a provocative answer: It wasn’t China or robots. It was Georgia, Texas, South Carolina, and Florida. In a recent Washington Post op-ed, Winslett argued that the South’s pro-growth policies—not foreign competition or automation—were the real drivers behind the industrial shift. That makes for an uncomfortable narrative in a political environment where both parties have a stake in telling more convenient stories about trade and globalization.

Winslett explains how factors like “right to work” laws, housing construction, regulatory efficiency, and immigration made the South more attractive to manufacturers. The conversation moves beyond nostalgia for lost factories and asks whether the American dream now lies in places like Nashville and Raleigh—and whether we’re too busy looking backward to notice.

Sources Referenced:

Chapters:
  • 00:00 What really happened to Rust Belt jobs?
  • 05:11 The politics of the manufacturing decline
  • 10:22 Nostalgia and the rise of southern manufacturing
  • 15:20 Unionization, right to work, and labor policy
  • 20:43 How immigration and housing fueled southern growth
  • 26:02 Why the Rust Belt didn’t adapt
  • 32:21 Permitting, regulation, and business friendliness
  • 38:36 Trade deficits and service exports
  • 44:05 The myth of manufacturing as America’s future
  • 50:01 Remote work and the class divide
  • 56:26 Upward mobility and bipartisan economic failure

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Supreme Court: Children Of Illegal Aliens Or Tourists Are Not U.S. Citizens

Supreme Court: Children Of Illegal Aliens Or Tourists Are Not U.S. Citizens

Authored by Gabriel Canaan via American Thinker,

On the very day Donald Trump became president again, he signed an executive order prospectively eliminating birthright citizenship for children born to aliens unlawfully present in the United States.

Immediately, lawsuits were filed in a half-dozen jurisdictions across the country challenging this order.

The groups bringing these suits claim the order disrupts long-standing legal norms governing citizenship. Yet, in fact, Trump’s contention — that birthright citizenship is not possessed by children of illegal aliens under the “correct interpretation of the law” — is exactly right.

Birthright citizenship is conventionally understood to apply to any child born in the United States, regardless of the immigration status of that child’s parents. This view is based on the common law principle of jus soli (“right of soil”), which is said to be incorporated in the Citizenship Clause of the Fourteenth Amendment. This understanding of the Citizenship Clause, however, despite its prevalence in academia and political commentary, is based on a mistaken and incomplete reading of controlling Supreme Court precedent.

In fact, birthright citizenship, as provided for in the Citizenship Clause, as that clause has been authoritatively construed by the Supreme Court, is possessed only by children born in the United States to at least one parent who is lawfully residing in the United States.

Ratified in the aftermath of the Civil War with the aim of remedying the injustices of the Dred Scott decision, the Fourteenth Amendment granted citizenship to “all persons born … in the United States, and subject to the jurisdiction thereof.” This latter phrase has been wrongly equated with “subject to the laws thereof,” and thus to entail that all persons born in the United States are U.S. citizens, with only a few narrow exceptions, such as children born to diplomats.

Yet the Supreme Court has construed the phrase “subject to the jurisdiction” more narrowly, most notably in seminal cases that have been taught — well or ill — in law schools ever since.

In the 1884 case Elk v. Wilkins, decided when American Indians were increasingly integrating into mainstream American society, presented the constitutional issue of whether Indians who had been born within the allegiance of a tribe were “subject to the jurisdiction” of the United States at birth, and thus born American citizens under the Fourteenth Amendment.

The Court ruled that they were not “subject to the jurisdiction” of the United States, on the ground that “jurisdiction” in the Citizenship Clause meant complete jurisdiction, which implied “direct and immediate allegiance” to the United States. The parents of children born in the allegiance of a tribe had only indirect and intermediate allegiance to the United States, through their tribe. (Today, by a subsequent act of Congress, Indians born on reservations are U.S. citizens at birth.)

Twelve years later, in Wong Kim Ark v. United States, the citizenship status of an American-born man of Chinese descent was the issue.

Wong Kim Ark had been born in San Francisco to Chinese nationals, and had been denied entry to the United States after returning from a visit to China as an adult. At the time, Chinese nationals were precluded by treaty from naturalizing as U.S. citizens. Nevertheless, after recounting the history of the common-law jus soli doctrine, and its influence on our Constitution, the Court held that, because the petitioner had been born to parents lawfully residing in the United States, he had been born within the “allegiance and protection” of the United States, and therefore at birth was “subject to the jurisdiction” of the United States. He was thus born a citizen under the Fourteenth Amendment.

That the petitioner’s parents had resided here with the permission of the United States was central to the Court’s holding. Chinese nationals who remain “subjects of the Emperor of China…are entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here,” the decision reads, “and are ‘subject to the jurisdiction thereof,’ in the same sense as all other aliens [lawfully] residing in the United States” (emphasis added). The Court explained that to “reside,” in this usage, means to live in a place with the intent to remain there, but not necessarily indefinitely. It is a broader category than “domiciled,” and could apply to long-term visa holders, as well as to lawful permanent residents.

The Court’s interpretation of the Citizenship Clause of the Fourteenth Amendment thus limits its application to children of aliens residing in the country with permission. This requirement implies that children born to foreign nationals living in the country without permission are not subject to its jurisdiction, and that mere tourists, since they are only visiting and do not reside here, also are not so subject. This crucial qualification of common law birthright citizenship by the requirements of both residence and permission therefore excludes from citizenship at birth children both of tourists and of those residing in this country without permission — that is, illegal aliens.

To disregard these requirements would involve interpreting the Court to mean that illegal aliens are within the “allegiance and protection” of the United States.

But the Court specifically stated otherwise, holding that Chinese nationals who were not permitted to reside in the United States were not within its allegiance and protection. The Court could hardly have held otherwise. The phrase “allegiance and protection” describes the reciprocal obligations of citizens and the state that are foundational to a nation. Since illegal aliens are at all times subject to apprehension and deportation, they can hardly be regarded as within the “protection” of the United States.

In further evidence that Wong Kim Ark held that illegal aliens are not subject to the jurisdiction of the United States for citizenship purposes, the Court cited to its own earlier ruling in another immigration case, from 1893, Fong Yue Ting v. United States. There, the Court addressed the legal status of non-resident or unlawfully-present aliens: while they are subject to our laws, they remain outside the government’s “complete jurisdiction.” Had the Court held in Wong Kim Ark that all children born in the United States and subject to its laws — such as illegal aliens—were citizens, it would have run afoul of the combined holdings of Elk — that jurisdiction for citizenship purposes means complete jurisdiction — and of Fong Yue Ting — that illegal aliens and non-resident aliens are outside the complete jurisdiction of the United States. The residence and permission requirements of Wong Kim Ark are therefore necessary to harmonize that case with those prior cases.

Wong Kim Ark’s inclusion of residence and permission requirements marks the Court’s departure from the English common law understanding of birthright citizenship in favor of one more compatible with American constitutional principles.

Indeed, leading constitutional scholars at the time noted that the American approach required residence while the British did not.

The doctrine of jus soli as articulated by common law scholars such as Coke and Blackstone is a product of feudalism: a subject owes a duty of perpetual loyalty to the Crown under the protection of which he is born.

In stark contrast, the American Revolution severed the colonies’ duty to the king in favor of a compact operating by consent of the governed rather than by perpetual, unchosen duty. The purpose of the Civil Rights Act and the Fourteenth Amendment was not to reinstate the common law version of birthright citizenship; rather, it was to extend the principles of the Declaration of Independence to freed slaves and to nonwhite immigrants such as Chinese-Americans.

As it is currently applied, birthright citizenship not only returns us to a feudal past, but also undermines the ability of the people of the United States to set forth standards by which children born to foreign nationals may become citizens. It incentivizes “birth tourism” and mass illegal immigration, both of which treat the United States as a provider of material benefits rather than a political community towards which one owes allegiance and duties. Unlike illegal aliens and temporary guests, lawful permanent residents are incentivized to invest in their political community, and to adopt the customs and civic responsibilities of that community. Their children’s subsequent inheritance of those responsibilities further facilitates assimilation and social cohesion.

The rule of Wong Kim Ark v. United States reflects the compact approach to self-government inherent in the founding principles of this country while serving the purpose of the Fourteenth Amendment. Applying the rule as it was intended to be understood would remedy the above-mentioned policy deficiencies of an over-expansive view of birthright citizenship without the need to amend the Constitution, and efficiently resolve the flurry of lawsuits against President Trump’s executive order.

Gabriel Canaan is an attorney at the Immigration Reform Law Institute (IRLI) in Washington, DC.  A native of Southern California, he is a graduate of William & Mary Law School, and, prior to joining IRLI, served as a law clerk on the U.S. Senate Committee on Homeland Security & Governmental Affairs.

Tyler Durden
Thu, 05/22/2025 – 14:50

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Senate Nullifies California’s Signature Gas-Car Ban, Sends Bill To Trump

Senate Nullifies California’s Signature Gas-Car Ban, Sends Bill To Trump

The U.S. Senate voted 51–44 to overturn California’s ban on gasoline-powered vehicles by 2035, sending the measure to President Trump’s desk for signature.

The vote nullifies a Biden-era Environmental Protection Agency waiver that allowed California to set stricter emission standards than federal rules under the Clean Air Act. The vote also marks a significant blow to leftist climate radicals pushing de-growth green policies aimed at shaping vehicle emission standards at a national level. 

Nearly all Democrats voted against repealing the EV mandate, except Senator Elissa Slotkin (D-Mich.), who broke ranks to support the measure—likely due to her home state’s deep ties to America’s legacy automakers in Detroit. Senate Majority Leader John Thune (R-S.D.) blasted the Biden-era EPA waiver, calling it an “attempt by the Biden administration to impose an electric vehicle mandate across the country.” 

As of May, eleven states, plus Washington, D.C., have adopted California’s plan to phase out new gasoline-powered car sales by 2035. The new requirements faced strong opposition from the Alliance for Automotive Innovation, an auto trade group representing BMW, Ferrari, Ford, General Motors, Honda, and many other manufacturers. Also, the U.S. Chamber of Commerce argued the 2035 target was unrealistic and would harm the economy because it was de-growth in nature. 

Republicans, led by West Virginia Senator Shelley Moore Capito, called Biden-era EPA waiver a federal overreach and a threat to consumer choice and jobs. 

“Today, the Senate voted to end California’s EV mandate and send my joint resolution of disapproval under the CRA to President Trump’s desk. The Biden administration and Congressional Democrats tried to block the will of the American people from this attempt by extreme unelected California and Biden EPA bureaucrats to ban gas-powered cars throughout the country, but Congress has now spoken and soundly rejected this rule,” Capito stated. 

She continued, “The impact of California’s waiver would have been felt across the country, harming multiple sectors of our economy and costing hundreds of thousands of jobs in the process. I’m proud to have led this effort to protect American workers and consumers from this radical and drastic policy.” 

Democrats in the Senate are watching key climate policies—linked to the Green New Deal—begin to unravel under President Trump’s first four months in office. The rollback is evident not only in the automotive sector, with efforts to block EV mandates, but also in utilities, where fossil fuel generation is desperately needed to stabilize fragile power grids amid the surge in demand from AI data centers and overall electrification trends. 

Environmental groups, such as the Natural Resources Defense Council, were furious with the vote, calling the move by Republicans “an unprecedented and reckless attack on states’ legal authority to address the pollution causing asthma, lung disease, and heart conditions.” 

“It is going nuclear,” Minority Leader Chuck Schumer said on Wednesday evening, adding this would enable MAGA Republicans to hijack the rules, erode “away at the Senate and undermine this institution they claim to care about.”

Meanwhile, the climate change policies have sparked a number of national security threats, first being the potential for unreliable power grids, plus flooding the nation with foreign solar panels has created a major issue:

And risk plunging into a net-zero death like Spain several weeks ago… 

All in all, the Trump administration is bringing back energy policy common sense after four years of disastrous climate change nonsense that only boosted inflation. 

Tyler Durden
Thu, 05/22/2025 – 14:25

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Trump Admin Blocks Harvard From Enrolling International Students, Requires Current Foreign Students To Transfer ‘Or Lose Legal Status’

Trump Admin Blocks Harvard From Enrolling International Students, Requires Current Foreign Students To Transfer ‘Or Lose Legal Status’

Harvard is having a really bad year. From feds yanking billions in grants, to House Republicans alleging ties to the Chinese military, to President Trump threatening their tax-exempt status, to detained embryo-smuggling scientists (and most of that’s just this month), the university has now been blocked from enrolling international students – which constitute nearly 1/3 of Harvard admissions.

“I am writing to inform you that effective immediately, Harvard University’s Student and Exchange Visitor Program certification is revoked,” according to a letter sent to the university by DHS Secretary Kristi Noem, which they promptly shot over to the NY Times. The university has 72 hours to hand over requested information.

The decision followed a back-and-forth in recent days over the legality of a wide-ranging records request by the Department of Homeland Security.

According to Bloomberg, existing foreign students must transfer or lose their legal status, the notice reads.

In April DHS threatened to block Harvard from enrolling international students if the university refused to hand over detailed records about the student body containing “relevant information” on student visa holders who have been involved in “known illegal” or “dangerous” activity.

It is a privilege to have foreign students attend Harvard University, not a guarantee,” Noem wrote in an April letter. “The United States government understands that Harvard University relies heavily on foreign student funding from over 10,000 foreign students to build and maintain their substantial endowment.”

Harvard dug in last month following the Trump admin’s demands – with president Alan Garber saying in a statement “No government — regardless of which party is in power — should dictate what private universities can teach, whom they can admit and hire, and which areas of study and inquiry they can pursue.”

Not So Fast?

Concurrently, a federal judge in California has blocked the Trump administration from terminating the legal status of international students nationwide while a court case challenging previous terminations is pending.

The order by U.S. District Judge Jeffrey S. White in Oakland bars the government from arresting or incarcerating the plaintiffs and similarly situated students; from transferring any of them outside the jurisdiction of their residence; from imposing any adverse legal effect on students and from reversing the reinstatement of the legal status until the case is resolved. Students can still be arrested for violent crimes. –AP

According to White, the government’s actions “wreaked havoc not only on the lives of Plaintiffs here but on similarly situated F-1 nonimmigrants across the United States and continues do so.”

Read Noem’s letter below (emphasis ours):

Harvard’s Student and Exchange Visitor Program Decertification

I am writing to inform you that effective immediately, Harvard University’s Student and Exchange Visitor Program certification is revoked.

As I explained to you in my April letter, it is a privilege to enroll foreign students, and it is also a privilege to employ aliens on campus. All universities must comply with Department of Homeland Security requirements, including reporting requirements under the Student and Exchange Visitor Program regulations, to maintain this privilege. As a result of your refusal to comply with multiple requests to provide the Department of Homeland Security pertinent information while perpetuating an unsafe campus environment that is hostile to Jewish students, promotes pro-llamas sympathies, and employs racist “diversity, equity, and inclusion” policies, you have lost this privilege.

The revocation of your Student and Exchange Visitor Program certification means that Harvard is prohibited from having any aliens on F- or J- nonimmigrant status for the 2025-2026 academic school year. This decertification also means that existing aliens on F- or J- nonimmigrant status must transfer to another university in order to maintain their nonimmigrant status.

This action should not surprise you and is the unfortunate result of Harvard’s failure to comply with simple reporting requirements.

On April 16, 2025, I requested records pertaining to nonimmigrant students enrolled at Harvard University, including information regarding misconduct and other offenses that would render foreign students inadmissible or removable. On April 30, 2025, Harvard’s counsel provided information that he represented as responsive to my request. It was not.

As a courtesy that Harvard was not legally entitled to, the Acting DHS General Counsel responded on my behalf and afforded Harvard another opportunity to comply. Harvard again provided an insufficient response.

Consequences must follow to send a clear signal to Harvard and all universities that want to enjoy the privilege of enrolling foreign students, that the Trump Administration will enforce the law and root out the evils of anti-Americanism and antisemitism in society and campuses.

If Harvard would like the opportunity of regaining Student and Exchange Visitor Program certification before the upcoming academic school year, you must provide all of the information requested below within 72 hours.

Please be advised that providing materially false, fictitious, or fraudulent information may subject you to criminal prosecution under 18 U.S.C. § 1001. Other criminal and civil sanctions may also apply.

I expect full and complete responses to the following requests:

  1. Any and all records, whether official or informal, in the possession of Harvard University, including electronic records and audio or video footage, regarding illegal activity whether on or off campus, by a nonimmigrant student enrolled in Harvard University in the last five years.
  2. Any and all records, whether official or informal, in the possession of Harvard University, including electronic records and audio or video footage, regarding dangerous or violent activity whether on or off campus, by a nonimmigrant student enrolled in Harvard University in the last five years.
  3. Any and all records, whether official or informal, in the possession of Harvard University, including electronic records and audio or video footage, regarding threats to other students or university personnel whether on or off campus, by a nonimmigrant student enrolled in Harvard University in the last five years.
  4. Any and all records, whether official or informal, in the possession of Harvard University, including electronic records and audio or video footage, regarding deprivation of rights of other classmates or university personnel whether on or off campus, by a nonimmigrant student enrolled in Harvard University in the last five years.
  5. Any and all disciplinary records of all nonimmigrant students enrolled in Harvard University in the last five years.
  6. Any and all audio or video footage, in the possession of Harvard University, of any protest activity involving a nonimmigrant student on a Harvard University campus in the last five years.

Developing…

Tyler Durden
Thu, 05/22/2025 – 14:12

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Putin Isn’t Ready To End War In Ukraine, Trump Told Allies In Private

Putin Isn’t Ready To End War In Ukraine, Trump Told Allies In Private

European leaders have been alarmed in the wake of their May 19 conference phone call with President Trump, as they believe he’s prepared to given Putin a free hand in Ukraine, and is unwilling to impose more sanctions or further confront Moscow in a muscular way. He has also reportedly conveyed that the war is not my problem and that Russia and Ukraine will have to settle it on their own.

He reportedly informed European leaders, which had included French President Emmanuel Macron, Italian Prime Minister Giorgia Meloni, Finnish President Alexander Stubb, German Chancellor Friedrich Merz, European Commission President Ursula von der Leyen, European Council President Antonio Costa, as well as Ukrainian President Volodymyr Zelensky – that Putin is not ready for peace in Ukraine because he believes he is winning the war.

“On a call Monday, President Trump told European leaders that Russian President Vladimir Putin isn’t ready to end the Ukraine war because he thinks he is winning, according to senior European officials familiar with the conversation,” The Wall Street Journal, which is the first to reveal the statements, writes.

European leaders had long believed thisbut it was the first time they were hearing it from Trump, these officials said. It also ran counter to what Trump has often said publicly, that he believes Putin genuinely wants peace,” the report continues. They hope with this admission that Trump will escalate in support of Ukraine, but he has remained resistant to this pressure. And of course, this isn’t what his voters want, nor is it (escalation) the majority position of the American people.

AFP/Getty Images

The White House has frequently said that it assesses Putin is genuine about seeking peace, in pushback to critics – including in Kiev – who say the Kremlin is just using the talks to stall as the Russian military makes slow advances on the ground, and further weaken Ukraine’s front lines.

The result is that Europe and Kiev want Trump to ramp up support to Kiev and punish Russia, which would lead to escalation in the war, but Trump is refusing to go along with this strategy:

One of the officials, who was on the call, said Trump began the discussion by saying, “I think Vladimir does not want peace.”

Although Trump appears to have come around to the idea that Putin isn’t ready for peace, the officials said, that hasn’t led him to do what the Europeans and Ukrainian President Volodymyr Zelensky have been arguing he should do: double down on the fight against Russia.

This elicited surprise among the Europeans, who concluded that Trump seems relatively content at what he’s been hearing from Putin in phone calls. 

Another key line from the WSJ report focuses on Trump’s rejection of an ‘unconditional’ ceasefire in Ukraine:

Some of the Europeans on the call Monday insisted that the outcome of any talks at the Vatican must be an unconditional cease-fire. But Trump again demurred, saying he didn’t like the term “unconditional.” He said he had never used that term, although he used it when calling for a 30-day cease-fire in a post on his Truth Social platform on May 8. The Europeans eventually agreed to drop their insistence on the adjective.

Or to put it another way, Trump simply understands how negotiations work in reality and that Putin holds the cards and Zelensky isn’t holding much, if any.

All of this is also a simple acknowledgement that of course Putin doesn’t want peace which does not result in the Russian-speaking eastern territories being under the Russian Federation, as well as Crimea.

Moscow certainly isn’t interested in a truce deal which still results in NATO military infrastructure right on its door step. Putin has long warned that NATO expansion means that another war would have to be fought in the future, even if the current Ukraine conflict ends.

The current mainstream media framing of Trump’s efforts are intent on painting him as a Kremlin-sympathetic compromiser, when really he’s just recognizing the reality of the Russian perspective, combined with the realization the West can’t really do anything about it (short of military escalation which risks nuclear confrontation).

Tyler Durden
Thu, 05/22/2025 – 13:35

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Moderna Withdraws Application For Combination COVID-19–Influenza Vaccine

Moderna Withdraws Application For Combination COVID-19–Influenza Vaccine

Authored by Zachary Stieber via The Epoch Times (emphasis ours),

Moderna on May 21 said it withdrew its application for a license for its combination vaccine against COVID-19 and influenza.

A sign marks the headquarters of COVID-19 vaccine maker Moderna in Cambridge, Mass., on April 28, 2022. Brian Snyder/Reuters

The move came “in consultation with” the Food and Drug Administration, which decides on licensing applications, the Massachusetts-based pharmaceutical company said in a brief statement.

The combination shot is known as mRNA-1083.

“The Company plans to resubmit the [application] later this year, after vaccine efficacy data from the ongoing Phase 3 trial of its investigational seasonal influenza vaccine, mRNA-1010, are available,” Moderna stated. “Moderna continues to expect interim data from the mRNA-1010 trial to be available this summer.”

Moderna and some other vaccine makers began testing combination COVID-19–flu shots during the COVID-19 pandemic. The company said in 2024 that its combination vaccine performed well in a phase 3 clinical trial. Moderna researchers said in May that in the trial, the vaccine elicited immune responses that were at least as good as those from standard influenza vaccines and its COVID-19 vaccine.

Moderna had asked for licensure for its combination vaccine for people aged 50 and older, a population that is among the most susceptible to both influenza and COVID-19.

There are no combination COVID-19 vaccines on the market.

Pfizer and BioNTech reported in 2024 that their combination COVID-19–influenza vaccine in a phase 3 trial triggered immune responses against an influenza A strain and COVID-19 that were at least as good as those seen after flu and COVID-19 vaccination, but that the antibody levels were lower against influenza B for people who received the combination shot than the levels triggered by standard flu vaccination.

“We are committed to developing vaccines that will reduce the burden of respiratory diseases and believe that combination vaccines are the most efficient way to do this,” Annaliesa Anderson, a Pfizer senior vice president, said at the time. “Today’s results provide insight and direction towards achieving this goal, and we remain optimistic about our combination COVID-19 and influenza program, for which we are evaluating the next steps.”

Moderna’s announcement came one day after FDA officials said they would not approve COVID-19 vaccines for many Americans without trial data showing that the benefits of the shots outweigh the risks.

We want to know more about what the products are doing, especially as we enter the seventh, eighth, ninth doses,” Dr. Vinay Prasad, head of the FDA’s Center for Biologics Evaluation and Research, said at a town hall.

He also noted that the FDA plans to approve vaccines based only on antibody data for people older than 65 and for younger people who have at least one factor that places them at higher risk of severe COVID-19, as determined by the Centers for Disease Control and Prevention, such as obesity. FDA officials estimate that 100 million to 200 million Americans fall into one of those groups.

Just 13 percent of children and 23 percent of adults, according to CDC data, have received one of the currently available COVID-19 vaccine formulations.

Tyler Durden
Thu, 05/22/2025 – 13:10

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“AI, Free Speech, and Duty”

Just two weeks ago, my Free Speech Unmuted co-host Prof. Jane Bambauer (Florida) and I discussed Garcia v. Character Technologies. (Besides being a leading First Amendment scholar, Jane also teaches and writes about tort law.) I’m therefore especially delighted to pass along some thoughts from her on yesterday’s decision in the case:

AI, Free Speech, and Duty [by Jane Bambauer]

The case against Character.AI, based on the suicide of a teenager who had become obsessed with his Daenerys Targaryen chatbot, produced an important opinion yesterday. Judge Conway of the U.S. District Court in Orlando declined to dismiss almost all of the plaintiffs’ claims, and also refused “at this stage in the litigation” to treat AI or chatbot output as speech under the First Amendment. I think the opinion has problems.

Eugene has already laid out some of the reasons that the court’s First Amendment analysis is flawed. (E.g., could the Florida legislature really pass a law banning ChatGPT from producing content critical of Governor DeSantis? Of course not.) I want to pile on a little bit—I can’t help myself—and then connect the free speech issues to the analysis of tort duty.

Is Chatbot Output “Speech”?

The defendants (Google and Character AI) argued that chatbot output is protected speech, much like computer-generated characters in video games. The defendants made analogies to other expressive technologies that were once new as well. But the court found that these arguments “do not meaningfully advance their analogies” because the defendants didn’t explain how chatbot output is expressive.

In the court’s opinion, with an assist from Justice Barrett, chatbot output is not expressive because it is designed to give listeners the expression that they are looking for rather than choosing for them:

The Court thus must decide whether Character A.I.’s output is expressive such that it is speech. For this inquiry, Justice Barrett’s concurrence in Moody on the intersection of A.I. and speech is instructive. See Moody, 603 U.S. at 745–48 (Barrett, J., concurring). In Moody, Justice Barrett hypothesized the effect using A.I. to moderate content on social media sites might have on the majority’s holding that content moderation is speech. Id. at 745–46. She explained that where a platform creates an algorithm to remove posts supporting a particular position from its social media site, “the algorithm [] simply implement[s] [the entity’s] inherently expressive choice ‘to exclude a message.'” Id. at 746 (quoting Hurley v. Irish-American Gay, Lesbian and Bisexual Grp. of Boston, Inc., 515 U.S. 557, 574 (1995)). The same might not be true of A.I. though—especially where the A.I. relies on an LLM:

But what if a platform’s algorithm just presents automatically to each user whatever the algorithm thinks the user will like …? The First Amendment implications … might be different for that kind of algorithm.

This reasoning was ill-conceived when Justice Barrett first wrote it. When the Disney company greenlights a superhero movie, it’s plausible that a decision to make a movie about people flying around and looking cool is mostly or even entirely motivated by giving paying movie-goers whatever they want, and that they would choose the backstory, dialog, wardrobe, and everything else to maximize profits if they could. But this wouldn’t change the fact that the movie is speech.

Justice Barrett’s reasoning is even more untenable in a case against chatbots. Is there really any doubt about the nature of written correspondence responding to a person’s prompts and questions? It’s difficult to conceive of a more expressive product than words designed to address the questions and interests that a listener has actively cultivated and asked for.

Lest there be any doubt, Judge Conway’s own opinion, just a couple sections later, can’t help but use the word “expression” to describe chatbot output. When discussing the products liability claim, Judge Conway decided that the case may proceed to the extent the product claim is based on the app’s failure to confirm users’ ages or to give users greater control over excluding indecent content, and not on the actual content of the conversations. “Accordingly, Character A.I. is a product for the purposes of Plaintiff’s product liability claims so far as Plaintiff’s claims arise from defects in the Character A.I. app rather than ideas or expressions within the app” (emphasis added). This analysis seems correct to me, and by restricting the products claims the court has sidestepped the First Amendment defenses that media defendants typically bring to design defect cases. My point here is just to show that the court couldn’t even get through its own opinion without referring to chatbot output as expression.

Free speech first principles also strongly suggest that AI-generated content is protected. In my opinion, the most basic and sensible core value for free speech is what Seanna Shiffrin called the thinker-based approach to the First Amendment, focusing on the audience as thinkers. This asks whether a law interferes with the “free development and operation of a person’s mind.”  More than any other theory of free speech, even the democratic self-governance theory, this one gets at the heart of what most Americans love and expect from the First Amendment: that the government will not interfere with the voluntary development of inner thoughts. A diary should receive First Amendment protection even though it doesn’t match the usual human-speaker-to-human-listener paradigm. So, too, should a person alone with their chatbot have the freedom to explore the expressive output of AI.

So I think the court flubbed an opportunity to get the free speech question right. Still, the First Amendment does not automatically require the dismissal of the plaintiff’s claims, since it still remains possible that there might be an exception to the First Amendment for certain kinds of negligent speech that causes physical harm. I am particularly interested in the deep questions related to general principles of duty.

Does General Purpose Service Create a General Duty of Care?

Character.AI argued that it did not owe a duty of care to its users. The court disagreed. The opinion explained:

“a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others.” McCain v. Fla. Power Corp., 593 So. 2d 500, 503 (Fla. 1992).

Florida’s rule for duty is similar to most other states, and basically boils down to a “conduct plus foreseeability” test. If you take an act that introduces a new force into the world, and that force foreseeably creates risks to others, then you have a duty to conduct your affairs in a manner that is reasonable. (Contrast this with just standing there while others call out for help. Assuming that nothing you did caused the person to need assistance in the first place, you can stand there with impunity, under common law tort principles, because you owe no duty.)

Judge Conway easily finds that Character.AI owed a duty in this case:

Defendants, by releasing Character A.I. to the public, created a foreseeable risk of harm for which Defendants were in a position to control. Accordingly, Plaintiff sufficiently alleges Defendants owed a duty “either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.” McCain, 593 So. 2d at 503 (quoting Kaisner v. Kolb, 543 So. 2d 732, 735 (Fla. 1989)).

Yet in truth, the conduct + foreseeability test is not quite right. There are many activities where courts don’t impose a legal duty even though, viewed at a particular point in time or with enough abstraction, the acts of the defendant clearly would foreseeably increase a risk of some type of hazard.

There is no better illustration of this, in fact, than duty rules in suicide inducement cases. Long before this case, courts struggled to select a duty rule that takes account of the fact that suicidal people typically exercise their own agency. Courts do allow negligence claims to proceed, even in the absence of a special relationship, but plaintiffs often have to show more than simple conduct + foreseeability. Otherwise, almost any action taken with or near a depressed person could trigger a legal responsibility for their care. Thus, courts struggle with the best duty rule. The Restatement (Second) of Torts rule related to suicide recognizes liability for negligent conduct if it (1) “brings about delirium or insanity in another” and (2) while that condition of delirium or insanity continues to exist, it “makes it impossible for him” or her to resist the suicidal impulse by depriving that person of the capacity to reasonably control his or her conduct and not carry out the suicidal impulse. (Restatement (Second) Torts § 455.) Some states have chosen rules that provide more avenues to recovery than the Restatement (Second) rule, and others have foreclosed negligence cases based on suicide entirely.

In other words, even putting aside the speech aspect of this case, a court should struggle with the facts of this case, and the rule for duty should be more searching and careful. Duty is the element that often takes a peek at the other elements that a plaintiff will have to prove (breach, causation, damages) and imagines the impact of repeated cases. Where good policy would require limiting duty, the “conduct plus foreseeability” rule should be modified.

Can Risky Speech Create a Duty of Care?

The court’s First Amendment analysis does have some impact on the duty analysis, too. If the court had recognized chatbot output as speech, then it would have to recognize the parallel between this case and the wide range of cases brought against other media defendants. There have been multiple unsuccessful claims that popular movies and music glamorizing violence or self-harm have foreseeably caused some members of their audience to commit suicide. Ozzy Osbourne’s song “suicide solution” alone attracted multiple lawsuits (see, e.g., McCollum v. CBS, Inc.(Cal. App. 1988)). And indeed, compared to the rather ambiguous messages produced by Character.AI—messages like “Please come home to me as soon as possible, my love”—Osbourne’s song was pretty overt in its message:

Why try, why try
Get the gun and try it
Shoot, shoot, shoot

But in art, even overt messages are rarely straightforward. Doesn’t Romeo and Juliet glamorize suicide? Given the chilling effect of liability on speech, foreseeability alone cannot suffice to force authors and media companies to defend themselves, and to show that they took “reasonable precautions” to reduce the risk that some portion of their audience will be inspired to do something harmful.

But that isn’t the whole story. There have been cases where a defendant has unreasonably increased the risk of suicide through speech alone. These involve cases of one-on-one communications between the defendant and the decedent, such as the criminal conviction of Michelle Carter who urged her friend to get back into his fume-filled truck and complete his suicide attempt. And media defendants are not completely immune, either. In one case, a tort claim was allowed to go forward against a news company when it broadcast a telephone call between its reporter and the suicidal person while the crisis and police standoff was still taking place.

The difference between the two types of cases is the nature of the communication: In a one-to-many form of expression, the foreseeability of a sort of stochastic risk of harm will not suffice to overcome free speech protections. But in one-to-one communications, foreseeability is much more particular.

So which type of defendant is Character.AI? Is it the one-to-one defendant that is directly and specifically interacting with the decedent (analogous because of the highly customized nature of the output)? Or is it the one-to-many media defendant that is putting its content out more generally (analogous because the human decision-making at Character.AI stopped well before the particular messages at issue in the case)?

A case that Judge Conway cites in her opinion (but much earlier, and for another proposition) suggests one-to-many.  In Twitter v. Taamneh, the Supreme Court applied standard principles of tort law to find that Twitter, Google and other social media firms do not owe a duty of care to all potential victims of terrorism even though they knew, at the time of offering service, that several terrorist organizations were using their platforms to recruit new members. The reasoning in Taamneh is very applicable to this case as well, so I will quote it at length:

[T]he only affirmative “conduct” defendants allegedly undertook was creating their platforms and setting up their algorithms to display content relevant to user inputs and user history. Plaintiffs never allege that, after defendants established their platforms, they gave ISIS any special treatment or words of encouragement. Nor is there reason to think that defendants selected or took any action at all with respect to ISIS’ content (except, perhaps, blocking some of it). Indeed, there is not even reason to think that defendants carefully screened any content before allowing users to upload it onto their platforms. If anything, the opposite is true: By plaintiffs’ own allegations, these platforms appear to transmit most content without inspecting it.

The mere creation of those platforms, however, is not culpable. To be sure, it might be that bad actors like ISIS are able to use platforms like defendants’ for illegal—and sometimes terrible—ends. But the same could be said of cell phones, email, or the internet generally. Yet, we generally do not think that internet or cell service providers incur culpability merely for providing their services to the public writ large. …

To be sure, plaintiffs assert that defendants’ “recommendation” algorithms go beyond passive aid and constitute active, substantial assistance. We disagree. … Viewed properly, defendants’ “recommendation” algorithms are merely part of that infrastructure. All the content on their platforms is filtered through these algorithms, which allegedly sort the content by information and inputs provided by users and found in the content itself. As presented here, the algorithms appear agnostic as to the nature of the content, matching any content (including ISIS’ content) with any user who is more likely to view that content.

There are some differences in the Character.AI case—most especially that there is no other third-party bad actor that can be held morally or legally responsible in this case. But the key is that the court assigned a duty of care to the defendant based on a very early action—offering the Character.AI service at all—rather than based on conduct and decisions that put a narrow set of vulnerable people at heightened risk of a particular hazard. Said the court:

Defendants, by releasing Character A.I. to the public, created a foreseeable risk of harm for which Defendants were in a position to control.

This sweeps much too broadly, in my view.

My Take

As a policy matter, I see the logic of establishing duty in this case to make sure there is an incentive in the industry to develop AI in a way that reduces risks to vulnerable users or to third parties. If the court had limited its finding of duty to certain facts—such as the plaintiff’s age—it would be harder to find fault with the court’s approach. But on balance, I believe market and reputational forces will do enough to induce reasonable AI precautions, and formal tort duty is likely to cause overdeterrence unless it is carefully cabined. The general duty of care established in this case will force the AI industry to aggressively monitor and police its users, to the detriment of all. Requiring AI companies to guard against the full range of risks will severely harm AI development. The pruning will cut off the branch that feeds the root.

More generally, I can’t help but return to the nature of this case as a state intrusion into the life of the mind. I fear we have lost faith in the most basic commitment to free thought. From one of the Ozzy cases [with citations removed]:

The life of the imagination and intellect is of comparable import to the presentation of the political process; the First Amendment reaches beyond protection of citizen participation in, and ultimate control over, governmental affairs and protects in addition the interest in free interchange of ideas and impressions for their own sake, for whatever benefit the individual may gain. The rights protected are not only those of the artist to give free rein to his creative expression, but also those of the listener to receive that expression. The central concern of the First Amendment … is that there be a free flow from creator to audience of whatever message a film or book might convey. The central First Amendment concern remains the need to maintain free access of the public to the expression.

I believe, in this case, that the teenager who took his life had become obsessed with the AI character that he had developed. It is a tragedy, and it would not have happened if Character.AI had not existed. But that is not enough of a reason to saddle a promising industry with the duty to keep all people safe from their own expressive explorations.

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