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OK Anti-Woke Teachers Test From Prager U Is Impossible To Fail
from the what's-the-point-of-this-again? dept
The Ryan Walters saga of stupid continues. Walters is the Superintendent of Oklahoma, where he oversees a state education system that ranks near the bottom among states, while also carving out time to lick Donald Trump’s boots as thoroughly as possible. Between naked attempts to sell the Trump bible in state schools and attempting to make Trump’s favorite election conspiracy theories part of the state’s curriculum, you would think that he would be in MAGA’s good graces. Unfortunately, due to his own verbal missteps and a strange occurrence of mild porn showing up on a TV screen in a school board meeting, the administration has been giving him the cold shoulder as of late.
Perhaps as part of a plan to get back in MAGA’s good graces, Walters also announced that transplant teachers from “woke” states like New York and California would be forced to take an “anti-woke” teaching exam before being granted a teacher’s license. This supposed exam was to be developed by Prager U, itself a propaganda outfit run by Dennis Prager.
Here’s how Walters described the test back when we first wrote about it.
Ryan Walters, Oklahoma’s superintendent for public instruction, told CNN that if applicants do not pass the test, they will not earn a teaching certificate to be able to teach in public schools in the state this school year, which begins for some Oklahoma districts on Monday. The superintendent’s office notified CNN on Friday that it had not yet been released as of noon, but that it was coming soon.
So, if you don’t pass the test, you don’t get a teacher’s license. I asked at the time what was to keep so-called nefarious, woke-minded, uber-communists from the Soviet states of New York and California from simply, you know, lying on the tests?
Well, it turns out I was overthinking it even by wondering that out loud. It turns out that the test is one in which failure is impossible.
First reported by Quorum Call’s Shawn Ashley, the 34-question test is available on the state department’s website. StateImpact took the test and confirmed it is impossible to fail. If test-takers respond incorrectly, they’re prompted to try again until they land on the correct answer. The test includes several questions on biological sex and transgender rights, as well as others on civics and U.S. history.
At the end, test-takers are presented with a certificate affirming the “demonstrated understanding of foundational civic knowledge and commitment to traditional American values, in alignment with the educational principles upheld by the State of Oklahoma.”
And so the open question is that what is the point of this test, other than more performative ego-fondling of the Trump administration? A test you can’t fail certainly isn’t “weeding out” all of these woke transplants looking to move to Oklahoma from the coasts. A test that let’s you keep answering the question until you get it “right” is less about withholding teacher’s licenses and more about the compulsory affirmation of Walters’ personal beliefs before the license is granted. So what are we even doing here?
Asked if a test that’s impossible to fail is effective at achieving this goal, Walters’ office did not respond.
“Sorry, that is not right. Try again.” This isn’t WarGames. Not playing is not an answer.
Filed Under: education, maga, oklahoma, performative nonsense, ryan walters, teachers, woke
Companies: prageru
Kristi Noem Lies, Says National Guard Deployments To ‘Blue’ Cities Aren’t Politically Motivated
from the call-this-bluff dept
Kristi Noem made an appearance on “Face the Nation” last week, squaring off against Ed O’Keefe of CBS News. CBS, of course, has already engaged in plenty of capitulation. And O’Keefe’s interview — while containing some probing questions — didn’t contain much push back against numerous bogus claims made by DHS head Kristi Noem.
Somehow, it still managed to make Noem angry enough she rolled onto X to complain about CBS “whitewashing” her unproven claims about Kilmar Abrego Garcia by removing them from the televised broadcast. She conveniently refused to inform her frothy fan base that by the time she got around to complaining, CBS had already released the full transcript and the full recording.
Kudos to CBS for refusing to allow Noem to use it as a bullhorn for a bunch of potentially slanderous claims about Abrego Garcia’s alleged criminal actions, none of which have been proven in court and few of which (some stuff about CSAM) haven’t even been alleged by the DOJ in any court.
But back to the point at hand: here’s something that’s obviously a lie, but didn’t receive any serious push back from the interviewer. After a few questions about Trump’s invasion of Washington DC (taking control of local law enforcement, sending in the feds and the soldiers), O’Keefe noted the Blowhard in Chief was now threatening Chicago (and other cities) with the same sort of stuff that’s already been witnessed in Los Angeles and Washington D.C.
O’Keefe:
Are you planning, beyond Chicago, to expand these kinds of operations to other cities? There have been reports, for example, that Boston may very well soon be next.
Here’s the relevant part of Noem’s rambling response about “law enforcement readiness” and “making cities safer,” etc.:
I’d encourage every single big city, San Francisco, Boston, Chicago, whatever they are, if they want to help make their city safer, more prosperous, allow people the opportunity to walk in freedom, like the people of Washington, DC are now, and enjoying going out to eat at night and not having to worry if they’re going to be a victim of a carjacking or a robbery, they should call us.
The list of cities provided by Noem is telling. While there’s a bit of a perfunctory nod to the rest of the nation in there, the cities named are all cities MAGA/Trump hates because they’re run by Democratic leaders and/or exist in a “blue” state. Also, leading the list of crimes that people might be experiencing with those recently experienced by ex-DOGE staffer “Big Balls” in Washington DC (which prompted Trump’s takeover of the city) is another indication Trump doesn’t really care about violent crime. What he cares about is exacting revenge on cities and citizens he doesn’t think love him enough.
To his credit, O’Keefe did try to drill down on this:
You mentioned, there, a bunch of cities in Democratic-controlled states with Democratic mayors, and there have been a lot of questions asked about that focus. There are Republican cities with major crime issues as well, and we haven’t heard about plans to deploy, say, to Dallas or to Oklahoma City, or to cities in Louisiana, Alabama, and Mississippi that have considerable crime rates, in some cases higher, percentage-wise, than those other cities you mentioned. Are there plans to go to red states and Republican-controlled cities in this kind of way?
It’s not only a fair point, it’s an accurate point. There are plenty of states and cities with higher crime rates than those being vengefully targeted by Trump. But no moves have been made to bring those locales under federal control because, well… we all know exactly why it’s not happening.
But Noem is a true Trumpian: when the truth is obvious, just keep lying because it’s the only move you have and it’s the only move you know.
SEC. NOEM: Absolutely. Every single city is evaluated for what we need to do there to make it safer. So we’ve got operations that, again, I won’t talk about details on, but we absolutely are not looking through the viewpoint at anything we’re doing with a political lens. It is what can we do to make sure that we’re continuing to get up every day and to fight for the American citizen, and that they have the chance to go out there and pursue the American dream.
No one believes that, especially not the person saying that. Everything is viewed through a political lens by this administration. That’s why some states and cities get emergency funds and federal responses to natural disasters and other states are bled dry because they didn’t collectively vote the right way during this election. Or the election before it. Or the election before that.
But it’s worse than simply politicizing things that shouldn’t be politicized, like federal emergency aid or school funding or crosswalk colors. It’s the petty vindictiveness that really sets this administration (both times) apart. Noem knows this as well as anyone. After all, three days after her return to South Dakota to pick up an honorary degree at a college campus in Madison SD was greeted by protesters, two businesses in that town were raided by ICE.
Everyone knows this martial law test run is meant to put places where Trump feels he has “enemies” on a short leash. Despite Noem’s (obviously facetious) suggestion that anyone in any city who feels crime is a problem should “call” the federal government and ask for help, even Trump’s fans and supporters in “red” cities and states aren’t going to do that. They may stand and applaud every assault on “blue” localities, but they definitely don’t want to be the person calling down that sort of oppression on their own constituents. It’s a party of liars, cowards, bullies, and please-tread-on-me masochists. What this party lacks completely is integrity or credibility. The sad thing is that it really doesn’t seem to matter.
Filed Under: chicago, detroit, dhs, donald trump, kristi noem, martial law, national guard, police state, trump administration, washington dc
Disney, ESPN Sue Sling TV For The Crime Of Streaming TV Pricing Innovation
from the this-is-why-we-can't-have-nice-things dept
Earlier this month, Dish’s Sling TV unveiled a rare bit of innovation in an increasingly enshittified streaming video market. They began offering what they called “mini-subscriptions,” allowing users to subscribe to live streaming TV for the day, weekend, or a full week for prices starting at around $5. It was a nice option for folks who don’t want, or can’t afford, increasingly costly monthly subscriptions.
But alas, the idea may not last. ABC/Disney/ESPN quickly sued to scuttle SlingTV’s offerings (see docket), claiming they violate the companies’ existing carriage agreements:
“Sling TV’s new offerings, which they made available without our knowledge or consent, violate the terms of our existing license agreement,” a Disney spokesperson said in a statement provided to Deadline. “We have asked the court to require Dish to comply with our deal when it distributes our programming.”
Disney claims that any contract length shorter than a month is outside of the authorized scope of existing carriage agreement. A Sling TV spokesperson said Disney’s lawsuit is “meritless”:
“We are aware of what has been filed and believe Disney’s lawsuit is meritless. We will vigorously defend our right to bring customers a viewing experience that fits their lives, on their schedule and on their terms.
We are excited about our new pass subscriptions and the overwhelmingly positive response we’ve received from fans looking for simple, affordable ways to enjoy the content they love.”
While Disney may or may not be legally correct (the exact terms of these agreements aren’t made public), it’s still annoying. In large part because the streaming video sector has been busy lately demonstrating that they’re all out of original ideas and want to make nickel-and-diming consumers a central pillar of their business strategy. Just like the traditional cable giants they once disrupted.
Streaming executives have recently been spending their time trying to goose quarterly earnings by relentlessly raising prices, harassing people for sharing streaming passwords, refusing to pay creatives their owned residuals, and proposing shitty, pointless mergers that largely result in layoffs and shittier products.
Streaming execs have forgotten all of the lessons from the very recent past. They’re increasingly behaving just like the cable giants they disrupted by failing to innovate, refusing to compete seriously on price, and generally being obnoxious assholes. Whether via piracy or innovative new competitors, they’re destined to see the same fate as the monolithic cable giants that preceded them, at which point, as per tradition, they’ll blame everything (VPNs!) and everyone (generational entitlement!) but themselves.
Filed Under: carriage, competition, pricing, streaming, tv, video
Companies: disney, espn, sling
Judge Mehta’s Google Antitrust Remedies: Threading The Needle Between Overkill And Underkill
from the surprisingly-reasonable,-but-still-messy dept
Last summer, when Judge Amit Mehta ruled that Google had violated antitrust laws through its search distribution agreements, I was left wondering what the hell any reasonable remedy would look like. The case always struck me as weird—Google was paying billions to Apple and Mozilla to be the default search engine because users actually wanted Google as the default. Any remedy seemed likely to either do nothing useful or actively harm the very competitors it was supposed to help.
Well, Mehta just dropped his remedial ruling, and honestly? It’s more reasonable than I expected, though still messy in predictable ways.
The Big Picture: No Chrome Breakup Or Android Sell Off, But Real Constraints
The DOJ had pushed for some truly bonkers structural remedies, including forcing Google to sell off Chrome or Android. Mehta wasn’t having it:
Google will not be required to divest Chrome; nor will the court include a contingent divestiture of the Android operating system in the final judgment. Plaintiffs overreached in seeking forced divesture of these key assets, which Google did not use to effect any illegal restraints.
This makes sense. As discussed before, under antitrust law, structural breakups should relate to the actual violation. The problem wasn’t Chrome or Android—it was the exclusive deals that locked up search distribution. Breaking up unrelated business units would be pure punishment without purpose and could (again) do more damage to competitors than to Google itself.
The Exclusive Deals Ban: Logical But Concerning
The core remedy targets the actual problem—Google’s exclusive distribution agreements:
Google will be barred from entering or maintaining any exclusive contract relating to the distribution of Google Search, Chrome, Google Assistant, and the Gemini app.
This tracks the violation, which is good. But here’s where it gets tricky. The ruling also says:
Google will not be barred from making payments or offering other consideration to distribution partners for preloading or placement of Google Search, Chrome, or its GenAI products.
So Google can still pay Apple and Mozilla, just not exclusively? That seems like a distinction that might not make much practical difference. If Google can outbid everyone else (which they can), and Apple/Mozilla have admitted users get pissed when they don’t use Google as default, what exactly changes here?
The court was clearly aware of this problem. In fact, Mehta’s analysis of the downstream effects reads like a catalog of unintended consequences that would make any antitrust reformer wince:
The complete loss or reduction of payments to distributors is likely to have significant downstream effects on multiple fronts, some possibly dire. They could include:
- Lost competition and innovation from small developers in the browser market. … (stating that for Opera the loss of payments from Google “would make it hard for [it] to continue to invest in innovative solutions that [it] provide[s] for the US audience”). Mozilla, in particular, fears that lower revenue share payments could “potentially start a downward spiral of usage as people defected from our browser, which . . . could at the end of the day put Firefox out of business.” … (“Mozilla has repeatedly made clear that without these [revenue share] payments, it would not be able to function as it does today.”).
- Fewer products and less product innovation from Apple. … (Cue) (stating that the loss of revenue share would “impact [Apple’s] ability at creating new products and new capabilities into the [operating system] itself”). The loss of revenue share “just lets [Apple] do less.”…
- Less investment in the U.S. market by Android OEMs, which would reduce competition in the U.S. mobile phone market with Apple. …(“[I]f [Samsung is] not getting paid from Google in the revenue share that [it’s] currently getting, I think it will probably make [Samsung’s] position much weaker to innovate and provide . . . the latest technology and better services to our customer. . . . [W]e might face . . . a very difficult situation to continue our business.”); … (“If [Motorola] were not to receive [revenue share payments], it would have significant financial burdens on [its] business. . . . [A]dvanced resources in North America . . . would be put at risk if [it] were to lose this funding.”); … (“It is much more costly for [Verizon] to promote an [Apple] device than an Android device . . . . So the more the Android ecosystem loses share in the Verizon customer base, the more costly it is for Verizon, and that weighs on our [profit and loss].”).
- Higher mobile phone prices and less innovative phone features. … (“[S]ome of [Samsung] product[s] could end up increasing prices or defeature our product[s] to manage the profit, which will make our position very weaker in the market and especially in U.S.”); … (“[O]ne of the ways [AT&T] can help offset some of the cost of th[e] device subsidy and make the devices more affordable to consumers is to have the ability to seek distribution or revenue share agreements with search, but also other services.”); … (“[T]hose restrictions would prevent Google from entering into agreements similar to what [T-Mobile] ha[s] with the Android Activation Agreement, . . . the revenues from which [it] use[s] to help prop up the Android ecosystem through subsidies . . . et cetera.”); … (stating that Verizon’s RSA with Google “help[s] and fund[s] the promotion of devices and offset[s]” billions in subsidies).
The court cannot predict to any degree of certainty that one or more of these effects will in fact occur. But the risk is far from small, which is reason enough not to proceed with the remedy.
Think about the weird logic here: Google’s current payment structure has created an ecosystem where cutting off those payments would likely kill Firefox (a key browser competitor), leave Samsung and other Android manufacturers financially weakened against Apple, and potentially raise phone prices for consumers. Meanwhile, Google would save billions in payments and still likely retain most users anyway.
In such a scenario, keeping the money flowing is actually essential to greater competition.
Data Sharing: The Actually Interesting Bit
But here’s where Mehta may have found the real lever for change. Google will have to share search index and user interaction data with “Qualified Competitors”:
Google will have to make available to Qualified Competitors certain search index and user-interaction data, though not ads data, as such sharing will deny Google the fruits of its exclusionary acts and promote competition.
This could be genuinely transformative, but there are lots of questions about how it will actually work in practice. The biggest barrier to competing with Google isn’t just the exclusive deals—it’s the chicken-and-egg problem of needing massive scale to build a decent search index, but needing a decent search index to attract users that create scale. Google’s search index represents decades of crawling, indexing, and learning from user interactions across billions of queries. No startup can replicate that from scratch.
As DuckDuckGo noted in their remedies proposal, access to Google’s search results via API could actually level the playing field in ways that breaking up Chrome or Android never could (though DuckDuckGo has said that this remedy ruling is insufficient in its eyes). A competitor could potentially build a differentiated search experience—better privacy, different ranking algorithms, specialized vertical search—while leveraging Google’s underlying index as a foundation.
The court was careful to limit this:
The court, however, has narrowed the datasets Google will be required to share to tailor the remedy to its anticompetitive conduct.
The key word here is “narrowed.” Mehta isn’t requiring Google to hand over everything—which would raise legitimate privacy and security concerns—but specifically the datasets that flow from the scale advantages Google gained through its anticompetitive conduct. It’s an elegant solution that addresses the actual harm without creating new ones.
Google will also have to offer search and ads syndication services to qualified competitors:
Google shall offer Qualified Competitors search and search text ads syndication services to enable those firms to deliver high-quality search results and ads to compete with Google while they develop their own search technologies and capacity. Such syndication, however, shall occur largely on ordinary commercial terms that are consistent with Google’s current syndication services.
Think of this as mandated training wheels for search competitors. Google has to help rivals build their own search capacity using Google’s infrastructure, but only until they can develop their own. The “ordinary commercial terms” language is crucial—it prevents Google from pricing competitors out while ensuring the remedy doesn’t become a permanent subsidy.
The AI Wrinkle
What’s fascinating is how much generative AI looms over this entire ruling. As Mehta notes (GSEs is “general search engines”):
The emergence of GenAI changed the course of this case. No witness at the liability trial testified that GenAI products posed a near-term threat to GSEs. The very first witness at the remedies hearing, by contrast, placed GenAI front and center as a nascent competitive threat. These remedies proceedings thus have been as much about promoting competition among GSEs as ensuring that Google’s dominance in search does not carry over into the GenAI space. Many of Plaintiffs’ proposed remedies are crafted with that latter objective in mind.
This timing accident may have saved the case from irrelevance. When the DOJ first filed this lawsuit, Google’s search dominance seemed unshakeable. By the time Mehta was crafting remedies, generative AI had created the first credible alternative to traditional search in decades. Suddenly, preventing Google from extending its search monopoly into AI distribution became just as important as addressing its existing dominance.
Dozens of pages are devoted to the rise of LLM technology, as well as chatbots and agents. While it notes the limits of comparing Generative AI tech to search, it also notes how competitive the market is:
The GenAI space is highly competitive. See id. at 503:25–504:4 (Turley) (Q. And let’s talk about the [GenAI] space . . . . You consider that space to be very competitive; correct? A. Yes, absolutely.”); id. at 3335:19-23 (Collins) (“[Q.] How would you describe the current level of competition with respect to foundation models as compared to the course of competition over the years that you’ve seen? A. [It] is the most competitive market I’ve ever worked in.”); id. at 685:4-8 (Hsiao) (“Q. How would you describe the competitive space that the Gemini app occupies? A. I would say I don’t think I’ve seen a more fierce competition ever in my 20-some years of working in technology.”).
There have been numerous new market entrants. See id. at 685:9-13 (Hsiao) (“It’s explosive growth. There’s new entrants. . . . You know, Grok, DeepSeek, all sort of new emerging models that are really, really strong.” …. (Hitt) (“You see entrants like Grok or DeepSeek, that may not have existed six months ago, are now able to reach the level of performance to wind up in the top ten of these models.”); id. at 2459:21-23 (Pichai) (“You have seen over the last few months as many people have launched chatbots. Very quickly, these chatbots reach tens of millions of users.”).
Again, the ruling makes it clear that Generative AI tools and search aren’t exactly direct competitors yet, but there are signs of the market heading that way:
GenAI products may be having some impact on GSE usage. … (Cue) (testifying that the volume of Google Search queries in Apple’s Safari web browser declined for the first time in 22 years perhaps due to the emergence of GenAI chatbots). But GenAI products have not eliminated the need for GSEs. … (“ChatGPT already expanded what is possible for parts of Search, but users don’t yet use ChatGPT for the full range of Search needs.”); … (Hsiao) (testifying that Google tracks so-called “cannibalization” of Google Search by GenAI chatbots and the Gemini app is not diverting queries from Google Search to a significant degree today); … (Cue) (attributing the recent decline in Safari’s search volume to increasing usage of GenAI apps but recognizing these apps must improve to compete with Google Search); … (Opening Arg.) (Plaintiffs’ counsel acknowledging that general search and GenAI “are different but overlapping products” and that GenAI “is not a replacement for [s]earch today);
Again, it seems like Judge Mehta is properly trying to respond to the actual violations here and trying to make sure any remedies match that, without getting in the way of actual market forces at work.
Some Judicial Humility Is Nice To See
Throughout the ruling, Mehta acknowledges the fundamental challenge of antitrust remedies:
Notwithstanding this power, courts must approach the task of crafting remedies with a healthy dose of humility. This court has done so. It has no expertise in the business of GSEs, the buying and selling of search text ads, or the engineering of GenAI technologies. And, unlike the typical case where the court’s job is to resolve a dispute based on historic facts, here the court is asked to gaze into a crystal ball and look to the future. Not exactly a judge’s forte.
This is refreshingly honest. Courts suck at designing technology markets. The best they can do is try to remove barriers and let competition happen, rather than micromanage outcomes.
Still A Long Road Ahead
Of course, none of this matters immediately. Google will likely appeal (though, honestly, the result here might be worth not having to spend on an appeal and the uncertainty it would bring), and we’re looking at years more litigation before anything actually happens. By then, the entire search landscape might have been transformed by AI anyway.
But if this ruling does eventually stick, it’s not the disaster I feared it might be. It targets the actual problem (exclusive distribution deals), creates some potentially useful competitive tools (data sharing and syndication with proper limitations for privacy reasons), and avoids the worst structural remedies that would have helped no one.
The question remains whether any of this will actually create more competitive search engines. But at least it’s not actively making things worse, which, honestly, was my biggest fear going in. I had feared that the court wouldn’t properly thread the needle on remedies, and yet… this seems to have been done very thoughtfully and strikes what is likely a good balance.
Filed Under: amit mehta, android, antitrust, chrome, competition, doj, remedies
Companies: apple, google, mozilla
Fifth Circuit Reverses Lower Court, Shuts Down Texas University’s Illegal Drag Show Ban
from the well-there's-always-SCOTUS dept
In September 2023, Judge Matthew Kacsmaryk decided it was constitutional for a Texas university (West Texas A&M) to shut down a “PG-13” drag show. This was a decision he arrived at despite this being said (on the public record!) by the university official instituting the drag show ban:
In the statement to the WTAMU community yesterday, [WATMU President Walter] Wendler said the university “will not host” the March 31 event because, in his view, drag shows “denigrate and demean women” and that, in his view, “being created in God’s image is the basis of Natural Law.” Wendler said his beliefs about Christianity, and other religions including Buddhism and Judaism, as well as his views on feminism, blackface, quinceañeras, and Newton’s Third Law of Motion all shaped his decision to cancel the event — “even if the law of the land appears to require” WTAMU to host it.
(Un)holy shit. Wow. That is… a lot of stuff.
First, there’s the university president’s insistence that “natural laws” apparently handed down by a “God” are what’s actually in play here, rather than the actual laws handed down by the government he now works for.
And we can all assume Walter Wendler is massively wrong when it comes to views on feminism, blackface, the massively profitable quinceañera industry (which is rivaled only by the bar mitzvah industry here in the United States), as well as religions he doesn’t actually adhere to. But I’m extremely curious about his citation of Newton’s Third Law in support of his bigoted (and admittedly unlawful!) banning of drag shows at his university.
Here it is. Enjoy.
The WT community should live by the Golden Rule. As a Christian, I personally learned this in the book of Matthew, “So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets.” Buddhism expresses it this way: “Hurt not others with that which pains yourself.” Judaism states, “What you yourself hate, do to no man.” The law of reciprocity is at work in every known religion and society on the planet. Colloquially speaking, it is a manifestation of Newton’s Third Law of Motion, “For every action, there is an equal and opposite reaction.”
Oh. An “eye for an eye” or whatever — the sort of thing Jesus declared to be ultimately useless but still remains the sort of vindictive umbrage wielded by people who say things like “I believe every human being is created in the image of God” before declaring which of these images of God are allowed to access their constitutional rights.
Despite the self-owns performed by Walter Wendler, the district court allowed the ban on drag shows to continue, (irrationally) reasoning that drag shows simply weren’t politically expressive enough to count as free speech:
Because men dressed in attire stereotypically associated with women is not “overtly political” in a category of performative conduct that runs the gamut of transvestism — e.g., onnagata in kabuki, Sigma Chi fraternity brothers in a distasteful “ugly woman” contest, jogappa priests worshiping Yellamma, and Matt Damon depicting a Yale University thespian in “The Good Shepherd” — it is not clearly established that all drag shows are inherently expressive as defined in Johnson, 491 U.S. at 406.
Who would arrive at such an insane conclusion? Well, it would be a judge who’s more Walter Wendler than a bulwark against unconstitutional abuses of power. It would be a judge who’s every bit as bigoted as the man they chose to support by ignoring decades of free speech precedent.
Here’s a bit of Judge Kacsmaryk’s bio, courtesy of Slate’s Mark Stern:
Before joining the bench, the judge worked as an anti-abortion activist and served at the hard-right First Liberty Institute, which opposes abortion, In vitro fertilization, contraception, LGBTQ+ equality, and other supposed products of the “sexual revolution.”
That explains why this judge ruled the way he did.
The good news is that even the Fifth Circuit isn’t willing to sign off on this judge’s prejudices. As FIRE (which handled the lawsuit against WTMU) points out in its press release announcing this win, it’s expression that matters when it comes to First Amendment issues, not whether or not the disputed expression is “political.”
The majority opinion from Judge Leslie H. Southwick found a substantial likelihood that Spectrum WT’s First Amendment claims would prevail on the merits.
“Because theatrical performances plainly involve expressive conduct within the protection of the First Amendment, and because we find the plaintiffs’ drag show is protected expression,” the Fifth Circuit held Wendler’s censorship failed to pass constitutional muster.
This is something the university president even admitted was likely the case before instituting a ban even he believed was probably illegal. The Fifth Circuit doesn’t have any sympathy for the college’s case, especially as it has been represented by school president Walter Whateverthefuck (née Wendler).
The decision [PDF] runs only 39 pages, recounting the stuff that generated this appeal before (even more swiftly) rejecting the lower court’s reasoning and blocking Wendler from forcing his university to continue engaging in an unconstitutional drag show ban.
First, it shuts down the lower court’s rationale that something must be explicitly “political” or “so artistic no one would dare doubt its artistic merit” (I’m paraphrasing the last part) to be protected by the First Amendment.
We find no support in this court’s caselaw for the proposition that nonspeech conduct must be a work of fine art to receive First Amendment protection if it does not communicate a particularized message. Any such suggestion would be at odds with the guidance provided by the Supreme Court.
In addition, it was clear this particular drag show was communicating something beyond the vagaries of whatever the average drag show communicates. This one — in particular — had a deeper meaning:
This does not mean, though, that drag shows as described here fail to communicate such a message of support [for LGBTQ+ people]. Some do. The question is whether the plaintiffs’ intended drag show would have communicated a message. We consider context dispositive. The viewers of the drag show would have been ticketed audience members attending a performance sponsored by LGBT+ student organizations and designed to raise funds for an LGBT+ suicide prevention charity. Against this backdrop, the message sent by parading on a theater stage in the attire of the opposite sex would have been unmistakable.
The end result is an injunction blocking this bigoted school president’s unilateral ban of creative expression he personally doesn’t like. Without a doubt, this decision will be appealed because the Supreme Court is at least 5/4th-Trump hand puppets at this point in time. And, of course, Trump-appointee James Chien-Yue Ho is there to lay the groundwork for the inevitable appeal with his extremely stupid dissenting opinion that leads off with this:
Spectrum WT claims that it has a First Amendment right to put on a drag show in a public facility at West Texas A&M University. But university officials have determined that drag shows are sexist, for the same reason that blackface performances are racist. And Supreme Court precedent demands that we respect university officials when it comes to regulating student activities to ensure an inclusive educational environment for all. See Christian Legal Society v. Martinez, 561 U.S. 661 (2010).
I disagree with the Supreme Court’s decision in CLS. But I’m bound to follow it. And I will not apply a different legal standard in this case, just because drag shows enjoy greater favor among cultural elites than the religious activities at issue in CLS.
Insane. First, it was only a single university official who claimed drag shows were like blackface performances, and he said this in support of his blocking of the performance, even as he openly admitted his actions were most likely unconstitutional.
Drawing a line from drag shows to blackface to religious activities is intellectual dishonesty at its finest. No one in their right mind thinks drag shows are as offensive as blackface performances. And no one but this particular Judge Ho would seek to connect three disparate dots with a single sentence that also adds the phrase “cultural elites” to a document that should never contain a tacit admission of political alignment. Only the far right (which is all of the GOP at this point) uses the phrase “cultural elites” to characterize enemies it can’t better describe as anything but “woke.”
Ho’s use of this phrase in this context suggests the decline of blackface performance popularity is somehow the fault of cultural elites, who would rather see drag shows than Bible studies hosted at US universities. It also aligns with the current administration, whose main complaint with history museums and Park Service National Monuments is that they continue to highlight how awful slavery was, while the current administration would rather everyone just pay more attention to the inherent greatness of white people.
But the end result is what stands for the moment, Judge C. Ho’s subservient dissent notwithstanding. Banning artistic expression just because you personally dislike it should never be an option for public entities. This university president is now little more than a sunk cost the rest of the school should have the willingness to walk away from before he does any more damage to the school’s reputation, much less its bottom line.
Filed Under: 1st amendment, 5th circuit, drag show, free speech, matthew kacsmaryk, walter wendler
Daily Deal: The Courses Digest, Labs Digest, and Exams Digest Bundle
from the good-deals-on-cool-stuff dept
The Courses Digest, Labs Digest, and Exams Digest Bundle gives you unlimited access to expertly crafted online courses, interactive labs and study tools. Whether you’re aiming for industry-recognized certifications or expanding your tech expertise, this bundle will help you get there with courses on CompTIA, AWS, Microsoft, Cisco, Salesforce, and more. It’s on sale for $80.
Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.
Filed Under: daily deal
The Censorship Crybabies Are Now The Censors: FDA’s Vinay Prasad Uses Copyright Claims To Silence Critic
from the the-censorship-government-complex dept
It’s always fascinating to watch supposed “free speech warriors” reveal their true colors the moment they get a tiny bit of power. We’ve been covering the ongoing saga of various COVID contrarians who spent years falsely claiming they were “censored” by the Biden administration, only to see the Supreme Court definitively reject those claims in Murthy v. Missouri.
Now that some of these same people are running health agencies under Trump, we’re getting to see what actual censorship looks like—and surprise, surprise, it’s coming from the very people who complained the loudest about being silenced.
The latest example comes courtesy of Dr. Vinay Prasad, now the FDA’s top vaccine regulator, who used copyright claims to shut down a YouTube channel run by Dr. Jonathan Howard, a neurologist and psychiatrist who has been documenting and critiquing the statements of what he calls our “current Medical Establishment.”
Howard’s channel served an important function: documenting the public statements of people who are now in positions of significant power over American health policy. As Howard explains in a detailed blog post on Science-Based Medicine:
A core goal of my work has been to preserve the words of our current Medical Establishment. While accurately remembering the past is valuable in its own right, we need to remember their prior pronouncements to judge their current credibility, even if they don’t want us to do that. A doctor who fluffed RFK Jr. or spread blatant disinformation about a deadly virus is unlikely to be trustworthy about anything.
To that end, I started a YouTube channel last year, which served as a repository of what our current Medical Establishment said. I had accumulated about 350 videos, almost all of which were short clips of famous doctors saying absurd things- that herd immunity had arrived in the spring of 2021 and that RFK Jr. was an honest broker about vaccines, for example. I appeared in just a handful of the videos, as a small face offering commentary in the corner, though I hadn’t made a new video all year. I never promoted the channel and made no money from it.
The channel was small—just 256 subscribers—but the videos were primarily clips of public statements, interviews, and social media posts that Howard used to support his critiques and articles.
Enter Prasad, who apparently couldn’t stand having his own words preserved for posterity. As The Guardian reported:
Jonathan Howard, a neurologist and psychiatrist in New York City, received an email from YouTube on Friday night, which stated that Vinay Prasad, who is the FDA’s top vaccine regulator, had demanded the removal of six videos of himself from Howard’s YouTube channel.
Howard’s entire channel has now been deleted by YouTube, which cited copyright infringement.
Here’s where the hypocrisy becomes unmistakable. This is the same Vinay Prasad who has spent years positioning himself as a victim of censorship—someone who built his brand on being a “free speech” advocate. Howard notes with some irony how he won’t do all the “I am being censored!” nonsense that Prasad and his now colleague as a government health official, Jay Bhattacharya, have spent years doing:
To be clear, the loss of my YouTube channel is a trivial thing, and I promise not to make it the center of my identify. I won’t make a Supreme Court case out of it or record lengthy videos about it- Prasad’s Lecture is Cancelled from ACCP Conference b/c Online Haters. I won’t sit down for self-pitying interviews with Bari Weiss, the Wall Street Journal, and Reason Magazine. I’ve been censored before, and I am not dramatic about such things. After all, my YouTube channel had 256 subscribers and its videos were typically seen by dozens of people, DOZENS! Its loss is a speck of dust compared to what RFK Jr. is destroying, and on one level, it both really funny and pathetic that Dr. Prasad would care so much about it.
Howard also notes that Prasad seems to have zero problem with anti-vaxxers using the very same videos of Prasad, showing how this is clearly selective enforcement (i.e., a government official engaging in viewpoint discrimination to shut down Howard’s attempt to call out Prasad’s nonsense):
From his podcast Gmail account, Dr. Prasad filed a formal complaint that video clips he had posted to Twitter had been uploaded to YouTube. YouTube agreed and killed my channel. Dr. Prasad was not bothered by someone sharing his videos on principle. For years, he’s been happy to let anti-vaxx disinformation accounts share countless clips of his vulgar revenge fantasies. Dr. Prasad only objected when I, someone who exposed his disinformation, sought to preserve and share these exact same videos.
This is textbook censorial behavior disguised as copyright enforcement. Copyright has long been the tool of choice for those looking to silence critics, and this appears to be a classic example. Howard’s use of these clips—for commentary, criticism, and documentation—would almost certainly qualify as fair use under copyright law. As Howard points out, he’s now reuploading videos with his own commentary included, which makes the fair use case even stronger.
But the copyright angle is really beside the point here. The real story is the breathtaking hypocrisy of someone who built his brand on being a “free speech” advocate suddenly using legal threats to silence a critic the moment he gets into government.
This hypocrisy extends throughout the Trump health apparatus. As I detailed last year, Jay Bhattacharya—now head of the NIH—spent years falsely claiming he was “censored” by social media platforms, when the reality was that his content was simply being fact-checked or receiving less algorithmic promotion. Meanwhile, RFK Jr., now Secretary of Health and Human Services, has filed numerous (failed) lawsuits making similarly bogus censorship claims.
It’s almost as if all these “health” professionals who spent years falsely claiming they were censored because they received some (well deserved) pushback and criticism for their highly questionable arguments, were really just itching to censor their critics all along.
Howard captures this perfectly:
It’s no secret that the administration in which Dr. Prasad proudly serves- Vinay was not anti-Trump– is censoring scientists and dissident voices. The termination of my channel is a small part of that process, and so it’s OK to be clear about what seems to have happened here.
The pattern is clear: these individuals spent the Biden administration crying about imaginary censorship while building their brands as free speech martyrs. Now that they’re in power, they’re showing us what actual censorship looks like—using copyright claims, legal threats, and government pressure to silence critics and preserve their own narratives.
It’s worth noting that Howard isn’t giving up. As he explains:
Unlike Dr. Prasad, I have no problem with anyone sharing my work. Feel free! Much of it merely collects and curates what Dr. Prasad said the past 5 years, including in the erased videos. None of this is lost, and I think it’s very important that we don’t forget it. And even though my YouTube channel (RIP, 2024-2025) was assassinated by my own government, there are many ways to remind the world of what he said. I’ve already created another YouTube channel, and this time every video will come with my commentary. It will be much better than the one that got erased, and hopefully it will be more widely viewed.
This is exactly the right response. When would-be censors try to use copyright as a cudgel, the answer isn’t to be silenced—it’s to make the fair use case even stronger by adding more commentary and criticism.
The broader lesson here is one we’ve seen repeatedly: the loudest voices falsely complaining about “censorship” are often the first to engage in actual censorship when given the opportunity. These COVID contrarians built their entire brands on being silenced martyrs, but the moment they gained real power, they immediately started trying to silence their critics.
Howard puts it best:
Americans do not need our government’s permission to remember their words and inform the world about what our public officials said. I refuse to let Dr. Prasad be silenced or censored. He should extend me the same courtesy. He is a powerful government official. I am just a private citizen seeking to hold my government accountable.
That’s the real issue here: a government official using legal threats to try to silence a private citizen who is documenting his public statements. It’s exactly the kind of behavior that Prasad and his colleagues claimed to oppose when it was happening to them (even though it wasn’t actually happening to them).
The fact that this is being done under the guise of copyright law doesn’t make it any less censorial—it just makes it more cowardly. At least when governments engage in direct censorship, they’re being honest about what they’re doing. Using copyright claims to silence critics is censorship with a fig leaf, and it’s particularly galling when it comes from people who built their reputations complaining about being censored.
The hypocrisy here is undeniable. These are the same people who spent years claiming that any fact-checking or algorithmic demotion was “censorship,” now using actual legal threats to silence critics. They demanded that social media platforms give them unlimited reach and immunity from criticism, while simultaneously working to eliminate criticism of their own statements.
Howard’s documentation project is more important than ever, precisely because people like Prasad are now in positions of significant power over American health policy. The public has a right to know what these officials said before they gained power, and they have a right to hold them accountable for those statements.
The fact that Prasad is trying to memory-hole his own public statements should tell us everything we need to know about how confident he is in defending them. If your public statements can’t withstand scrutiny, perhaps the problem isn’t with the people scrutinizing them.
Filed Under: censorship, copyright, dmca, fda, jay bhattacharya, jonathan howard, transparency, vinay prasad
Companies: youtube
Judge Says Trump FCC Being ‘Vague And Uninformative’ In Response To DOGE-Related Lawsuit
from the dysfunction-junction dept
Back in April, the Trump FCC was sued by Nina Burleigh and Frequency Forward, alleging that Elon Musk’s influence in government was “creating unmanageable conflicts of interest within the FCC.” There’s not much debate there; Musk is getting slathered in new taxpayer subsidies via a Republican rewrite of the infrastructure bill, and all inquiries into his companies’ shady dealings have largely been killed.
The lawsuit also points out that Trump’s FCC and agency boss Brendan Carr have “acted favorably on several Starlink initiatives,” and recently opened a dodgy “investigation” into Dish Network, which the suit alleges is flimsy cover to force Dish to sell its valuable spectrum holdings to Elon Musk and Starlink.
The lawsuit also claims that the Trump FCC violated the Freedom of Information Act (FOIA) by wrongfully withholding records on DOGE’s activities at the FCC.
The Judge managing the lawsuit apparently doesn’t think much of Trump and Brendan Carr’s FCC responses to the inquiry so far. The plaintiffs in the case filed a motion for preliminary injunction last week (hat tip, Ars Technica) and received a quick ruling from US District Judge Amy Berman Jackson in the District of Columbia.
While Jackson said the plaintiffs failed to meet the legal requirements for an injunction, she did take time to point out that Trump’s FCC is stonewalling on providing documentation:
“On July 2, 2025, the Court ordered that defendant “must file a dispositive motion or, in the alternative, a report setting forth the schedule for the completion of its production of documents to plaintiff, on or before July 23, 2025.” However, defendant’s July 23, 2025 status report provided no timeline, and it was vague and uninformative. Further, the anticipated “initial production” defendant referred to [in] that filing, amounted to only 35 pages.”
Of course Elon Musk isn’t the only one benefiting From Brendan Carr’s tenure at the FCC. The agency is taking a hatchet to what’s left of media and telecom company oversight and consumer protection, which is a huge boon to shitty predatory broadband monopolies, giant media conglomerates, prison telecom monopolies, robocallers, and other bad actors.
Carr has tried to dress up this cronyism and regulatory capture as an act of efficiency, calling this his “Delete, Delete, Delete” initiative (which Ars notes is being conducted with even less transparency and public input than ever before). But there’s nothing efficient about corruption and a broken government helmed by weird zealots, keen to leverage what’s left of government power to trample free speech and bully companies into fecklessness.
DOGE has also provided flimsy “innovation efficiency” cover in the press for the brutal dismantling of both corporate oversight and the social safety net, in addition to just generally being a wasteful, costly mess all by itself. What’s left of federal consumer protection and corporate oversight really is being summarily executed by radical assholes, and the impact will be massive and generational. Yet, with scattered exception, most U.S. journalists, politicians, and policy folks don’t seem particularly interested.
Filed Under: brendan carr, consumers, corporate oversight, doge, elon musk, fcc, lawsuit, regulators, telecom
Companies: frequency forward, spacex
U.S. Appeals Court: USPTO Must Reconsider If Fucks Are For Everyone
from the for-fucks-sake dept
I don’t find myself writing about how some combination of the USPTO and the court system gets things right on trademark matters very often, but I certainly did a couple of years ago in a series of posts about a fashion brand owned by Erik Brunetti. The brand was initially denied a trademark for its name, which is FUCT, over vulgarity concerns. That decision was overturned on appeal, with the courts rightly recognizing that the First Amendment trumps the puritanical sensibilities of the USPTO. It was a really good ruling overall.
Well, Brunetti wasn’t done. Given his victory in trademarking the term “FUCT,” he then attempted to get a trademark in a series of fashion categories for the work “FUCK.” After all, the courts had made it clear that civility and morality checks need not apply. However, the USPTO this time got it right and denied the trademark application as being too generic to serve as a source identifier. The USPTO’s decision included such delightfully vulgar analysis as:
The record before us establishes that the word FUCK expresses well-recognized familiar sentiments and the relevant consumers are accustomed to seeing it in widespread use, by many different sources, on the kind of goods identified in the FUCK Applications. Consequently, we find that it does not create the commercial impression of a source indicator, and does not function as a trademark to distinguish Applicant’s goods and services in commerce and indicate their source.
I completely fucking agree, USPTO people. Good for you, this was another good decision.
Unfortunately, Brunetti appealed the decision, as he had with “FUCT”, and the appeals court has decided that the USPTO had failed to provide a clear reason for its denial.
Aug 26 (Reuters) – A U.S. appeals court on Tuesday ordered the U.S. Patent and Trademark Office, opens new tab to reconsider its decision to deny an application for a trademark covering the obscenity word “fuck.” In a split 2-1 decision, the U.S. Court of Appeals for the Federal Circuit said the USPTO failed to provide clear reasoning for denying the application by streetwear designer Erik Brunetti.
The Federal Circuit said the dispute differed from Brunetti’s Supreme Court case because the USPTO’s decision was not based on the fact that the mark was obscene. But the court agreed with Brunetti that the USPTO had registered other all-purpose words as trademarks, such as “Love,” and said the agency “failed to provide sufficient precision in its rationale for why some commonplace words can serve as a mark, but others, such as FUCK, cannot.”
And, to be fair, Brunetti has something of a point here. The USPTO is not exactly a beacon of consistency when it comes to what it allows to be a registered trademark and what it does not. That’s a huge part of the problem.
But my answer to Brunetti would simply be that all he’s done is point out that there are other simple, commonplace words that should probably have their registrations rescinded. This isn’t an argument that “FUCK” should be a trademark, in other words. It’s an argument that the USPTO often times sucks at their jobs.
Because the real rebuttal from the USPTO ought need only be a showing of all the other registered trademarks that incorporate the word “fuck” into something more identifying or unique, never mind all of the other examples of clothing and fashion brands out there that use the word in one way or another. It’s ubiquitous and I’m more than a bit surprised that the appeals court needs the USPTO to be more detailed in its denial. After all, it was right to say that the word doesn’t serve as an identifier as a source of a good, because it’s used far to widely to do so.
So here’s to hoping that the USPTO cares enough to stand its ground.
Filed Under: cafc, erik brunetti, fuck, fuct, trademark, uspto
Choosing ‘Daddy’ Over Democracy
from the tribalism-is-a-hell-of-a-drug dept
One of the things upon which I spend a lot of time pondering: watching right-leaning, but otherwise intelligent people in my life look at Donald Trump’s systematic destruction of constitutional government and see just mere incompetence, but generally normal politics. These aren’t people force-fed reactionary propaganda in media bubbles. These are sophisticated observers who, if the same fact patterns were playing out in Hungary or Venezuela, would immediately recognize authoritarian consolidation for what it is.
The only conclusion that makes sense is that some humans simply value tribal loyalty more than truth. Once that choice is made, everything else becomes motivated reasoning in service of protecting the tribe from its designated enemies.
The American right has achieved remarkable clarity about who their enemy is: “the left.” Whether it’s woke ideology, trans rights, Marxism, or whatever dark fantasy currently haunts their imagination, they’ve identified the existential threat that must be stopped at all costs. Once that becomes the organizing principle of your political worldview, everything else—competence, integrity, constitutional governance, basic honesty—becomes secondary to the primary mission of keeping “them” from power.
Donald Trump is obviously a fraud. A transparent con man who has never successfully negotiated anything beneficial for America in either of his administrations. There is no “art of the deal”—just decades of failed businesses, stiffed contractors, and elaborate schemes to avoid accountability for obvious crimes. His Republican enablers know this perfectly well.
But they also know who daddy is. And daddy is the guy their tribe gathers around, however repulsive and vulgar he might be.
Some of these people even recognize that Trump wants to be king. They can see the authoritarian impulses, the constitutional contempt, the obvious desire for unchecked power. But they reassure themselves that institutions will contain him, that checks and balances will hold, that somehow the system will prevent the worst outcomes. What they can’t admit is that institutions don’t constrain themselves—they’re constrained by people willing to defend them. And when daddy is systematically capturing those institutions, placing loyalists in every position of authority, redefining institutional purpose from public service to personal protection—the institutions become daddy’s tools rather than democracy’s safeguards.
Watch Republicans in Congress when Trump prostrates America before Vladimir Putin. You can see the embarrassment in their faces, feel their moral misapprehension at watching American soldiers kneel on tarmac to prepare red carpets for war criminals. They know what’s happening is wrong—deeply, obviously wrong.
But they also understand their role in the daddy dynamic: you give gentle suggestions while you watch him humiliate the country you claim to love. You offer private counsel while publicly defending his “negotiating style.” You express quiet concerns in closed-door meetings while voting to block any oversight that might constrain his collaboration with foreign adversaries.
The same psychology was on display after the Bolton raid. Republicans who spent years screaming about “weaponized law enforcement” fell silent when it actually happened—when the FBI raided a former National Security Advisor for the crime of writing a book critical of the president. They know it’s constitutional vandalism. They just can’t bring themselves to oppose daddy, even when he’s systematically destroying the institutions they claim will contain him.
The “daddy” dynamic captures both the infantilization involved—looking for a strong father figure to protect them from scary changes in the world—and the way authoritarian movements depend on personal loyalty rather than institutional consistency. Daddy doesn’t need to deliver results; he just needs to make the right enemies suffer. And if he happens to embarrass America on the world stage, collaborate with adversaries, or betray fundamental values—well, that’s just daddy being daddy.
There’s a stark contrast here with how truth-seekers operate. Liberals, genuine conservatives, and independents committed to democratic governance don’t look for daddy figures—they look for competent public servants accountable to constitutional constraints. They criticize their own leaders when those leaders fail or overreach. They value institutional integrity over personal loyalty. When Joe Biden’s classified documents were discovered, Democrats didn’t rally around him with excuses—they supported proper investigation. When Democratic governors gerrymanander, progressive activists organize against them. Truth-seekers understand that no individual is more important than the system of accountability itself.
But once you’ve chosen daddy over democracy, normal political persuasion becomes futile. You’re trying to have a rational policy debate with people who have fundamentally abandoned the framework where policies matter. They’re engaged in tribal warfare where competence matters less than loyalty, where truth matters less than victory, where national dignity matters less than keeping “them” from power.
The tragedy is watching intelligent people voluntarily surrender their analytical capacity to tribal belonging. They’ve chosen the comfort of knowing who their enemies are over the difficulty of thinking clearly about complex realities. They’ve chosen daddy over country, tribal identity over constitutional duty, personal loyalty over national interest.
This isn’t stupidity. It’s the deliberate subordination of truth-seeking to threat perception. Once someone becomes convinced that political opponents represent existential danger, everything else becomes tactical calculation. The question isn’t whether Trump is competent or honest or patriotic—the question is whether he’s useful for destroying the people who threaten their vision of America.
In tribal warfare, daddy doesn’t need to be good. He just needs to be theirs. And as long as loyalty trumps reality, daddy wins—even if it means America loses.
Republicans love daddy.
Mike Brock is a former tech exec who was on the leadership team at Block. Originally published at his Notes From the Circus.
Filed Under: authoritarian, daddy figure, democracy, donald trump, maga, tribalism
