With all that RFK Jr. has done, and failed to do, as the Secretary of HHS, he should be terribly busy cleaning up mess after mess. The measles outbreak that is going to cause America to lose its elimination status is still ongoing and on pace to quadruple last year’s case total, so he could work on that. He could be busy finding a CDC Director, a position left vacant well beyond the federally mandated limit of 210 days. Or a Surgeon General. Or he could be working to undo the harms and effects of the misinformation that he and Trump have been pumping into the media ecosystem.

But it seems that, despite reporting that the White House wants to rein him in so he doesn’t get the GOP murdered in the midterms, Kennedy has instead decided its time to make history as the first sitting cabinet secretary to host his very own podcast.

The show, titled “The Secretary Kennedy Podcast,” will launch next week and feature Kennedy, a longtime anti-vaccine crusader who has reshaped the country’s health policy, in conversation with doctors, scientists and agency staff, U.S. Department of Health and Human Services officials told the AP ahead of the launch. In the teaser video, in a slick HHS-branded studio with ominous music playing in the background, Kennedy bills it as a new way to expose corruption and lies that have made Americans sick.

“We’re going to name the names of the forces that obstruct the paths to public health,” Kennedy says in the nearly 90-second clip.

We all know where this is going. Before entering into government, Kennedy hosted his own podcast previously. It covered such sane topics as:

1. Google and Mind Control
2. Vaccines During Pregnancy (featuring anti-vaxxer Lyn Redwood)
3. EMR, Cell Phones, & Cancer
4. IRS: Pro-Pharma Anti-Health
5. Censorship & Twitter Files with Matt Taibbi

So, you know, a conspiracy theory podcast, featuring all of Kennedy’s favorite topics. Anyone looking at this podcast as a source of information is clinically insane. This is just another megaphone through which to growl his anti-science, anti-medicine conspiratorial views. That he is making history in doing so when he has far better things he could be doing is simply the rotten cherry on top of this shit sundae.

Tyler Burger, HHS digital communications manager and the producer of the new podcast, said while Food and Drug Administration Commissioner Marty Makary has a podcast, officials believe Kennedy’s will be the first to be hosted by a sitting cabinet secretary.

“We’re kind of bringing podcasting into the government as an official form and arm of our messaging,” Burger said. He said the set for the show was pieced together largely with items the agency already had, and has the capacity for a total of four people to sit in conversation together.

While I appreciate Kennedy for giving me what will surely be much, much more about which to write, there is danger in this. You can be sure that Kennedy will not be inviting dissenting viewpoints onto his show. Anyone coming across it, with the imprimatur of a sitting Secretary as its host, may fall victim to thinking that what is being presented is official federal policy, the viewpoints of real doctors and scientists, or… you know… sane.

It won’t be any of that. I sincerely hope someone in the White House catches wind of this and puts a stop to it. Sadly, I doubt that is forthcoming.

The Trump administration has restricted the First Amendment right to record law enforcement by issuing an unprecedented nationwide flight restriction preventing private drone operators, including professional and citizen journalists, from flying drones within half a mile of any ICE or CBP vehicle.

In January, EFF and media organizations including The New York Times and The Washington Post responded to this blatant infringement of the First Amendment by demanding that the FAA lift this flight restriction. Over two months later, we’re still waiting for the FAA to respond to our letter.

The First Amendment guarantees the right to record law enforcement. As we have seen with the extrajudicial killings of George Floyd, Renée Good, and Alex Pretti, capturing law enforcement on camera can drive accountability and raise awareness of police misconduct.

A 21-Month Long “Temporary” Flight Restriction?

The FAA regularly issues temporary flight restrictions (TFRs) to prevent people from flying into designated airspace. TFRs are usually issued during natural disasters, or to protect major sporting events and government officials like the president, and in most cases last mere hours.

Not so with the restriction numbered FDC 6/4375, which started on January 16, 2026. This TFR lasts for 21 months—until October 29, 2027—and covers the entire nation. It prevents any person from flying any unmanned aircraft (i.e., a drone) within 3000 feet, measured horizontally, of any of the “facilities and mobile assets,” including “ground vehicle convoys and their associated escorts,” of the Departments of Defense, Energy, Justice, and Homeland Security. Violators can be subject to criminal and civil penalties, and risk having their drones seized or destroyed.

In practical terms, this TFR means that anyone flying their drone within a half mile of an ICE or CBP agent’s car (a DHS “mobile asset”) is liable to face criminal charges and have their drone shot down. The practical unfairness of this TFR is underscored by the fact that immigration agents often use unmarked rental cars, use cars without license plates, or switch the license plates of their cars to carry out their operations. Nor do they provide prior warning of those operations.

The TFR is an Unconstitutional Infringement of Free Speech

While the FAA asserts that the TFR is grounded in its lawful authority, the flight restriction not only violates multiple constitutional rights, but also the agency’s own regulations.

First Amendment violation. As we highlighted in the letter, nearly every federal appeals court has recognized the First Amendment right of Americans to record law enforcement officers performing their official duties. By subjecting drone operators to criminal and civil penalties, along with the potential destruction or seizure of their drone, the TFR punishes—without the required justifications—lawful recording of law enforcement officers, including immigration agents.  

Fifth Amendment violation. The Fifth Amendment guarantees the right to due process, which includes being given fair notice before being deprived of liberty or property by the government. Under the flight restriction, advanced notice isn’t even possible. As discussed above, drone operators can’t know whether they are within 3000 horizontal feet of unmarked DHS vehicles. Yet the TFR allows the government to capture or even shoot down a drone if it flies within the TFR radius, and to impose criminal and civil penalties on the operator.

Violations of FAA regulations. In issuing a TFR, the FAA’s own regulations require the agency to “specify[] the hazard or condition requiring” the restriction. Furthermore, the FAA must provide accredited news representatives with a point of contact to obtain permission to fly drones within the restricted area. The FAA has satisfied neither of these requirements in issuing its nationwide ban on drones getting near government vehicles.

EFF Demands Rescission of the TFR

We don’t believe it’s a coincidence that the TFR was put in place in January 2026, at the height of the Minneapolis anti-ICE protests, shortly after the killing of Renée Good and shortly before the shooting of Alex Pretti. After both of those tragedies, civilian recordings played a vital role in contradicting the government’s false account of the events.

By punishing civilians for recording federal law enforcement officers, the TFR helps to shield ICE and other immigration agents from scrutiny and accountability. It also discourages the exercise of a key First Amendment right. EFF has long advocated for the right to record the police, and exercising that right today is more important than ever.

Finally, while recording law enforcement is protected by the First Amendment, be aware that officers may retaliate against you for exercising this right. Please refer to our guidance on safely recording law enforcement activities.

Republished from the EFF’s Deeplinks blog.

The government’s reliance on grand juries to bring charges against activists, protesters, and the president’s personal enemies has been misplaced. Increasingly, grand juries are refusing to give the government what it wants: rubber-stamped indictments that will allow it to move forward with vindictive prosecutions.

But there’s still something grand juries offer that regular courts can’t: secrecy. If the government doesn’t want the public to know how it’s building cases, it’s best bet to drag everyone involved in front of a grand jury whose secrecy can’t easily be pierced without a concerted effort by involved parties and the assistance of sympathetic judges.

There’s a good reason the government doesn’t want the public to know what it’s doing in this case detailed by Ryan Devereaux for The Intercept. There’s some shady stuff happening here, along with some incredibly incompetent stuff.

According to a subpoena obtained by The Intercept, Reddit has until April 14 to provide a wide range of personal data on one of its users, whom U.S. Immigration and Customs Enforcement agents have been trying unsuccessfully to identify for more than a month.

That’s the brief summation. The details, however, make this whole thing look sketch as fuck. Reddit received the first demand for this user’s data on March 4. Two days later, it informed the user that the government was seeking this information. The Reddit user secured legal representation from the Civil Liberties Defense Center.

The user’s lawyers looked through the targeted account and couldn’t find anything that might be considered criminal.

Commenting on a Minnesota Star Tribune article, another Reddit user posted that Ross might be welcomed as a hero in Florida or Texas. John Doe responded by sharing that Ross had lived in Chaska, Minnesota; grew up in Indiana; and served in the Indiana National Guard — biographical details that were circulating widely at the time. “Hopefully he moves up to Stillwater State Penitentiary,” they wrote.

In another post, a Reddit user asked what they should write on an anti-ICE protest sign. John Doe suggested the lyrics to a song: “Urine speaks louder than words.” In a third instance, Doe wrote, “TSA sucks and we all know it.” According to the Reddit user’s attorneys, these were the most aggressive posts they could find.

While one would hardly expect legal reps to dish out inculpatory information in response to journalist’s questions, the lack of anything possibly law-breaking speaks for itself. The whole thing looks like a fishing expedition by the DOJ on behalf of ICE — something that’s confirmed by the administrative subpoena ICE issued in hopes of unmasking this user.

In its summons, ICE indicated the basis for its request was a provision of the Smoot-Hawley Tariff Act of 1930. John Doe informed the court that they had nothing to do with the kind of activities at issue in the near-century-old statute, which governs boat show sales, wild animal imports, forfeited wines and spirits, and cross-border trade in other goods.

In case you’ve forgotten, the C in ICE stands for “Customs.” That means whoever “wrote” this subpoena didn’t even care enough to ensure the correct boilerplate was copy-pasted into the subpoena. ICE wants to punish this person for their speech, which it seemingly believes adds up to a federal crime. In support of its demand for user info, it inserted boilerplate pertaining to customs enforcement.

Then again, this might have been intentional laziness. As The Intercept notes, the Trump administration tried to use the same customs statutes to unmask his critics back in 2017. Those efforts were criticized by the still-operable Office of the Inspector General.

ICE withdrew the tariff-related subpoena. Then the DOJ sent another one nearly a month later, this time targeting Reddit itself:

This time, instead of requesting information on an individual user, the government ordered Reddit itself to appear before a grand jury — not in California, but in Washington.

The request came not from an ICE field agent but rather from a Special Assistant U.S. Attorney in D.C., where Reddit has received the highest number of federal law enforcement information requests. The records sought spanned a period roughly three times longer than what ICE had originally requested.

That’s the backdoor the DOJ is trying to use. It can’t get the stuff it thinks will generate an indictment via the usual Smoot-Hawley whatever the fuck. And since it’s not interested in seeking an actual warrant (which would require judicial review) to compel Reddit to produce user data and information, it’s hoping it can accomplish the same thing in a secret court far away from anything resembling an adversarial process, much less the watchful eyes of a federal judge.

That’s the Department of Justice deliberately routing around a crucial part of the justice system in hopes of securing ill-gotten “wins” against critics of Trump, his policies, and his administration in general. With any luck, this attempt won’t work because it’s been exposed. But rest assured, this administration will never stop trying to bypass the systems of checks and balances that might occasionally prevent it from doing whatever it wants.

We’ve been warning for a while now that Section 230 is dying by a thousand legal workarounds rather than a straightforward repeal, and the hits just keep coming. A few weeks ago, I wrote about how two jury verdicts against Meta in New Mexico and California should scare anyone who cares about the open internet, even if the instinct to cheer them on is understandable given how terrible Meta has been. Those verdicts adopted a legal theory that re-frames editorial decisions about how to present user-generated content as “product design” choices outside the scope of Section 230, functionally making the law irrelevant.

Now, the Massachusetts Supreme Judicial Court has gone even further. In a unanimous ruling in Commonwealth v. Meta Platforms, Inc., the state’s highest court has denied Meta’s motion to dismiss the state attorney general’s lawsuit, holding that Section 230 does not bar claims that Meta designed Instagram to be addictive to children, lied to the public about the platform’s safety, failed to properly age-gate underage users, and created a public nuisance. The court’s reasoning provides a clean, easily replicable template for any plaintiff anywhere to plead around Section 230, and it does so by mangling the statute’s text and ignoring key words while drawing a distinction between “content” and “content presentation” that collapses under even the slightest scrutiny.

Once again, since this always needs to be said in all of the articles about these rulings: Meta is a terrible company. It has spent years making terrible decisions. I don’t trust the company to make the right decisions even if only correct decisions were presented to it. Mark Zuckerberg deserves zero benefit of the doubt. But as I said last time, the legal theories being used to go after Meta here will not stay confined to Meta. They will be used against every website, every search engine, every forum, every email provider, and every small platform that makes any decision about how to present user-generated content. That’s what makes this ruling so dangerous.

Professor Eric Goldman, who has been tracking these cases more closely than perhaps anyone, put it bluntly:

This is not a good opinion for Section 230 on several dimensions.

First, as a state supreme court decision, it’s the final word for the Massachusetts state court system (unless the US Supreme Court intervenes). It provides a major beachhead for other courts to follow, both within Massachusetts and beyond.

Second, this court didn’t rely on the Lemmon “design defect” workaround. Instead, it said that the claim doesn’t relate to third-party content unless it’s based on the substance of the third-party content. This provides plaintiffs with another avenue to work around Section 230 in addition to the Lemmon/design defect workaround that other courts are accepting (even if they shouldn’t).

Third, as I explained, I don’t see any distinction between third-party content and the editorial choices about the manner of presenting that third-party content. By embracing that false dichotomy, the court invites plaintiffs to reframe their complaints to focus on content presentation instead of substance.

That last point is the most important part of the whole ruling. The court has now handed plaintiffs’ lawyers a magic formula: just say you’re suing about the presentation of content rather than the content itself, and Section 230 vanishes. Goldman lays out the playbook:

Here’s how a plaintiff’s argument could look: “I’m not suing about the third-party content, I’m suing about the design choices that elevated that third-party content over others.” These are literally the same thing in my mind. If this argument works, Section 230 is dead because plaintiffs will always embrace that workaround.

Looking at the court’s actual reasoning, things get messy fast.

Massachusetts’ complaint alleged that Meta “engaged in unfair business practices by designing the Instagram platform to induce compulsive use by children, engaged in deceptive business practices by deliberately misleading the public about the safety of the platform, and created a public nuisance by engaging in these unfair and deceptive practices.” Meta moved to dismiss on Section 230 grounds. The lower court denied the motion. Meta appealed.

The Massachusetts Supreme Judicial Court actually (correctly!) recognized that Section 230 provides immunity from being sued in the first place, not just a defense against paying up at the end. This matters procedurally, because immunity from suit means you get to appeal the denial of your motion to dismiss before trial — you don’t have to go through the whole expensive litigation process first and then appeal at the end. The court analyzed the language of Section 230(e)(3), and reached the right conclusion:

The plain meaning of “no cause of action may be brought” is that a suit may not be initiated in the first instance and the defendant cannot be forced to litigate the claim.

Great. The court got the procedural question right. Section 230 provides immunity from suit. Meta gets its interlocutory appeal. The whole point of Section 230, after all, has always been to get bad cases tossed early, before the ruinous expense of discovery and trial.

And then the court proceeded to deny the immunity anyway, meaning Meta now has to litigate the entire case on the merits despite supposedly having immunity from suit. The court gave Section 230 its proper procedural dignity with one hand and gutted it substantively with the other. Meta got to appeal early — and lost anyway. Now it faces full litigation on claims that Section 230 was designed to kill at the threshold. The outcome is a complete mess: the court has effectively turned “immunity from suit” into “the right to lose an appeal slightly faster.”

The heart of the court’s logic rests on a distinction between claims that impose liability based on the content of third-party information and claims that merely concern how that content is presented. To get there, the court engaged in a lengthy analysis of the phrase “treated as the publisher . . . of any information” in Section 230(c)(1), concluding that this phrase requires both a “dissemination element” and a “content element.” In other words, the court held that Section 230 only applies when a claim seeks to hold a platform liable for the substance of user-generated content it published — and that claims about design features like infinite scroll, autoplay, algorithmic recommendations, and notification systems target the how of publishing rather than the what, and therefore fall outside Section 230’s protection.

This ignores a long list of precedents — and the explicit statements of Section 230’s authors — establishing that the law was designed to protect platforms from being sued over any editorial decision-making, including how content is presented. To put this in perspective, it’s like saying that someone could sue, say, the evening news based on where they placed a story (top of the show or bottom?) and that the impact of how it was presented is somehow unrelated to the content itself. That makes no sense. But it’s the way this court has interpreted 230.

The court found that with respect to the unfair business practices claim:

The challenged design features (e.g., infinite scroll, autoplay, IVR, and ephemeral content) concern how, whether, and for how long information is published, but the published information itself is not the source of the harm alleged. Instead, the claim alleges that the features themselves induce compulsive use independent of the content provided by third-party users.

Meta tried to point out the obvious problem with this: without user-generated content, these design features don’t do anything harmful. Nobody’s getting addicted to infinite scroll through a feed of nothing. The court waved this away:

But the fact that the features require some content to function is not controlling; instead…to satisfy the content element, we look to whether the claim seeks to hold Meta liable for harm stemming from third-party information that it published. Here, the unfair business practices claim does not; the Commonwealth alleges that the features themselves prolong users’ time on the platform, not that any information contained in third-party posts does so. In this sense, the claim is indifferent as to the content published.

“Indifferent as to the content published.” No matter how many times courts (or media or politicians) make this claim, it never gets any more accurate. As I noted in my earlier piece about the California and New Mexico verdicts: imagine Instagram, but every single post is a video of paint drying. Same infinite scroll. Same autoplay. Same algorithmic recommendations. Same notification systems. Is anyone addicted? Is anyone harmed? Is anyone suing? Of course not. Because infinite scroll does nothing without content that makes people want to keep scrolling. The features and the content are inseparable. Saying the claim is “indifferent as to the content published” is a legal fiction, and everyone involved knows it.

Goldman makes this point through a newspaper analogy that’s worth quoting at length:

I don’t see any distinction between third-party content and the editorial choices about the manner of presenting that third-party content. By embracing that false dichotomy, the court invites plaintiffs to reframe their complaints to focus on content presentation instead of substance. … As an analogy, consider a dead-trees newspaper’s decision to publish a story: it is equally part of the newspaper’s editorial prerogative and publication decisions to decide to publish the story at all and to decide if the story should appear on the A1 front page or some interior page; what size typeface to use for the story headline; whether the story runs all on the same page or continues on a later page; etc. As applied to Meta, the decision to vary the delivery timing of new third-party content items (as one example) is just as much of Meta’s publication decision-making process about publishing the third-party content as whether the item will be published at all.

The fallout here goes way beyond just Instagram. A search engine decides to rank certain results higher than others — that’s a “design choice” about content presentation, not about the content itself. A forum uses “newest first” sorting — design choice. An email provider’s spam filter decides what goes to your inbox — design choice. A blog allows comments and displays them in threaded format — design choice. Under this court’s reasoning, all of those are potentially outside Section 230’s protection, because they concern how content is presented rather than the content’s substance. Every editorial decision a website makes about the display, ordering, timing, or format of user-generated content is now potentially a “design” claim that evades Section 230.

Especially given that the whole premise of these lawsuits is that these “design choices” are engineered to “addict” users — a claim that none of the cases have actually established as a clinical matter. They show signs of companies trying to make users of their products like and use them more. Which is what basically every company does. It’s sort of the nature of business. Should a state AG be able to sue a restaurant because its food was too delicious and people ate too much of it? TV shows end on cliffhangers. Books have page-turning chapter endings. Are those addictive design features subject to state AG enforcement?

There’s another serious problem with the court’s statutory analysis that Goldman flagged, and it’s frankly embarrassing for any court to make, let alone a state supreme court. Section 230(c)(1) says: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The court spent pages analyzing what “publisher” means, diving into common-law publisher liability, legislative history, and the Cubby/Stratton Oakmont story line. But as Goldman observed:

Worse, the court extensively analyzes the word “publisher” but doesn’t say a word about the companion “speaker” term that appears two words later in the statute. This is another indicator of results-oriented decision-making. No matter what the court says “publisher” means, if the court disregards one of the other 26 words that has direct relevance to its meaning, the court is failing its #1 job of reading the damn statute. This omission is extremely embarrassing for the court, and it thoroughly undermines the credibility of the court’s recitation of precedent.

Whatever narrow common-law meaning you might ascribe to “publisher,” the word “speaker” is right there, broadening the scope. The court just… pretended it wasn’t. When a court conducting what it claims is a careful “plain meaning” analysis of a 26-word clause of the statute at the center of the case manages to ignore one of the operative words, that’s more than a tell. As Goldman noted:

When courts decide to review a 1996 statute from scratch in 2026, after over a thousand Section 230 cases have been decided, that’s usually an indicator that they are engaging in results-oriented decision-making, they don’t like the precedent, and they need another way to reach a different result.

Then there are the deception claims, which the court dispatched with even less effort. Massachusetts alleged that Meta lied to the public about Instagram being safe and not addictive. The court held that because these were Meta’s own statements, Section 230 obviously didn’t apply — the statute only protects against liability for third-party content, and Meta’s PR statements are first-party speech.

That much is technically defensible as a Section 230 matter. But the underlying theory has its own problems that the court didn’t bother grappling with. What does it mean for a company to “deceive” the public by saying its product is “safe”? Almost nothing is 100% safe. Cars aren’t perfectly safe. Food isn’t perfectly safe. Playgrounds aren’t perfectly safe. As we’ve written about before, the social media moral panic has systematically confused risks with harms. Something can carry risks without every user being harmed, and a company saying it takes safety seriously is not a guarantee that no bad outcome will ever occur to any user. If “we prioritize safety” plus “something bad happened to a user” equals fraud, then every tech company, car manufacturer, pharmaceutical firm, and food producer in the country is perpetually liable for “deception.”

Goldman noted that there are “obvious puffery/opinion defenses that could apply here” but weren’t addressed in the Section 230 analysis. That’s true. But the more fundamental problem is that the court’s framing of the deception claims, combined with its evisceration of Section 230’s applicability to the design claims, means all four counts now proceed to full litigation. The “public nuisance” claim got even less analysis — a single footnote saying that because the other claims survive Section 230, so does the nuisance claim that’s based on them. Goldman rightfully calls out how weak this is:

I’ve previously complained before about courts’ complete undertheorizing of how and why public nuisance claims can apply to social media, and this court doesn’t do any better. In a footnote, here is the court’s entire discussion about Section 230’s application to the public nuisance claim: “Because we conclude that § 230(c)(1) does not bar counts I to III, we also conclude that it does not bar the Commonwealth’s public nuisance claim, which is predicated on the same allegedly unfair and deceptive practices in counts I to III.”

Put it all together and the picture for Section 230 is bleak.

A few weeks ago, juries in New Mexico and California found Meta liable using the “design defect” workaround — arguing that features like infinite scroll and algorithmic recommendations are product design choices, not editorial decisions about third-party content. Those verdicts relied on the framework from Lemmon v. Snap, the somewhat problematic Ninth Circuit case that carved out a design-defect exception to Section 230, and which opened the floodgates to lawsuits like the ones we’re discussing here.

Somewhat oddly, the Massachusetts court explicitly declined to follow the Lemmon framework. It developed its own, different workaround: Section 230 only applies when a claim is based on the substance of third-party content, and claims about content presentation fall outside its scope. This is, as Goldman put it, “another avenue to work around Section 230 in addition to the Lemmon/design defect workaround that other courts are accepting.”

So we now have at least two distinct legal theories for pleading around Section 230, both blessed by courts, both available to any plaintiffs’ lawyer nationwide. And both accomplish the same thing: they take the editorial decisions that platforms make about user-generated content — the decisions that are the very heart of what Section 230 was designed to protect — and reclassify them as something else. “Design choices.” “Content presentation.” “Product features.” Call them whatever you want. The result is that Section 230 protects nothing that matters.

Goldman’s metaphor for all of this is apt:

Even if this opinion doesn’t outright eliminate Section 230 in Massachusetts, it’s a sign of how 230 workarounds keep proliferating, contributing to the swiss cheese-ification of Section 230. When the bubbles in the swiss cheese become too large, the cheese wedge lacks structural integrity and falls apart. That is where 230 is heading, if it’s not already there.

And this brings us to the thing that matters most, the thing that gets overlooked in every one of these cases: the procedural advantage of Section 230 was always the point. The whole reason Section 230 exists is to get bad cases thrown out early, before platforms have to spend millions in discovery and trial. Even if the First Amendment eventually protects many of the same editorial decisions, it does so at the end of expensive, protracted litigation. Section 230 was designed to get you out at the motion to dismiss stage.

And it wasn’t just the procedural advantage that mattered — it was the certainty. Platforms could make editorial decisions about how to present content knowing they were protected. That freedom meant editorial reasoning could lead, rather than legal risk-avoidance. A lawyer consulted before every design decision will never tell you to make the best call for users — only the least legally exposed one.

All of that has been thrown out the window. The certainty. The quick resolution. The ability for editorial reasoning to lead, rather than lawyerly concerns. These court rulings chip away at Section 230 bit by bit, and with it the ability for anyone to freely host content online without fear of getting sued.

The Massachusetts court’s ruling is the textbook example of how that benefit has been destroyed. The court correctly held that Section 230 provides immunity from suit — not just immunity from liability. It correctly allowed Meta to take an interlocutory appeal on exactly that basis. And then it ruled that the immunity doesn’t actually apply to any of the claims in the case. Meta exercised its right to an early appeal and got told it has to go litigate the whole thing anyway.

So what was the point? Meta got to go to the state supreme court, argue about immunity from suit, and then get sent right back to trial court to face all the same claims. Every future defendant in Massachusetts who raises a Section 230 defense will look at this ruling and know that the “immunity from suit” is a mirage. You get the appeal. You just don’t get the immunity, so long as the lawyers on the other side say the magic words. Which all of them will.

This is exactly the dynamic I warned about in my piece about the California and New Mexico verdicts. Even if these legal theories eventually get sorted out at the Supreme Court level, even if the First Amendment eventually provides some backstop, the practical reality is that Section 230’s core function — early dismissal of meritless cases — has been gutted. Every plaintiff’s lawyer now knows how to draft a complaint that survives a 230 motion to dismiss: just say “design” instead of “content.” Say “presentation” instead of “publication.” And you’re in. Discovery. Trial. Seven-figure legal bills. The whole show.

And smaller companies know this. Meaning they will either avoid hosting content altogether… or we’ll have the most powerful heckler’s veto in existence. Anyone who wants any third party content removed just needs to threaten a lawsuit using the magic words. And the mere threat of legal bills will mean the “smart” move will be to remove the content. All sorts of forums will suffer. Think about how Republican AGs will use this to argue that any site hosting LGBTQ+ content is causing harm. Think about the plaintiffs’ lawyers who will use any claimed “design” flaw as leverage for a shakedown settlement. If you thought that copyright trolling was bad, just wait until we see an entire collection of plaintiffs lawyers suing (or just threatening to sue while really seeking a settlement) any website they can claim made a “design choice” that leads to harm.

That’s the ballgame for small platforms. For independent forums. For startups trying to compete with the giants. Meta can absorb this. A new social media competitor cannot. Congress doesn’t need to repeal Section 230. The courts are doing it for them, one cleverly worded ruling at a time.

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More of the same for the Trump administration — one that seems incapable of achieving its goals without breaking the law or disregarding the Constitution.

Hundreds of judges handling thousands of cases have already told the administration it can’t do the things it thinks it can when it comes to satisfying its anti-migrant bloodlust/Stephen Miller’s 3,000-arrests-per-day quota (they’re the same thing!). And, outside of the Fifth Circuit, where the majority seems to believe Trump should get whatever he wants, this steady stream of judicial rejections continues.

Yet another class-action suit alleging the wholesale violation of Constitutional rights has resulted in a ruling siding with the Constitution. This case is one of several being handled by the ACLU. This particular one originates in Nevada, which at least keeps it out of the hands of the Fifth Circuit. (Unfortunately, the administration knows who’s buttering its bread, which is why detainees are often shipped immediately to detention centers in Texas and Louisiana.)

The administration has only a single argument to present in its defense of its unconstitutional mandatory detention activities. It involves selectively quoting two related (yet distinct!) immigration statutes and pretending that 1+1=whatever the fuck we say it does.

One of the most concise explanations of the administration’s deliberate misreading of these statutes was delivered by Judge Dale Ho of the Southern District of New York last year. The government wants to pretend people who encounter immigration agents while crossing the border are indistinct from migrants who have already been in this country for weeks, months, or years. They’re not the same thing, but the administration insists they are, despite having only convinced the Fifth Circuit that the laws don’t actually say the things they say.

Given that detention under § 1225(b)(2) is essentially mandatory and that detention under § 1226(a) is largely discretionary, it follows that whichever statute Mr. Lopez Benitez is subject to is potentially dispositive here. That is, if Mr. Lopez Benitez was detained as a noncitizen “seeking admission” to the country under § 1225(b)(2) (as Respondents argue), his detention would be mandatory. If, instead, he was detained as a noncitizen “already in the country” under § 1226(a), then his detention is discretionary and he would be, at a minimum, entitled to an appeal before an immigration judge.

To be sure, the line between when a person is “seeking admission” as opposed to being “already in the country” is not necessarily obvious. For instance, someone who has just crossed the border may technically be “in” the country but is still treated as “an alien seeking initial entry.” Thuraissigiam, 591 U.S. at 114, 139 (holding that a noncitizen detained “within 25 yards of the border” is treated as if stopped at the border). But there is no dispute that the provisions at issue here are mutually exclusive—a noncitizen cannot be subject to both mandatory detention under 1225 and discretionary detention under § 1226, a point that Respondents conceded.

These are not the same thing. Section 1226 deals with people already in the country, who are given Constitutional protections. Section 1225 deals with people crossing the border who are met immediately by immigration agents, who don’t have access to the same due process rights.

As the court points out in this case, the language of the statutes makes it clear Section 1225 is “temporally and geographically limited to the border” by other language contained in the Immigration and Nationality Act (INA). The government, however, wants to pretend it’s indistinct from Section 1226, which deals with people who are already in the country and have been there for a significant amount of time.

The only way the government can present its defense of indefinite detention of migrants without bond hearings is to twist the wording of both statutes. The Nevada court [PDF] isn’t going to let that happen. It calls out Trump’s DOJ for its cut-and-paste antics.

The government contends that the plain language of § 1225(b)(2) requires DHS to detain all noncitizens like Plaintiffs, who are present in the U.S. without admission or parole and subject to removal proceedings, regardless of how long they have been in the country or how far from the border they are apprehended. But this Court finds that the government reads § 1225(b)(2 (A) as a fragment of statutory text in isolation.

Context matters. The government knows this, which is why its arguments remove the parts of the law it wants to use from the context that indicates its actions are illegal.

The Court finds the government’s reading of the statutory text inapposite for severalreasons. First, the government distorts the statutory text, including terms of art specially defined by Congress. Second, the government isolates and abstracts the phrases it favors in § 1225(b)(2)(A) from their context within § 1225 and the statutory scheme, while rendering language it finds inconvenient within § 1225(b)(2)(A) both contrary to ordinary meaning and needless surplusage. Finally, the government’s interpretation unnecessarily renders provisions of § 1226(c) superfluous in all but the rarest cases, unjustifiably construes Congress’ addition of § 1226(c)(1)(E) through the 2025 Laken Riley Act to be utterly ineffectual, and creates unnecessary tension between the relevant provisions, §§ 1225 and 1226.

This is what it looks like when you know you can’t win on the merits. This is the government pretending the law says what it wants it to say and hoping to slip it past a judge and under the skirts of Lady Liberty.

Courts aren’t as dumb as the Trump administration hopes. Let’s look at the statutes, the court says, but the whole thing rather than just the things the government thinks might be usable.

The Court cannot accept such a fraught interpretation when a reading devoid of such conflict, which gives each statutory phrase and section independent meaning and force, is far more plausible.

What follows is a few dozen pages making everything summarized above granular and specific. And if Trump doesn’t like it, he can always ask the legislators he treats as extraneous to rewrite the law in his favor. Take it up with Congress if you don’t like the way the law is actually written, the court says without actually saying it:

[E]ven with regards to removal proceedings as opposed to custody determinations, Congress explicitly reflected its understanding of longstanding due process precedent that recognizes the more substantial due process rights of noncitizens already present and residing in the U.S. compared to the minimal rights of noncitizens seeking to enter.

Even a Congress loaded with MAGA bitchboys isn’t going to be able to erase Constitutional protections for migrants no one really seemed to have a problem with until white Christian nationalists took over the West Wing (on two non-consecutive occasions). The current Congress is merely an afterthought in service to Federalist Society theories of unitary executive power — something that surely won’t come back to haunt them when America decides it’s time to hand the reins to the opposition party.

And that’s not all of the bad news for Trump and his enablers. The due process thing is already a known issue and one that has resulted in hundreds of losses for the administration’s lawyers. This court also points out the Fourth Amendment implications of its actions. While this doesn’t necessarily create the sort of precedent that would shut down the DHS’s extremely creative interpretation of the Constitution, it will provide plenty of citation pull-quotes for litigants challenging ICE’s warrantless arrests and home entries.

[N]o administrative warrant requirements exist in the text of § 1225(b)(2)(A) or its implementing regulations. The government’s interpretation of that provision as geographically unlimited is thus in tension with the application of the Fourth Amendment within the country’s interior, which “requires that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force.”

I’m sure this quotation of Justice Kavanaugh’s concurrence in Trump v. Illinois is deliberate. The guy behind “Kavanaugh stops” (TL;DR: looking foreign is probable cause when it comes to immigration enforcement) is being directly quoted to reject the government’s reliance on administrative warrants to bypass the Constitution. [Chef’s kiss gesture.]

Great stuff. But, as always, tempered by the realization that this administration will not stop doing illegal things just because a court has directly told them these actions are illegal. The old equation — asking forgiveness > asking permission — doesn’t really apply. This administration will do neither. It will simply DO until it becomes impossible to continue.

Don’t let that discourage you, though. Even if the co-equal branches don’t seem to be living up to the “checks and balances” hype, we’re a nation of millions spread across a considerable number of square miles. They can’t take us all at once.

VPNs (when integrity is maintained and the owners aren’t sleazy scammers) have long been the mortal enemy of shitty, surveillance-happy governments.

And when shitty, surveillance-happy governments try to block or degrade the use of VPNs, bad things can happen. As Russia found out recently when a ham-fisted effort to block VPN users from accessing Telegram resulted in a massive outage for online banking across the entire country.

Last February Russia tried to delete WhatsApp and Telegram from its version of the internet in the hopes of driving Russians to Max, the country’s approved “everything app.” Max has no encryption or privacy protections, making it easier for Vladimir Putin’s government to engage in mass surveillance of the public’s online activities.

VPN use makes that harder. An estimated 50 million Russians still use VPNs to access Telegram, according to CEO Pavel Durov (happily posting away over at Elon Musk’s right wing propaganda website):

So last May, Russia’s Digital Minister Maksut Shadayev announced an effort to “reduce VPN ​usage.” But Durov says those efforts have been a broad failure, recently resulting in a massive outage (Bloomberg paywalled, Gizmodo alternative) for all online banking apps in Russia:

“But amid its effort to weaken VPNs on Friday, according to Bloomberg, accounts from “The Bell and other Russian media” banking apps were disrupted. This disruption might have been, “caused by an overload in the filtering systems run by Russia’s communications watchdog, according to the reports,” Bloomberg explained, “with experts warning that major restrictions risk undermining network stability.”

Something similar happened in 2018. Whoops. Apparently the Russian government was so eager to ban VPNs, they erroneously targeted IP addresses tied to banking infrastructure owned by Sberbank, VTB, and T-Bank, demonstrating the fragile nature of centralized financial infrastructure. The outage briefly made mobile payment apps unusable, making cash the only viable transaction option for part of a day.

Given that shitty autocratic governments (like our own) are incapable of learning anything useful from experience, you can expect the problem to repeat itself.

This week, we’ve got a double-winning comment from Shannon Vanshoon that took first place on the insightful side and second place on the funny side. It’s a response to a particular passage in our post about the scammy AI company that fooled the New York Times:

Or in other words…

“So to my friends and family members wondering why I haven’t built my own billion-dollar AI company: apparently the missing ingredient wasn’t AI — it was being willing to run a deepfake-powered spam operation selling potentially inert pills to desperate people.“

Or, to quote my partner, ‘I’d be rich if I was just a little more evil.’

In second place on the insightful side, it’s a comment from Thad about the depths of dysfunction in American government and beyond:

I forget who said it, but I once saw it framed as “If you want to know whether this is a Trump problem or a GOP problem, consider that the two most pro-Trump justices on the Supreme Court were appointed by the Bushes.”

That comment was a reply to Heart of Dawn‘s comment raising the subject, so we’ll start with that comment for our first editor’s choice on the insightful side:

What gets me is not the pedophile war monger’s unhinged rant, crashing of the global economy, or taking a sledgehammer to America’s status as an ally to the West and a global superpower- it’s that despite all this, he still has full support of Congress, the Supreme Court, and 30% of the US population.

The country has a rot to it’s very core that won’t be removed by ousting Trump alone.

Next, it’s an anonymous comment about the limits of the DMCA and the companies that go beyond them:

But, as bad as the law is, it doesn’t actually allow for takedowns of references to copyright infringement (unless perhaps judges invented such a requirement via case law). Google apparently chose to allow people to use notices that way, despite a lack of any legal basis. And other search engines kind of copied from them. Maybe the film companies applied pressure as advertisers.

By contrast, in the old days, I don’t think anyone ever had their phone number removed from the phone book, or disconnected altogether, based purely on unproven accusations of illegal activity (like maybe a video store that was a little shady regarding copyright law). I’m not sure that was even an option after a court found someone guilty or liable.

Over on the funny side, our first place winner is MrWilson with another comment about Medvi and the New York Times:

I’m half expecting an announcement that Elizabeth Holmes has endorsed MEDVI from her cell and is being given a seat on the board.

We’ve already had our second place funny winner above, so we’ll head straight on to the editor’s choice, starting with That One Guy and a comment passing on a famous book passage that suits Congress’s latest attempt to put the law behind a paywall:

‘Publicly acessible’ doesn’t mean ‘Publicly accessible in a usable format’

And the bill is sneaky about it: it includes a provision requiring that incorporated standards be made “publicly accessible online,” which the bill’s supporters point to as proof of their commitment to transparency.

” …You hadn’t exactly gone out of your way to call attention to them had you? I mean like actually telling anyone or anything.’

‘But the plans were on display…’

‘On display? I eventually had to go down to the cellar to find them.’

‘That’s the display department.’

‘With a torch.’

‘Ah, well the lights had probably gone.’

‘So had the stairs.’

‘But look you found the notice didn’t you?’

‘Yes,’ said Arthur, ‘yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying “Beware of The Leopard”.’ –Hitchhiker’s Guide To The Galaxy, Douglas Adams.

Finally, because someone had to say it, it’s an anonymous comment about the prosecutors who are still trying to convict a 62-year-old woman for wearing a 7-foot-tall inflatable penis costume to a protest:

Somehow isn’t the biggest dick of this story.

That’s all for this week, folks!

It’s time for the third in our series of spotlight posts looking at the winners of our eighth annual public domain game jam, Gaming Like It’s 1930! We’ve already covered the Best Adaptation and Best Deep Cut winners, and this week we’re looking at the winner of Best Visuals: As I Lay Flying by Geouug.

In a first for these game jams, Geouug is a double winner, having taken the prize in two different categories with two different games. As I Lay Flying is the more ambitious submission of the two: it’s a challenging physics-based game based on William Faulkner’s 1930 novel As I Lay Dying, which tells the story of the Bundren family’s effort to return their recently deceased aunt’s body to her hometown. In the book, it’s a journey of diverse trials and tribuilations; in the game, it’s a slapstick adventure about launching a wagon through the sky.

It’s a fun if slightly finnicky challenge that’s easy to understand but hard to master. There’s more than just the core physics gameplay too: progressing requires purchasing upgrades using the money you earn with each attempt, and the selection of these upgrades is crucial to finishing each stage.

The resource management layer turns As I Lay Flying into a complete game, and it was a strong competitor for Best Digital Game. But even more than that, the game stands out for its graphical ambition, completeness, and attention to detail. Everything is designed to fit into the style and setting, and no interface element is left plain and generic: they are rendered in wood and paint and cloth, with little touches like period-appropriate stamps to mark purchased upgrades. During the main gameplay there are parallax-scrolling backgrounds and physics-based animation of the wagon and its occupants, and the levels are bookended by dialogue and narration scenes illustrated with photos and original character portraits.

Though most of the graphics are composed of very simple pieces (stock grass textures and vector tree silhouettes abound), the whole is much greater than the sum of its parts. No corners are cut and nothing feels overlooked. For achieving such a comprehensive graphical style that ties together every element of the game, and with some fun gameplay to boot, it’s this year’s winner for Best Visuals.

Congratulations to Geouug for the win! You can play As I Lay Flying in your browser on Itch. We’ll be back next week with another winner spotlight, and don’t forget to check out the many great entries that didn’t quite make the cut. And stay tuned for next year, when we’ll be back for Gaming Like It’s 1931!