Last month FCC boss Brendan Carr illegally ignored remaining U.S. media consolidation laws to rubber stamp Nexstar’s $6.2 billion purchase of Tegna. It’s part of the generational Republican quest to steadily consolidate media, then replace whatever journalism remains with a soggy mish mash of lazy infotainment and right wing propaganda (see: Sinclair Broadcasting).

But there’s trouble in paradise: a judge issued a temporary restraining order blocking the merger from proceeding. For now.

“Defendants must immediately cease all ongoing actions relating to integration and consolidation of Nexstar and Tegna,” wrote Troy Nunley, the chief judge in US District Court for the Eastern District of California.

The savior in this case is curiously DirecTV, not-long-ago spun off from its own disastrous union with AT&T. DirecTV filed suit saying that the consolidation in local broadcast TV will erode what’s left of competition in the local broadcast TV sector, harming product quality, opinion diversity, and labor, while resulting in higher overall prices (for everyone) in exchange for even worse product.

From the restraining order:

“Nexstar admits the merger will greatly increase its already huge “scale” and its “leverage,” i.e., the ability to force its TV distribution customers, including Plaintiff, to pay even
higher fees for local news, live sports, and other content they distribute to their subscribers.
Plaintiff alleges Nexstar will also shut down local newsrooms in dozens of markets, reducing the amount, variety, and quality of local broadcast news that Americans rely on for trusted
information about their communities. Plaintiff asserts those harms from reduced
competition are precisely what antitrust laws are designed to prevent.”

Nexstar was so certain the merger was a done deal, it had begun changing the physical signs and logos on many of the acquired stations it had begun integrating, something it’s since been forced to reverse. The company has also tried to insist it can’t comply with some of the Judge’s demands because some aspects of the early integration “can’t be undone.”

The deal would combine Nexstar’s stable of more than local 200 stations with Tegna’s 65 outlets in major markets nationwide, blowing past restrictions that no company can control more than 39 percent of households (the new combined company reaches 54.5 percent). In addition to the NexStar lawsuit, the companies are also being sued by a coalition of eight attorneys general and consumer groups.

Since Rupert Murdoch convinced Ronald Reagan to eliminate laws preventing one mogul from owning a paper and TV station in one market, Republican policies (and corporations) have pushed relentlessly to pursue the goal of a monolithic, highly consolidated media in exclusive service to the extraction class and corporate power. The result has been anything but subtle.

Media scholars have been warning about the perils of this for decades, but only recently, under the ham-fisted efforts of Trumpism, have people truly begun seeing the full outline of the threat. The media sector (like most U.S. sectors) desperately needs an antitrust renaissance; and if the federal government is no longer willing to engage in adult supervision, other parties will have to fill the void.

A little over a year ago, we wrote about a fairly silly lawsuit filed against Netflix (and Warner Bros.) by Pepperdine University in California for trademark infringement. At issue is the Netflix show Running Point, which is a fictionalized story of a female executive thrust into ownership of a professional basketball team, inspired by the Lakers’ Jeannie Buss, who is also an Executive Producer on the show. The show’s fictional team, which is supposed to be a reference to the NBA’s Los Angeles Lakers, is called “The Waves”. Pepperdine’s sports teams are also called “The Waves”, which the school claimed made all of this trademark infringement.

They were wrong about that, as we said in the previous post. Creative works are given wide latitude in trademark law, specifically in that the Rogers test typically applies. Even in the aftermath of the Supreme Court’s terrible ruling on parody in the case of the Bad Spaniels and Jack Daniels lawsuit, this was always a situation in which the Rogers test would definitely apply. Specifically, SCOTUS’ decision that Rogers doesn’t apply when the offending trademark is used as a source identifier, because we’re talking about a fictional team used in a wider work of fiction, meaning the use isn’t an identifier or any source.

Netflix and Warner petitioned for dismissal for those very reasons and the now the court has agreed and the suit has been dismissed.

U.S. District Judge Cynthia Valenzuela said ‌on Tuesday , opens new tab that the fictional Los Angeles Waves basketball team in “Running Point” did not violate the Malibu, California, school’s rights because the show did not use the “Waves” name and ​logo as trademarks.

The ruling goes into much more detail, of course. It very specifically examines whether the Rogers test applies, deciding it does based on the usage. For example:

Here, Plaintiff fails to allege that the Waves mark was used by Defendants to exploit the success of Plaintiff’s sports teams or to create an association between the Running Point series and Pepperdine’s teams. Rather, at most, the FAC shows that the Waves mark is “immediately recognized” to identify the Running Point series, and that its use is synonymous with the series. These allegations, which Plaintiff concludes show that the Waves mark is used to “identify the show” are still not sufficient to show that the Waves mark was used as a designation of source for the series. Plaintiff’s repeated use of the words “identify” and “source-identification” do not actually show how the Waves mark was used to identify the source of the series. Rather, here, Defendants clearly claim to be the source of the series.

Finally, the Court is not persuaded by Plaintiff’s arguments regarding the marketing of the show or Defendants’ behavior in similar uses. Although Plaintiff alleges that Defendants’ used the Waves mark in marketing the Running Point series, this does not alter the Court’s above analysis that the Waves mark is not used to identify the source of the series. And the fact that Defendants have obtained trademarks in fictional businesses central to their shows in the past again does not show that Defendants have used the Waves mark to identify the source of Running Point here.

The ruling goes on to note that if Rogers applies, the Lanham Act does not. With source identifying out of the equation, the only remaining question is if the use in this case is artistically relevant. As the fictional team the main character owns, the name of that team is obviously artistically relevant.

Pepperdine has been given leave to amend its complaint into something that is actually legally sound, but I’m struggling to understand what that would even be. In lieu of an amended complaint, it seems that some creative works are still protected some of the time from nonsense trademark infringement claims, even in a post Bad Spaniels world.

Ctrl-Alt-Speech is a weekly podcast about the latest news in online speech, from Mike Masnick and Everything in Moderation‘s Ben Whitelaw.

Subscribe now on Apple Podcasts, Overcast, Spotify, Pocket Casts, YouTube, or your podcast app of choice — or go straight to the RSS feed.

In this week’s roundup of the latest news in online speech, content moderation and internet regulation, Ben is joined by Fadza Madzingira, a digital policy expert with a decade of experience at Meta, Salesforce, Ofcom and currently Twitch, where she leads the policy, outreach and education teams. Together, they discuss:

• Exclusive: Meta has discussed ending funding to the Oversight Board (Platformer)
• Spotlight: Five Years of the Oversight Board, from Experiment to Essential Institution (Ctrl-Alt-Speech)
• What Teens Are Doing With Those Role-Playing Chatbots (The New York Times)
• Early Lessons from Australia’s Teen Social Media Ban for the Rest of the World (Tech Policy Press)
• Stuck in the Middleware with Youth with Vaishnavi J (Ctrl-Alt-Speech)
• Greece to ban social media for under-15s from 2027, calls on EU action (Reuters)
• The Family Tech Cycle: Navigating Screens, Devices, and Social Media (Joan Ganz Cooney Center)

We’re still yet to find a Ctrl-Alt-Speech 2026 Bingo Card winner — could this week be your lucky day? Play along.

Copyright law is supposed to encourage creativity. Too often, it’s used to extract payouts from others.

Higbee & Associates, a law firm known for sending copyright demand letters to website owners, targeted May First Movement Technology, accusing it of infringing a photograph owned by Agence France-Presse (AFP). The claim was baseless. May First didn’t post the photo. It didn’t even own the website where the photo appeared.

May First is a nonprofit membership organization that provides web hosting and technical infrastructure to social justice groups around the world. The allegedly infringing image was posted years ago by one of May First’s members, a human rights group based in Mexico. When May First learned about the copyright complaint, it ensured that the group removed the image.

That should have been the end of it. Instead, the firm demanded payment.

So EFF stepped in as May First’s counsel and explained why AFP and Higbee had no valid claim. After receiving our response, Higbee backed down.

This outcome is a reminder that targets of copyright demands often have strong defenses—especially when someone else posted the material.

Hosting Content Isn’t the Same as Publishing It

Copyright law treats those who create or control content differently from those who simply provide the tools or infrastructure for others to communicate.

In this case, May First provided hosting services but didn’t post the photo. Courts have long recognized that service providers aren’t direct infringers when they merely store material at the direction of users. In those cases, service providers lack “volitional conduct”—the intentional act of copying or distributing the work.

Copyright law also recognizes that intermediaries can’t realistically police everything users upload. That’s why legal protections like the Digital Millennium Copyright Act safe harbors exist. Even outside those safe harbors, courts still shield service providers from liability when they promptly respond to notices.

May First did exactly what the law expects: it notified its member, and the image came down.

A Claim That Should Have Been Withdrawn Much Sooner

The troubling part of this story isn’t just that a demand was sent. It’s that Higbee and AFP continued to demand money and threaten litigation after May First explained that it was merely a hosting provider and had the image removed.

In other words, the claim was built on shaky legal ground from the start. Once May First explained its role, Higbee should have withdrawn its demand. Individuals and small nonprofits shouldn’t need lawyers just to stop aggressive copyright shakedowns.

Statutory Damages Fuel Copyright Abuse

This isn’t an isolated case—it’s a predictable result of copyright law’s statutory damages regime.

Statutory damages can reach $150,000 per work, regardless of actual harm. That enormous leverage incentivizes firms like Higbee to send mass demand letters seeking quick settlements. Even meritless claims can generate revenue when recipients are too afraid, confused, or resource-constrained to fight back.

This hits community organizations, independent publishers, and small service providers that don’t have in-house legal teams especially hard. Faced with the threat of ruinous statutory damages, many just pay what is demanded.

That’s not how copyright law should work.

Know Your Rights

If you receive a copyright demand based on material someone else posted, don’t assume you’re liable.

You may have defenses based on:

• Your role as a hosting or service provider
• Lack of volitional conduct
• Prompt removal of the material after notice
• The statute of limitations
• The copyright owner’s failure to timely register the work
• The absence of actual damages

Every situation is different, but the key point is this: a demand letter is not the same as a valid legal claim.

Standing Up to Copyright Trolls

May First stood its ground, and Higbee abandoned its demand after we explained the law.

But the bigger problem remains. Copyright’s statutory damages framework enables aggressive enforcement tactics that targets the wrong parties, and chills lawful online activity.

Until lawmakers fix these structural incentives, organizations and individuals will keep facing pressure to pay up—even when they’ve done nothing wrong.

If you get one of these demand letters, remember: you may have more rights than it suggests.

• EFF Letter to Higbee and Associates, March 4, 2026

Republished from EFF’s Deeplinks blog.

We’ve talked for years about how the DMCA’s notice-and-takedown system is ripe for abuse. The legal structure of the law practically begs for such abuse: send a notice, content disappears, and the target has to fight through a slow counter-notice process to maybe get it back. The system rewards speed of takedowns over accuracy because the burden of getting it wrong really only works one way. Sites have incentive to take content down first and ask questions later to avoid facing expensive liability. Getting it wrong may frustrate those whose content has disappeared, but there’s basically no legal cost to the platform. But if they get something wrong and leave infringing content up, they could face a very expensive legal bill. Which means anyone with something to hide and no particular attachment to honesty has a ready-made censorship tool at their disposal.

And while Google is rare in that it is much more aggressive in rejecting DMCA notices than most other sites, that doesn’t mean that it’s perfect.

Last week, Press Gazette published an investigation into Clickout Media, a UK-based company that has been buying up respected online news outlets, gutting their newsrooms, replacing human journalists with AI-generated writers (complete with AI-generated profile photos), and stuffing the sites full of affiliate links to offshore gambling operations. The whole game is to exploit the acquired sites’ reputations and search rankings — what’s known as “parasite SEO” — to drive gambling traffic through what look like legitimate publications. It’s a really excellent piece of reporting about a practice that is gutting digital news brands. Just a quick snippet, though it’s worth reading the whole thing:

Speaking anonymously, one former Clickout Media employee said: “I was moved from site to site. Writing guidelines and strategies changed every other week with very little explanation. At first, I didn’t write casino content, but then I wrote articles on bets and odds. Then AI articles started appearing.”

The owners of one site bought by UK-based Clickout Media said they were approached by anonymous buyers in the first instance.

The organisation has previously bought multiple sites in football and women’s sports (Football Blog, She Kicks, Sportslens, Sportslens UK, Sportscasting UK, Football Blog UK), as well as gambling sites, including Gambling Insider, for which it is suggested Clickout Media paid at least £12m.

However, within days of being published, the exposé disappeared from Google’s search results, removed after a DMCA copyright complaint.

A search of the exact Press Gazette headline: “The SEO parasites buying, exploiting and ultimately killing online newsbrands” does not bring the article up.

A note at the bottom of the Google search results page reveals for this query states: “In response to multiple complaints that we received under the US Digital Millennium Copyright Act, we have removed 2 results from this page. If you wish, you may read the DMCA complaints that caused the removals at LumenDatabase.org: Complaint, Complaint.”

A follow-up article by Search Engine Land covering the same topic was also removed (that’s the second “complaint” link above). So whoever was behind this was being thorough.

Now, Press Gazette doesn’t definitively identify who filed the takedown notice, and we should be careful here too. The complaint was filed anonymously from “US Hub” which gives us little info but which Press Gazette notes “suggests the complaint originated outside the US.” You can connect the dots yourself on who has a reason to make an investigative exposé of Clickout Media vanish from search results, but we can’t say for certain.

What we can say for certain is that the takedown notice itself is laughably, almost impressively, bogus. You can read it yourself over at the Lumen Database. The complaint claims Press Gazette’s entirely original investigation infringes on an unrelated article published by The Verge. That Verge article? It’s actually about Google cracking down on sketchy SEO practices, the likes of which Clickout Media seems to engage in. Which is, if nothing else, a spectacularly on-the-nose URL to attach to a fraudulent takedown of an article about sketchy SEO practices.

The language of the notice is quite something:

The infringing news website has blatantly and willfully violated copyright law by copying our entire content word for word, including all images, which are solely owned by our company. This includes the complete replication of our original written material, as published on our official website, along with the proprietary visuals accompanying it. Despite multiple good-faith efforts to resolve this matter amicably, the infringing party (hereinafter referred to as “Infringer”) continues to unlawfully publish and distribute our copyrighted content without permission. This is a direct and flagrant breach of our rights and a clear violation of Google’s copyright policies. We hereby demand the immediate removal of this infringing material from Google search results to protect our intellectual property.

None of that is true. Not one word. The Press Gazette article is original reporting. It has nothing to do with the Verge piece cited as the “original” work. There were no “multiple good-faith efforts to resolve this matter amicably,” because there was no infringement to resolve. The whole thing reads like someone fed a prompt into a chatbot asking it to write an angry-sounding but legally meaningless DMCA notice, and then pointed it at an article they wanted to disappear.

As the Press Gazette report on the bogus takedown notes, SEO experts found the whole thing bizarre, in part because Google is actually much better than most at sniffing out bullshit DMCA takedowns. But this one they missed.

Writing on X, SEO consultant Glenn Gabe said: “Surprised this was approved by Google…This is a BS DMCA takedown that doesn’t even make sense.”

Google processes an absolutely massive volume of takedown requests and rejects a good chunk of them. But this is the Impossibility Theorem in action: at that kind of scale, even a system that works well most of the time will let nonsense through sometimes. One bad notice that should have been caught in a ten-second review slips past, and suddenly a major piece of investigative journalism is invisible to anyone searching for it.

The good news is that, as of March 31, the Press Gazette article was reinstated in Google’s search results. The system worked, eventually. But that ‘eventually’ is doing a lot of heavy lifting. The article was invisible during what was probably the peak window of public interest in the story. Legal challenges to DMCA takedowns can take weeks or months to resolve, and the people who file these bogus notices know that. The copyright-enabled censorship just has to last long enough to blunt the impact.

For what it’s worth, the Press Gazette isn’t the only outlet digging into Clickout Media’s practices. Aftermath recently published its own extensive investigation based on eight months of reporting and interviews with more than two dozen current and former employees. That piece documents AI-generated author profiles, fake credentials (one supposed writer claimed an MA from Oxford in a program the university confirmed has never existed), writers being told never to publicly acknowledge any connection to Clickout Media, and a systematic strategy of acquiring beloved gaming publications only to fill them with crypto casino links.

Clickout Media is getting more and more negative attention, and Streisanding the Press Gazette story by having it removed from search will probably just attract more investigative reporters to the subject.

The company already has a pretty sketchy pattern: buy a respected publication, exploit its reputation, squeeze out whatever search ranking value you can, and discard the husk. And when someone publishes an article documenting what you’re doing, apparently get someone to file a bullshit copyright claim to make that article disappear too. It’s sketchy SEO all the way down.

This is why those of us who spend our time in the weeds of internet law won’t shut up about how legal liability systems are structured. The DMCA’s notice-and-takedown framework already gives bad actors a weapon to suppress speech. You don’t need a legitimate copyright claim. You don’t even need a coherent one. You just need to file the paperwork and wait for an automated system to do its thing.

And every time someone proposes weakening Section 230, or creating new obligations for platforms to proactively police third-party content, or imposing liability for hosting material that someone claims is harmful — they are, whether they realize it or not, proposing to hand bad actors this same kind of weapon in a dozen new calibers. The DMCA is the version of this we already have, and we can see plainly how it gets abused. We should be fixing the current system, and punishing the widespread abuses, rather than spreading that same broken incentive structure to every other area of online speech.

Bad actors will always exploit whatever legal lever is available to suppress content they don’t like. The question for policymakers is whether you’re going to keep handing them more levers. These kinds of bogus DMCA takedowns should be a warning for all those demanding reforms “weakening” Section 230. Because if you think bogus DMCA takedowns are bad now, just wait until they’re not just about copyright.

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Forgive me for this digression. I know it’s usually left to Mike Masnick to lift us up from our collective doldrums when things seem even more hopeless than they did last year. His New Year’s posts are never wrong. There are always silver linings, even if the filigree is more difficult to detect with each passing year.

This isn’t about Mike or silver linings or the as of yet unfulfilled promise of the New Year. This is a post written by a die hard defeatist and cynic who generally views each passing moment with increasing levels of defeatism.

But I’m wrong. Mike is actually right, even if my spirits often pretend they’re anchored to the ground like so many pre-oh-the-humanity German-built dirigibles.

I will tell you why I’m wrong. And it’s embarrassing. I have plenty to say about lots of stuff but I rarely convert my words into action. Recently, however, I did. And it has made all the difference.

At the request of my oldest kid, we attended the recent “No Kings” rally in Sioux Falls. I was clad in my finest Da Share Zone anti-ICE gear:

He was wearing my protest alternate, a Black Sabbath-inspired bit of rhetoric sure to piss off white Christian nationalists:

Suitably suited, we headed to the protest with a friend of mine and his wife.

Long story short, it was life-affirming. It was exactly what anyone who feels they are losing hope needs. I feel I’m pretty good with word stuff, but I think Will Bunch absolutely nailed it in his post-No Kings column for the Philadelphia Inquirer. Quoting Marlon Brando’s mantra in The Wild One (“What are you rebelling against? Whaddya got?”), Bunch moves on to quote real people engaged in protests against something both nebulous and evil… and finding solace in being around people just like them.

“You feel less isolated when you see everybody here, and then they feel less isolated,” Nancy Harris, a 62-year-old retired mental-health crisis counselor from Prospect Park, told me over the steady car honks from supportive motorists. “And I think it just motivates people in general…just putting good vibes out into the universe.”

There’s more. Here’s a 75-year-old protester who not only knows what’s at stake, but knows why you should never give up:

“I’ve been going up against the establishment my whole life,” said [John] Coia, speaking for a generation that grew up exercising its all-American right of free speech and, now in old age, is determined to keep using it while they still can. I asked him what was the last straw with Trump that convinced him to join “No Kings.”

“There is no last straw,” he said over the car honks. “It just keeps going. There’s a new straw every day.”

Both of these things can be true.

You can find hope in being with people who share your beliefs. You can also feel the fight is never-ending because the current administration just won’t stop being abjectly evil.

But the first thing is what matters: the government may never stop being evil, no matter who’s currently sitting behind the Resolute Desk. And people who want the government to serve the people and be less evil will always exist. The ebb and flow of these constants may shift the prevailing narrative, but it can’t undermine the actual truth — something Mike highlighted in a recent post about the horrors perpetrated by the administration in Minneapolis, Minnesota.

Here’s the quote from the Atlantic’s Adam Serwer that Mike highlighted in a long, must-read post that pointed out everything that’s right about America, even when everything seems to be going wrong:

The secret fear of the morally depraved is that virtue is actually common, and that they’re the ones who are alone.

This is where we come together. Until recently, I believed that “coming together” was just a meeting of the minds. But that’s just preaching to the converted, which doesn’t really do much, even if my “converted” are objectively better people than the MAGA “converted.”

What really matters is that people are resisting in increasingly large numbers. We often consider the word “community” to be a cliche because that’s how the government uses it (for example, “Intelligence Community”). We view it with the same (healthy!) suspicion as we would statements delivered by company officials claiming they treat employees like “family.”

It never means anything until you’ve actually experienced (firsthand) a good one. “Family” isn’t a compliment if yours sucks. The same can be said for any “community.”

Unlike families, you can choose your community. You don’t have to align yourselves with empty mouths spewing even emptier platitudes. You just need to go out and see for yourself. Sure, I’m my own anecdata in this post. But trust me, if things feel hopeless, all you really need is the company of people who do this day in and day out, despite the table being stacked against them.

I’m sure many (if not nearly all) of you have already had this experience. My greatest regret is that I put it off for so long. No one who truly believes in the cause will care one way or another about your day-to-day devotion. They’ll welcome you and stand beside you. Participation can be its own reward. And you’ll leave feeling more inspired to be the change we need in this world.

I just wish I had done this sooner. The world is ours. Let’s go take it.

Elon Musk is desperate to dominate the Low-Earth-Orbit (LEO) satellite broadband market. So is Jeff Bezos. And now the two billionaires are engaged in proxy fights at Trump’s FCC over who’ll get the honor.

Amazon’s LEO offering, Project Leo, is significantly behind Musk’s Starlink, and has been rushing to build out its LEO satellite constellation. To slow down their pace, Musk’s Starlink has started complaining to the FCC, insisting that Amazon violated orbital debris requirements by launching satellites into orbital altitudes that are too high, increasing the risks to other satellites and spacecraft.

Amazon has responded by basically saying Musk’s Starlink is lying to slow the arrival of a competitor to market:

“SpaceX only objected to the launch parameters after moving its Starlink satellites into nearby altitudes, Amazon said. Changing the altitude of a recent Leo launch would have delayed it by months, according to Amazon. Both Amazon and SpaceX have accused each other of using Federal Communications Commission proceedings to delay the other’s satellite launches at various times over the years.”

Hoping to avoid harming “free market innovation,” it took years for the FCC to finally recently implement some bare bones “space junk” LEO collision guidance, though enforcement has been sporadic, and I’m doubtful two billionaire Trump donors will ever see much in the way of accountability.

Both billionaires are hoping to leverage their ongoing support of Trump to their own benefit. Both have already had significant success on that front; Musk and Bezos convinced the Trump administration to redirect billions in infrastructure bill subsidies (earmarked for reliable, faster fiber) over to their LEO satellite broadband businesses for service they already planned to deploy.

I’m not inclined to believe either billionaire or their companies. Nor am I inclined to believe that FCC boss Brendan Carr has the integrity or competence to manage this dispute or to protect the public longer term. Starlink has recently seen several satellites blow up in orbit and has been very murky about the reasons for it. Tens of thousands more LEO satellites are slated for launch in the next few years.

The grand irony is that the mad dash toward LEO satellite broadband doesn’t really deliver on the promise of significantly better broadband. LEO satellite connectivity is great for folks who have no other option, but the technology comes with a long list of caveats.

The resulting networks will be too congested to truly scale or provide real competition for local telecom monopolies. The resulting services are also routinely too expensive for the folks who currently can’t afford access. Then there’s the problem of LEO satellite launches harming astronomy research and the ozone layer, issues I suspect won’t be a priority for Bezos, Musk, or Carr.

I’d expect to see much more orbital (and terrestrial consumer) chaos in the years to come, given absolutely none of these folks tend to think too deeply about the public interest.

After RFK Jr. found himself getting a rebuke from the court system over his ACIP reorganization from last year, in which the courts issued a preliminary injunction on the vaccine schedule changes ACIP recommended and staying further work from the panel, I’ve been waiting for the government to appeal the order. That appeal has not yet come to be, much to my surprise. That being said, I’m not even sure on what grounds the appeal would be made, since the court’s decision centered on a fairly plain reading of the Administrative Procedure Act, which reads as though it was written for this exact situation.

Essentially, the APA makes it unlawful for, among other things, a federal agency taking action, reporting, or making conclusions in its work that are not based on evidence, are otherwise arbitrary or unsupported by evidence or fact. It also makes it unlawful for leaders of a federal agency to take actions that exceed their authority or statutory rights.

And perhaps it’s that last bit that RFK Jr. is attempting to work around by amending ACIP’s charter in ways that are both subtle and not so subtle. Let’s start with the subtle one:

Most notably, the current charter includes a lengthy sentence on membership terms that begins by stating that ACIP members “shall be selected by the Secretary …” But the renewal notice today includes a nearly identical sentence, with the change that ACIP members “shall be selected and appointed by the HHS Secretary.” The edit appears to enshrine Kennedy’s ability to unilaterally install ACIP members.

I can’t imagine how that slight change is in any way useful… other than to get past the part of the APA that limits actions by agency leaders to their authorized actions. This is essentially enshrining in the charter that RFK Jr. can pick his ACIP team personally and not only select the members, but fully placing them in their roles at his sole authority. In other words, this is rewriting the charter to more specifically grant him the authority to do what he already did last year. Whether a rewritten charter that has no checks and balances from the other two branches of governments is enough to satisfy the courts is an open question, but I have very serious doubts that it would.

And I don’t think that the more stark changes to the charter would do anything to change the court’s stance on the type of evidence-free changes that the ACIP panel previously made.

The membership criteria are also dramatically different between the current charter and today’s renewal. Currently, ACIP members “shall be selected from authorities who are knowledgeable in the fields of immunization practices and public health, have expertise in the use of vaccines and other immunobiologic agents in clinical practice or preventive medicine, have expertise with clinical or laboratory vaccine research, or have expertise in assessment of vaccine efficacy and safety.” These specific core requirements of expertise in immunization practices and vaccine science were central to Murphy’s findings that Kennedy’s appointees were unfit to be on the committee.

The renewal notice did not mention these criteria, but instead discussed members having a “geographic balance” (representing different parts of the country) and a “balance of specialty areas.” It provided a lengthy list of specialty areas that span a much larger swath of medical and scientific fields and potentially beyond. They include: “biostatistics, toxicology, immunology, epidemiology, pediatrics, internal medicine, family medicine, nursing, consumer issues, state and local health department perspective, academic perspective, public health perspective, etc.”

It didn’t seem to me that the court was relying on ACIP’s specific charter when putting a stay on its work in this new iteration of the panel, however. Put another way, if the charter was instead written to state that ACIP “should be staffed by a group of bumblefucks that have all kinds of knowledge that have little to nothing to do with immunizations”, I don’t think the courts would state that all is now well with the appointments of said bumblefucks.

What this charter really does is turn ACIP, a panel that is specifically tasked with recommendations on immunization schedules, into something completely different. Medicine, like nearly all sciences, is a highly specialized endeavor. You don’t go to a surgeon to advise you on a cancer diagnosis. You don’t see a pediatrician to address your elderly mother’s varicose veins. And you don’t generally need input from consumer representatives and the like to chime in on immunization schedules.

Unless you’re being led around by the nose by your grifting partners in the anti-vaxxer crowd, that is.

Some of the changes in the renewal may stem from a push made by an anti-vaccine group close to Kennedy. The group is Informed Consent Action Network (ICAN), headed by Kennedy’s anti-vaccine ally Del Bigtree, who is working with Aaron Siri, a lawyer who worked on Kennedy’s failed presidential campaign and has filed numerous lawsuits seeking compensation for alleged vaccine injuries. Siri is also notable for petitioning the Food and Drug Administration to revoke the polio vaccine.

Last month, ICAN urged Kennedy to revise ACIP’s charter, and Siri’s law firm provided a draft, complete with track-changed text, of what they want for the new charter. The draft states that ACIP members should have expertise in any area “deemed relevant by the Secretary.” But, it specifically states that “At least two members shall have direct and substantial experience advocating for and/or treating those injured by vaccines.”

We’ll see what comes next, but I don’t expect Kennedy to take the loss and quit with his antics. He will try again and again, whether it’s appealing the court decision or attempting to fashion loopholes such as this.