"It may well be that no fire will be discovered under all the smoke, but there is enough smoke here ... to warrant the unusual step of ... find[ing] out how this unusual prosecution came about."
For a six-year period, the Government investigated SGO executives for their role in a money laundering and bribery scheme related to the May, 2016 Philippine elections. The investigation culminated in a six-count indictment ("First Indictment"), returned on August 8, 2024, which charged [executives of] SGO and Smartmatic … [with] conspiracy to violate the Foreign Corrupt Practices Act ("FCPA") (Count I); violations of the FCPA (Count II); conspiracy to commit money laundering (Count III); and international laundering of monetary instruments (Counts IV, V, and VI). The FCPA "prohibits officers of a domestic concern from making corrupt payments to a 'foreign official.'"
SGO was not charged. In fact, SGO had been cooperating with the Government since 2021, years before the First Indictment was returned. {Although the Parties may dispute the breadth and quality of SGO's efforts to cooperate, there is no question that SGO and the Government were engaged in discussions and the exchange of documents related to this matter.}
The original trial date was set for October 7, 2024 … [but was eventually reset for 2026]….
As the court notes, the Trump Administration was skeptical of FCPA prosecutions, deprioritized FCPA enforcement generally, and "elected to close FCPA investigations into multiple companies." But despite that, in October 2025, the government added SGO as a defendant in the case. SGO then moved to dismiss the superseding indictment, alleging vindictive and selective prosecution, and sought discovery in support of that motion, "premised on political events that have embroiled Smartmatic in the wake of the 2020 election":
Since that election, multiple high-profile individuals and organizations connected to then-Former President Donald Trump have alleged that Smartmatic, a subsidiary of SGO, interfered in the election…. President Trump has also reposted content blaming Smartmatic for interfering in United States and Venezuelan elections, calling Smartmatic "disgraceful" and expressing that those who "rigged" the 2020 election must pay. In response to the statements by President Trump's confederates, Smartmatic brought various defamation suits, which are largely ongoing. SGO contends that President Trump's personal animus against SGO and assertion of its rights against President Trump's confederates precipitated the filing of the Superseding Indictment….
The court lays out the demanding standard for defendants' attempts to get discovery related to allegations of vindictive or selective prosecution, but concludes that in this case the standard was met. A brief excerpt (for more, including citations to precedents to which the court analogizes this case, see the full opinion):
From U.S. v. Spitzer (N.D. Ga.), filed by Magistrate Judge John Larkins on Oct. 9, and just affirmed Wednesday by Judge Eleanor Ross:
The indictment alleges that on July 23, 2024, Mr. Spitzer posted the following message on the website for the American Federation of Teachers, a labor union, regarding its president ("Individual #1"):
[Individual #1] is an ignorant incompetent cunt that should be worried for her safety. Fact that she is still alive. Liberal nazi deserves the bullet to head. Resign before she ends like what happened to trump at his speech. They won't miss fat bitch.
The indictment alleges that the post violated 18 U.S.C. § 875(c), which makes it a federal crime to transmit in interstate commerce any communication containing a threat to injure another person.
Mr. Spitzer argues that assuming the allegations in the indictment were true, it fails to state an offense because the posting was not a "true threat," or even a threat at all, and thus is protected by the First Amendment. As he sees it, the posting was simply political speech about a public figure and did not advocate the use of force or violence against Individual #1.
{In an effort to contextualize the posting, Mr. Spitzer points to an internet article in which Mike Pompeo, the former U.S. Secretary of State, described Individual #1 as "the most dangerous person in the world"; examples of "conservative politicians and commentators" criticizing her approach to school closures during the pandemic; and examples of Individual #1's own political statements. But these are not facts that the Court can consider at this juncture because they fall outside the four corners of the indictment.}
Evidence exists that Givens harvested points from a number of examinees' scores and then added them to other examinees' scores within the same test administration. Thus, she unilaterally elevated some examinees' scores to the minimum passing score of 270 or greater. Brech also identified at least one instance in which score alterations may have reduced an examinee's score-who otherwise would have passed-to a failing score. And in at least one instance, the individual who should have received the top score on the Arkansas Bar Examination had their score reduced thereby naming another examinee as the recipient of the highest score on the exam. If these allegations are true, these actions constitute an unprecedented breach of public trust.
The full statement from the court:
An internal review by Robert Brech, Executive Director of the Supreme Court of Arkansas's Office of Professional Conduct and Programs, has uncovered extensive irregularities involving the Court's Office of Professional Programs and the administration of the Arkansas Bar Examination. The matter was turned over to state and federal authorities.
As of today, the Prosecuting Attorney's Office for the Sixth Judicial District filed formal criminal charges against Nancie Givens for 65 counts of tampering with a public record under Arkansas Code Annotated section 5-54-121 in connection with the alleged altering of numerous Arkansas Bar Examination scores and the deletion of files purportedly intended to conceal that misconduct. The charges followed a criminal investigation initiated in April 2026 by the Arkansas State Police and the Federal Bureau of Investigation. As always, all defendants are presumed innocent until proven guilty in a court of law.
In Ellis v. McNeese, written by Kansas District Court Judge W. Lee Fowler (decided April 22 but just posted on Westlaw), plaintiff's lawyer prevailed in getting his client reinstated as a nursing student who was punished by Flint Hills Technical College for a religiously motivated vaccine refusal. But when it came to getting attorney fees (which are allowed by the Kansas Preservation of Religious Freedom Act), the lawyer fared worse. The court concluded, for various reasons, that the lawyer would normally have been entitled to $100K in fees rather than the $300K he claimed, but then it went on to reduce the fees even further:
On October 20, 2025, Plaintiff's counsel filed a document entitled Opposition to Defendants Motion to Alter Judgment. Within that pleading the Plaintiff's counsel falsely cited two cases, State v. Baker, 290 Kan. 842, 235 P.3d 424 (2010) and Gannon v. State, 298 Kan. 110 310 P.3d 1196 (2014) for propositions of legal authority that are inconsistent with the case cited. In addition, there were no fewer than six false citations to non-existent Kansas case law. When confronted by these misrepresentations and facing a Motion for Sanctions, Plaintiff's counsel did not deny the allegations or explain how he came up with the false citations, he simply responded that the legal propositions contained in his pleadings were accurate and that his "citation irregularities were technical and clerical…".
Citations to non-existent cases can never be considered technical or clerical errors. They are not formatting or citation errors. They are unprofessional and sanctionable. This Court suspects that Plaintiff's counsel used a generative artificial intelligence program as an aid in drafting his pleading, but no such admission was forthcoming from counsel. Counsel's response to the claim for sanctions is simply the proposition of "no harm, no foul". In addition, this is not the only time Plaintiff's counsel has submitted false citations to a district court. See Anderson v. Aldrich, Douglas County District Court Case No. DG-2025-CV-429, Memorandum Opinion dated March 13, 2026.
I have long advocated using May 1 for this purpose. But November 7 is a worthy alternative candidate, which I am happy to adopt if it can attract a broad consensus.
Since 2007, I have advocated designating May 1 as an international Victims of Communism Day. The May 1 date was not my original idea. But I have probably devoted more time and effort to it than any other commentator. In my view, May 1 is the best possible date for this purpose because it is the day that communists themselves used to celebrate their ideology, and because it is associated with communism as a global phenomenon, not with any particular communist regime. However, I have also long recognized that it might make sense to adapt another date for Victims of Communism Day, if it turns out that some other date can attract a broader consensus behind it. The best should not be the enemy of the good.
As detailed in my May 1 post from 2019, November 7 is probably the best such alternative, and over time it has begun to attract considerable support. Unlike May 1, this choice is unlikely to be contested by trade unionists and other devotees of the pre-Communist May 1 holiday. While I remain unpersuaded by their objections on substantive grounds, pragmatic considerations suggest that an alternative date is worth considering, if it can thereby attract broader support.
The November 7 option is not without its own downsides. From an American standpoint, one obvious one is that it will often fall close to election day. On such occasions, a November 7 Victims of Communism Day might not attract as much attention as it deserves, because many will - understandably - be focused on electoral politics instead. Nonetheless, November 7 remains the best available alternative to May 1; or at least the best I am aware of.
For that reason, I am once again doing a Victims of Communism Day post on November 7, in addition to the one I do on May 1. If November 7 attracts more support, I may eventually switch to that date exclusively. But, for now, I reserve the options of returning to an exclusive focus on May 1, doing annual posts on both days, or switching to some third option should a good one arise.
In addition to its growing popularity, November 7 is a worthy alternative because it is the anniversary of the day that the very first communist regime was established in Russia. All subsequent communist regimes were at least in large part inspired by it, and based many of their institutions and policies on the Soviet model.
Having explained why November 7 is worthy of consideration as an alternative date, it only remains to remind readers of the more general case for having a Victims of Communism Day. The following is adopted from this year's May 1 Victims of Communism Day post, and some of its predecessors:
The Black Book of Communism estimates the total at 80 to 100 million dead, greater than that caused by all other twentieth century tyrannies combined. We appropriately have a Holocaust Memorial Day. It is equally appropriate to commemorate the victims of the twentieth century's other great totalitarian tyranny.
Our comparative neglect of communist crimes has serious costs. Victims of Communism Day can serve the dual purpose of appropriately commemorating the millions of victims, and diminishing the likelihood that such atrocities will recur. Just as Holocaust Memorial Day and other similar events promote awareness of the dangers of racism, anti-Semitism, and radical nationalism, so Victims of Communism Day can increase awareness of the dangers of left-wing forms of totalitarianism, and government domination of the economy and civil society.
While communism is most closely associated with Russia, where the first communist regime was established, it had comparably horrendous effects in other nations around the world. The highest death toll for a communist regime was not in Russia, but in China. Mao Zedong's Great Leap Forward was likely the biggest episode of mass murder in the entire history of the world.
November 7, 2017 was the 100th anniversary of the Bolshevik seizure of power in Russia, which led to the establishment of the first-ever communist regime. On that day, I put up a post outlining some of the lessons to be learned from a century of experience with communism. The post explains why the lion's share of the horrors perpetrated by communist regimes were inherent flaws of the system. For the most part, they cannot be ascribed to circumstantial factors, such as flawed individual leaders, peculiarities of Russian and Chinese culture, or the absence of democracy. Some of these other factors, especially the last, probably did make the situation worse than it might have been otherwise. But, for reasons I explained in the same post, some form of dictatorship is virtually inevitable in a socialist economic system where the government controls all or nearly all of the economy.
While the influence of communist ideology has declined since its mid-twentieth century peak, it is far from dead. Largely unreformed communist regimes remain in power in Cuba and North Korea. In Venezuela, the Marxist government's policies have resulted in political repression, the starvation of children, and a massive refugee crisis - the biggest in the history of the Western hemisphere. The removal of President Nicolas Maduro has so far done little to change the nature of that regime.
In Russia, the authoritarian regime of former KGB Colonel Vladimir Putin has embarked on a wholesale whitewashing of communism's historical record. Putin's brutal and indefensible invasion of Ukraine owes more to Russian nationalist ideology than communism. But it is nonetheless fed in part by his desire to recapture the supposed power and glory of the Soviet Union, and his long-held belief that the collapse of the USSR was "the greatest geopolitical catastrophe of the century." It is also telling that most communists in Russia and elsewhere have joined with nationalists in backing Putin's line on the war.
In China, the Communist Party remains in power (albeit after having abandoned many of its previous socialist economic policies), and has recently become less tolerant of criticism of the mass murders of the Mao era (part of a more general turn towards greater repression).
China's horrific repression of the Uighur minority is reminiscent of similar policies under Mao and Stalin, though it has not - so far - reached the level of actual mass murder. But imprisoning over 1 million people in horrific concentration camps is more than bad enough.
Far-left support for Hamas since the horrific October 7, 2023 terrorist attack is yet another reminder of the inherently evil nature of communist ideology. Backing terrorism is part of a long history of support for repression and mass murder. Not all extreme socialists of the type who support Hamas are communists. But the latter are a subset of the former.
In the West, the popularity of "democratic socialism" in some quarters is a sign that many have failed to learn the lessons of the communist experience. Democratic socialism has many of the same flaws as its authoritarian counterpart, and - as the Venezuelan case shows - is unlikely to stay democratic for long, if implemented. Ironically, in their support for sweeping government control of the economy, democratic socialists have much in common with MAGA nationalists.
Victims of Communism Day is also a good time to remember our duty to help those victims. Among other things, it is unjust to deport migrants fleeing oppressive Marxist dictatorships, like those Cuba, Nicaragua and Venezuela, as the Trump Administration seeks to do to hundreds of thousands who entered the US legally under the CNVH program. This year, Trump ramped up efforts to deport Cubans back to their communist oppressors.If some on the left tend to ignore the evils of socialism, many on the nationalist right have been exacerbating the plight of its victims.
In sum, we need Victims of Communism Day because we have never given sufficient recognition to the victims of the modern world's most murderous ideology or come close to fully appreciating the lessons of this awful era in world history. In addition, that ideology, and variants thereof, still have a substantial number of adherents in many parts of the world, and still retains considerable intellectual respectability even among many who do not actually endorse it. Just as Holocaust Memorial Day serves as a bulwark against the reemergence of fascism, so this day of observance can help guard against the only ideology with an even greater number of victims.
The old provision dated back to 1868, and read, "The citizens of this State shall have the right to keep and bear arms, for their common defense." The new, which passed 71%-29%, will read:
(a) The citizens of this State shall have the right to keep and bear arms, for:
(1) Their common defense;
(2) Lawful hunting and recreational use; and
(3) Any other lawful purpose.
(b) The right to keep and bear arms under subsection (a) of this section includes without limitation the possession and use of:
(1) Ammunition;
(2) Firearm accessories; and
(3) Firearm components.
(c) The right to keep and bear arms under subsection (a) of this section is a natural, fundamental, and individual right that shall not be infringed.
I was just listening to a great talk about taboo words by Steven Pinker at the FIRE Soapbox conference, and particularly liked this example of "emphatic swearing":
The taboo word is often used to draw a listener's attention, emphasizing the following noun or adjective. For example: "This is really, really fucking brilliant" [that's a reference to the Bono incident that led to FCC action -EV] or "He thinks he's a fucking scoutmaster, Rip Van fuckin' Winkle."
When emphatic and idiomatic swearing is overused, it can lead to a form of English sometimes referred to as "fuck patois." This is a style where swearing is so pervasive that it becomes almost a defining feature of the language. An example of this can be found in the story of a soldier who says, "I come home to my fucking house after three fucking years in the fucking war, and what do I fucking well find? My wife in bed, engaged in illicit sexual relations with a male!"
I think there's more going on in the soldier story than just fuck patois—indeed, what makes it emphatic might be the absence of "fuck" in the closing phrase—but in any event it's pretty funny.
Note that the term "fuck patois" is often credited to Tom Wolfe.
From Magistrate Judge Kenneth Schroeder's Report and Recommendation Sept. 22 in Doyle v. James, affirmed Wednesday by Judge John Sinatra (W.D.N.Y.), plaintiff's allegations:
Plaintiff Paul Doyle ("Doyle") is the Senior Pastor at Cornerstone Church in Batavia, New York. Cornerstone is a small, rural church with a history of service and community outreach. Cornerstone has worked to build relationships with communities of color and was aggressive in their assistance to victims of the mass shooting in Buffalo.
Plaintiff Clay Clark ("Clark") is the owner and operator of The Thrive Time Show, a highly successful business podcast. Clark has twice been named the US Small Business Association Entrepreneur of the Year and is the recipient of other business awards.
"ReAwaken America" is a conservative political movement that hosts events throughout the country. The ReAwaken America Tour ("the Tour") was scheduled to host an event in Rochester, New York on August 12, 2022 at the Main Street Armory. However, after community members and local politicians spoke out against the event, the Armory cancelled it.
The Tour then reached out to Doyle to see if Cornerstone would be willing to host the event. Doyle met with groups from Rochester to try to understand their concerns and concluded that "the Tour was not what was being portrayed in the media and by government officials." Doyle thus agreed to host the event at Cornerstone "due to his strong belief that free speech should not be restricted and those who attempt to exercise it should not be intimidated, particularly by government officials." The event was scheduled for August 11-13, 2022.
On August 3, 2022, New York Attorney General Letitia James sent a letter addressed to Clark and General Michael Flynn—a co-organizer of the Tour—to Doyle's home address "c/o Cornerstone Church." Plaintiffs allege that the letter was "nothing less than an attempt to covertly intimidate and threaten the Plaintiffs into shutting down the event."
James's letter stated, in part:
As New York's top law enforcement officer, I have significant concerns that the ReAwaken America Tour's upcoming event at the Cornerstone Church in Batavia, New York on August 12 and 13 could spur extremist or racially motivated violence. These concerns center around the event's proposed dates, which coincide with the five-year anniversary of the deadly Unite the Right rally in Charlottesville, Virginia, and past extremist statements made by yourselves and the other featured speakers on the tour.
The Florida Legislature recently enacted a new law that allows state officials to designate certain groups "domestic terrorist organizations" (DTOs). Soon thereafter, Florida's Governor and Cabinet designated Plaintiffs CAIR-Foundation, Inc., and CAIR-Florida, Inc., as DTOs. The designations take effect on November 5, 2026. At that point, Plaintiffs and others supporting them will be subject to criminal and civil penalties for certain activities. In this action, Plaintiffs contend the new law (or parts of it) and the DTO designations violate their First Amendment freedoms and due process protections….
This is Florida's second effort to designate Plaintiffs as terrorist organizations. Previously, the Governor issued an executive order that designated Plaintiffs as terrorist organizations and prevented them "or 'any person known to have provided material support or resources' to [them] 'from receiving any contract, employment, funds, or other benefit or privilege' from executive or cabinet agencies or from any county or municipality of the state." This court preliminarily enjoined enforcement of the executive order, finding it likely violates the First Amendment. [See this post on that decision. -EV] The Governor appealed, and the appeal remains pending.
After this court's decision, the Florida Legislature enacted HBs 1471 and 1473, which created a DTO designation process. The Florida Department of Law Enforcement later promulgated Emergency Rule 11RER26-8, which implements this legislation. Pursuant to the legislation and rule, Florida's Chief of Domestic Security issued a written notice of intent to designate Plaintiffs as DTOs…. [T]he Governor and Cabinet held a public meeting, at which they approved the designations….
{[U]nder [Fla. Stat.] § 775.33(3), "[a] person who knowingly provides material support or resources to a designated … domestic terrorist organization" commits a first-degree felony. See also Fla. Stat. § 775.33(1)(d) ("'Material support or resources' means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, or transportation. The term does not include medicine or religious materials.").}
[This post is co-authored with Professor Seth Barrett Tillman.]
On November 3, 2026, U.S. Senator Amy Klobuchar (Minnesota-Democratic Party) was elected Governor of Minnesota. It is expected that, at some point, she will resign her U.S. senate seat, then take up the governor's position, and subsequently make a temporary appointment to fill her then-vacant senate seat. That dance of musical chairs happens from time-to-time. But some have also reported that Klobuchar must resign her senate seat. CBS News quoted political science professor David Schultz (Hamline University, Minnesota): "At some point she's going to have to step down as U.S. [S]enator." That might be true pragmatically—as a matter of politics. And sometimes, federal and state constitutional and statutory law bar dual-officeholding. Sometimes, but not all the time. In these circumstances, the law does not expressly bar dual-officeholding where, as here, the two positions are U.S. Senator and Minnesota Governor.
The U.S. Constitution's Incompatibility Clause (Article I, Section 6, Clause 2) bars U.S. Senators and Representatives from concurrently holding certain other federal positions. The position of governor is a state, not a federal position. So, this provision has no application here.
The Minnesota State Constitution has a similar provision (Article IV, Section 5). That provision bars Minnesota's state (not U.S.) Senators and Representatives from holding other state and federal positions. Klobuchar is not a state Senator; rather, she is a U.S. Senator. So, this provision has no application here.
The federal double-dipping statute, 5 United States Code Section 5533 bars drawing two salaries for two positions, where both positions are at the federal level. It has no application to state positions, e.g., governor. Moreover, it does not bar actual dual-officeholding; rather, it bars receiving two streams of full-time compensation or salary. Again, this provision has no application here.
Beyond these express provisions of positive law relating to incompatible offices, there are two common law doctrines, announced by state and federal courts, relating to incompatible offices. The more narrow doctrine prohibits one person holding two positions where one position supervises the other position or determines its compensation. Here, the two positions—U.S. Senator and Minnesota Governor—neither supervise one another, nor determine one another's compensation. So, this doctrine has no application here.
Finally, there is a more expansive common law doctrine relating to incompatible offices. This doctrine holds that, where as a practical matter, one person cannot carry out both sets of duties connected to two positions, the two positions are incompatible. It might be argued that a governor, particularly in an emergency, must reside within her state, and that a U.S. Senator, should generally be on hand, at short notice, to carry out Senate business. Given the physical distance between Minnesota and Washington, D.C., it is not entirely frivolous to suggest that this doctrine might act as a bar here. But the bar here is not distance, it is whether one can practically carry out both sets of duties. Governors frequently leave their states for short periods of time—even for vacations. That's allowable as long as they are within reach by telephone or video link, and as long as they can return quickly in the event of an emergency. Likewise, the U.S. Senate can choose to accommodate a Senator with responsibilities distant from D.C.—the Senate could allow participation in debate by video link, and it could allow remote voting, as long as the votes are reasonably authenticated. In other words, it is not a slam dunk that this expansive doctrine should apply on these facts, particularly given that this doctrine is merely a judicial creation lacking any foundation in both the U.S. Constitution and the Minnesota Constitution. More generally, we should not allow ad hoc judicial creations to supersede democratic elections and add to the qualifications and incompatibilities expressly set out in positive law.
Having one person hold two government positions—including state governor and U.S. Senator—is not a particularly good result. But the fact that a result is bad does not mean, without more, that that result is barred by our law. Not every bad thing is illegal; not every bad result is unconstitutional. And pretending the U.S. Constitution and Minnesota Constitution bar what we think is bad today elevates our intuition into legal duties only by undermining what the legal system actually commands. And if today, our intuition is vindicated, we might do well to remember that tomorrow, it might be someone else's intuition being vindicated and in ways that we might come to regret.
Among those who have considered this issue, I expect that many (and, perhaps, most) believe, as Professor Shultz believes, that Klobuchar must resign her senate seat before she becomes Minnesota's governor. That is, of course, the received wisdom. And that should tell you all you need to know about . . . the received wisdom.
[Seth Barrett Tillman, Associate Professor. Maynooth University School of Law and Criminology, Ireland. Scoil an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad.]
Pioneer Farmers … is a Minnesota nonprofit corporation that "organizes and conducts annual public demonstrations of historical steam-powered agricultural equipment at Itasca State Park and elsewhere for educational and historical purposes." Pioneer Farmers also owns real property near the north entrance of Itasca State Park in Park Rapids. Appellant Gerald W. Fenske is a former member of Pioneer Farmers. Fenske's membership was revoked in May 2023 for, according to allegations by Pioneer Farmers, "repeated disruptive behavior and conflicts with other members."
In December 2025, Pioneer Farmers petitioned the district court for an HRO [harassment restraining order] against Fenske, alleging that Fenske engaged in harassment "directed at" Pioneer Farmers and its "directors and officers." Along with the petition, Pioneer Farmers filed an affidavit by its president, who averred that, following the revocation of his membership, Fenske made "false and/or misleading complaints to various Minnesota state agencies" about Pioneer Farmers. In response, Pioneer Farmers sent Fenske two cease-and-desist letters.
According to the president's affidavit, after receiving the cease-and-desist letters, Fenske contacted individual members, made "unfounded ownership claims regarding equipment" on Pioneer Farmers' property, and continued "to attempt to stir discord among associated organizations." Fenske also maintained a personal web page titled, "Itasca Pioneer Farmer's Show Cancelled—Allegations of Unsafe Boiler Operation Reason for Cancellation." The president averred that Pioneer Farmers had never cancelled its annual event "for that reason."
In January 2026, the district court conducted a two-day evidentiary hearing on the petition. In March 2026, the district court granted the HRO. The district court found that (1) Fenske maintained "a publicly accessible website containing statements about [Pioneer Farmers'] annual event that imply the event's cancellation, resulting in confusion to the public," and (2) Fenske "contacted three board members after being served with a Cease & Desist letter." Based on these findings, the district court determined that "reasonable grounds" showed that Fenske "engaged in harassment which has or is intended to have a substantial adverse effect on safety, security, or privacy" of Pioneer Farmers.
Photo of the wristband, from the district court record.
The Institute for Free Speech, which litigated the case, reports on the settlement agreement:
Take off the wristbands or leave. That was the message Bow school officials gave parents and a grandfather who were silently protesting in support of female-only sports by wearing pink "XX" wristbands at a girls' high school soccer game in 2024…. After more than two years of litigation …, the Bow School District has agreed to a judgment declaring that it violated the plaintiffs' rights by barring them from wearing the wristbands at the game. U.S…. The settlement also provides $275,000 in attorneys' fees and costs.
The judgment declares that the plaintiffs "have a First Amendment right to silently wear pink wristbands bearing the XX symbol on the sidelines, in the spectator's area, or in the parking lot of any Bow District sporting event." It binds the district and its Board of Education, and it remains in effect even if the district amends its policies….
The plaintiffs wore the wristbands, whose "XX" symbols reference female chromosome structure, to protest a policy permitting a biological male to compete on the opposing girls' team. School officials, accompanied by a police officer, confronted them. The referee halted play until one spectator removed his wristband, and school officials later issued trespass orders barring Fellers and Andy Foote from school grounds, preventing them from attending their children's games and other school activities for a time….
After the district court denied a preliminary injunction in April 2025, the plaintiffs appealed. In August 2026, the U.S. Court of Appeals for the First Circuit ruled in the plaintiffs' favor, finding that they "have established a likelihood of success as to their viewpoint discrimination claim." The court concluded that the protest "fell short of harassment and disruption," and that school officials "cannot favor one side of a debate involving parental speech on an issue of prominent public concern." …
Here's my August post excerpting the First Circuit's opinion, written by First Circuit Judge Sandra Lynch, joined by Judge Jeffrey Howard:
Trump promotes the IEEPA "Liberation Day" tariffs. April 2, 2025. (CNP/AdMedia/Newscom)
On Tuesday, Trump and the Republican suffered a massive electoral defeat, losing control of both houses of Congress. Many have called it a "Blue Tsunami". The defeat was caused by multiple factors. But Trump's unconstitutional actions on tariffs, the War in Iran, and immigration played a major role. Violations of the Constitution don't always result in political setbacks for the perpetrators. But in this case they did "bigly." As Texas GOP Senator Ted Cruz put it, "Tariffs have made everything too expensive, and the Iran war has dragged on too long."
This connection is perhaps most obvious in the case of tariffs. Since returning to power in January 2025, Trump has engaged in a series of massive tariff power grabs, repeatedly attempting to usurp congressional authority in this field, and use it to impose the highest tariff schedule since the Great Depression. He started with the IEEPA tariffs. When the Supreme Court invalidated them, he tried again with Section 122 and Section 301 of the Trade Act of 1974, and the Section 338 tariffs against Canada. In each case, he illegally tried to transform relatively narrow delegations to the executive into a blank check to impose tariffs at will. The net effect of these actions has been to raise prices for consumers, reduce economic growth, and impose some $700 billion in new taxes on Americans over a 10-year period (unless courts end up striking down the new tariffs, too). The tariffs also failed to produce the promised increase manufacturing employment.
Most relevant for present purposes, affordability and price increases were clearly a huge issue in the election. And most voters have come to realize that tariffs increase prices, and damage the economy. Exit polls reveal that 66% of voters believe Trump's tariffs have hurt the national economy (compared to only 21% who believe they helped), and a similar percentage (64%) believe they hurt the economy in their area (only 14% believe they helped it). Numerous other polls show widespread opposition to the tariffs, as well (e.g. here and here). They became a major issue in the elections, linked to the broader issues of price increases and "affordability."
Polls, pundits, and even Donald Trump and Vice President J.D. Vance all agree the Iran War was a major factor in GOP losses. The military stalemate combined with resulting energy price increases have enraged voters. Exit polls showed that 74% of voters said the war was a "crucial" or "important" factor in their decisions, and the vast majority of them disapproved of Trump's conduct of it.
And, as I have argued from the beginning, that war is unconstitutional because it was never authorized by Congress. As I warned at the start of the conflict, the failure to build up the public supported needed to secure congressional authorization greatly reduced the odds of success:
This [constitutional] limitation on presidential power is more than just a technical legal point. The requirement of congressional authorization for the initiation of war is there to ensure that no one person can take the country to war on his own, and that any major military actions have broad public support, which can be essential to ensuring that we have the will and commitment needed to achieve victory against difficult opponents. Trump's failure to seek and secure that kind of broad public support has ensured that only about 27 percent of Americans approve of this military action, compared to 43 percent who disapprove, according to a Reuters poll. Other surveys show similar results. This is a historically low level of public support at the start of a major military action and bodes ill for U.S. staying power if we suffer reverses or a prolonged conflict results.
In all three of these cases, voter backlash arose primarily because of the awful - and highly visible - practical consequences, rather than because of the constitutional issues themselves. Most voters care far more about military failure, rising prices, and visible cruelty of these policies than about their legality. Nonetheless, it is still true that unconstitutional conduct played a major role in causing the tsunami that swept away many GOP officeholders.
We should not be overly optimistic about this chain of events. It would be a mistake to assume that unconstitutional policies always lead to electoral punishment, or even usually do so. In many cases, voters are unaware of illegality or don't give it much weight if they do find out. Previous presidents have often avoided significant political backlash for violating the Constitution. Barack Obama, for example, also waged two unconstitutional wars (those against Libya and ISIS). But because the wars were (at least initially) militarily successful, led to few casualties, and had little visible negative economic impact, he largely avoided political damage. Later, Obama concluded that the Libya war was his worst mistake. But Democrats didn't pay much, if any, political price for it.
Trump's unconstitutional actions on these three issues turned out be politically costly because the negative effects were large and highly visible. Even many generally ignorant and inattentive voters noticed them.
Here, as always, I do not claim that public support for my position somehow proves I was right. As the author of Democracy and Political Ignorance: Why Smaller Government is Smarter, I recognize that majority public opinion is heavily influenced by ignorance and bias, and thus often a poor guide to goo policy. Moreover, while majority opinion agrees with me in condemning Trump's policies here, it would not go as far as I would in sweeping away nearly all tariffs and immigration restrictions.
Despite these caveats, I am glad that the public punished the GOP for these terrible unconstitutional policies. I hope this outcome might deter future presidents from imitating them. At the very least, they might hesitate to pursue them on the same massive scale as Trump did.
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