The gravest contemporary threats to expressive freedom do not always take the form of statutes or criminal sanctions. Increasingly, they take the form of procurement decisions, grant terminations, security-clearance revocations, and regulatory designations—the discretionary instruments of executive administration. When the executive deploys these instruments to penalize disfavored viewpoints while preserving the appearance of ordinary governance, it engages in what I have elsewhere called expressive governance. This phenomenon is doctrinally elusive precisely because it operates in domains where courts have long, and for sound institutional reasons, extended substantial deference to executive judgment.
A recent dispute crystallizes the problem. After a leading artificial intelligence company publicly maintained that its models could not be deployed for use in autonomous lethal weapons or the mass surveillance of citizens, and declined contract terms that would have required otherwise, the government designated the company a "supply-chain risk to national security"—a classification historically reserved for foreign adversaries—and moved to foreclose its commercial relationships across the federal defense ecosystem. The designation was framed as a national security judgment. But the sequence of events, the named targeting, and the disproportion of the response suggest a different object: retaliation for protected expression, accomplished through an administrative label. One might resist this inference, reading the episode as the disciplining of a difficult counterparty rather than retaliation for a viewpoint. The framework developed here does not foreclose that reading — it is designed to test it. Part IV takes up the objection directly.
Building on work I have developed elsewhere, this essay shows how the existing First Amendment doctrine supplies the governing principles to address expressive governance but lacks an administrable method calibrated to the low-visibility, discretion-cloaked form the problem now assumes. It then proposes such a method: a framework of three interlocking tools—a clear-statement requirement, a burden-shifting rule, and an evidentiary presumption of systemic distortion where the executive targets expressive intermediaries. The framework neither invents a new tier of scrutiny nor relaxes the deference that executive administration ordinarily warrants. Rather, it allocates proof and construes authority so that genuine managerial decisions remain insulated while viewpoint retaliation cloaked in discretionary form becomes detectable.
The court concluded that there wasn't enough evidence that the Post's statement (which the Post later retracted) was said with "actual malice," which is to say knowledge or recklessness about its falsehood.
In 2023, Defendant WP Company LLC (the "Post") published an article titled "Trust linked to porn-friendly bank could gain a stake in Trump's Truth Social," which reported on the finances of Trump Media Technology Group ("TMTG"). After almost three years of litigation, the Post has now admitted that portions of the article included false information. Specifically, the Post admits its story incorrectly stated that TMTG paid a $240,000 referral fee in connection with an $8 million loan from an entity known as ES Family Trust. The Post now admits that no such payment was made and recently chose to publish a "Correction" to that effect {"Discovery in the ongoing litigation has established that Trump Media didn't pay a loan referral fee of $240,000, as was stated in the article and was based on The Post's reporting at the time of publication."}. TMTG contends in this defamation lawsuit that the statements about the referral fee were false and defamatory and seeks almost $2 billion in damages resulting from the publication.
However, under controlling United States Supreme Court and Eleventh Circuit precedent following New York Times Co. v. Sullivan (1964), a jury will not have the opportunity to decide this case. To survive summary judgment, TMTG must show more than just that the Post's statements were false and defamatory.
Current law requires that TMTG also establish that the Post acted with "actual malice," that is, TMTG must prove that, at the time the Post published the statements, the Post either actually knew the statements were false or had serious doubt as to whether they were true or false. Further, to prevail under current law, TMTG must establish actual malice by evidence that goes beyond the "preponderance of the evidence" necessary in the usual civil case and adduce evidence on this issue that is clear and convincing.
These standards are exceedingly difficult for any plaintiff to meet, and TMTG has not met them here. TMTG's evidence establishes beyond any doubt whatsoever that the Post published false information—the Post has admitted that. Under the facts presented here, reasonable minds could certainly conclude the Post acted unreasonably and should have conducted a better investigation before making the challenged statements. But under controlling precedent, such a showing is not sufficient to establish actual malice by clear and convincing evidence. Accordingly, the Court is required to grant summary judgment for the Post….
The George Washington University Regulatory Studies Center has issued a call for papers on "Policymaker Responses to the Revolution in Administrative Law." Details below.
In the last 15 years, the Supreme Court has rewritten the textbooks on administrative law. The George Washington University Regulatory Studies Center seeks papers that address how lawmakers and regulators are responding to the revolution in administrative law wrought by the Roberts Court. Below, we have provided examples of possible subjects.
In cases like Loper Bright Enterprises v. Raimondo and West Virginia v. Environmental Protection Agency, the Supreme Court called on agencies to curtail adventurous readings of their enabling acts. Have agencies done so? How are agencies regulating "major questions"? Are agencies strategically advancing the "best reading" of statutes in their decisions?
In Securities and Exchange Commission (SEC) v. Jarkesy, the Court cast constitutional doubt on many agency adjudications. After Jarkesy, how have agencies changed their adjudicative practices? More broadly, how have administrative agencies and the Justice Department changed their enforcement strategies?
The Court has taken an expansive view of the president's constitutional authority to manage the law's execution, most recently in Trump v. Slaughter. How are presidents exercising this new personnel power? When a regime involves adjudication, to what extent, if any, are agencies ensuring the decision-maker's independence? Where do members of the Senior Executive Service fit within contemporary doctrine?
What is Congress's reaction, if any, to these seismic changes in administrative law? Has Congress enacted specific legislative responses to any of the significant regulatory decisions emanating from the Supreme Court? Is there lawmaker interest in providing clarity to enabling acts? Have doctrinal changes affected how Congress allocates resources to agencies?
This is a non-exclusive list. We welcome any submission that focuses on how the Court's evolving administrative law is influencing policymakers (rather than the lower courts). For example, we would welcome a paper that addresses agency implementation of the National Environmental Policy Act (also known as "NEPA") in the wake of Seven County Infrastructure Coalition v. Eagle County.
We welcome submissions from a range of perspectives, including public policy and administration, economics, law, political science, the natural and physical sciences, and economic history. Cross-disciplinary collaboration is encouraged.
Paper proposals will be judged in terms of academic rigor and practical viability. Conceptual, theoretical, and/or empirical proposals are welcome. Proposals should be no more than 700 words and highlight both the approach and practical implications of the research. Proposals are due on August 3rd and may be submitted here.
Selected paper authors will receive an honorarium of $7,000, with $3,000 payable on delivery of the draft paper and $4,000 due on completion of the project.
An excerpt from the June 29 Georgia Court of Appeals decision in Accuracy in Media, Inc. v. Giusti, written by Judge Brian Rickman and joined by Chief Judge Trenton Brown and Judge Amanda Mercier:
Isabella Giusti ("Izzy"), Joni Saxon-Giusti, and Peter Giusti (collectively, "the Giustis") filed a lawsuit against Accuracy in Media, Inc., and its president Adam Guillette (collectively, "Accuracy in Media") asserting claims for defamation [and other torts]….
Here's a summary of plaintiffs' allegations:
Izzy, a native of Savannah, was a junior at Barnard College during the 2023-24 school year. Joni Saxon-Giusti and Peter Giusti are Izzy's parents. On April 18, 2024, Izzy joined a protest regarding the war in Gaza on Columbia University's main quad. During this protest, Izzy was arrested as part of a mass arrest of approximately 100 students. After Izzy was arrested, the New York Post ran an article identifying Izzy as one of the protesters who had been arrested.
On April 21, 2024, a masked person holding a sign that read "AL-QASAM'S NEXT TARGETS" was photographed in front of multiple pro-Israel counter-protestors near Columbia's main quad. According to the Giustis' verified complaint, the Al-Qassam Brigades are the military wing of Hamas, and, under the circumstances, the sign was rightly understood by those who saw it to be offensive and unacceptable and to imply that the counter-protestors should or would be subject to violence.
Izzy was not the masked person in the photograph holding the sign and was not at the protest when the photograph was taken. Nevertheless, several organizations opposed to the student protest at Columbia falsely claimed that Izzy was the person holding the sign.
From yesterday's decision by Judge Henry Edward Autrey (E.D. Mo.) in Eames v. NILE, the plaintiff's allegations (which at this point are of course just allegations):
Defendant NILE is a death metal band founded in 1993 that has released twelve (12) Albums, the most recent of which, "The Underworld Awaits Us All", was released August 23, 2024.
Eames was a member of the band NILE from mid-2021 until October 26, 2023. Eames toured with NILE from mid-2021 to November 2022, performed guitar and vocals stage left, and was paid $700/week.
In November 2022, Eames agreement with NILE was modified by mutual agreement. Pursuant to the new terms, Eames was moved to stage-front center, performed as the Frontman, main-vocalist, and guitarist for NILE, and Eames was to perform on NILE's new album "The Underworld Awaits Us All" ("Underworld") with the album recording to take place during the ensuing year….
As a member of NILE and pursuant to the Agreement, in exchange for his performance and collaboration on NILE's Underworld album, Eames was to perform on NILE's Underworld tours as a member of NILE following the album's release until October 11, 2025 (the last scheduled tour date). In exchange for his performance of the Agreement, Eames was to receive: 1) Tour compensation of $850.00/week on a weekly basis for the duration of the Underworld Tour; 2) 1/3 of NILE's net revenue from the release of the album and sales; 3) 1/3 of NILE's net royalties on future uses of the album, album streaming, and merchandise sales; and 4) 1/3 of NILE's net endorsement and advertising revenue….
On October 23, 2023, a fake article was posted on internet websites Medium.com and NewsBreak.com which falsely stated that Eames had been "criminally charged in Moberly, Randolph County. MO, with multiple counts of battery and sexual assault, claiming authorities were notified of the crimes and that multiple women, including a minor, had reported years of domestic violence and abuse" ("Posts"). The articles included Eames name and a photo of Eames credited to MO Newsdesk 13 (a local cable news affiliate) and was created to appear to be an official press release.
The claims in these articles are completely false and Eames has never been criminally charged with battery, sexual assault, domestic violence/abuse, or minor abuse. The articles were falsely published under the identity of a Missouri based author and self-proclaimed domestic violence advocate and survivor; the actual identity of the Posts' creators remains unknown. Contacting the purported author would have quickly revealed she had no involvement in the posts and would have revealed the deceitful, deceptive, and fraudulent intention of the Posts. NILE acknowledged the falsity of the Posts in communications with Eames.
I wrote about the opinion July 7, when it was issued (see below). Just now, I saw the court issued an order stating, "A judge of this Court withholds issuance of the mandate in this appeal." As I read the Eleventh Circuit's internal operating procedures, this likely means that an "active Eleventh Circuit judge" has indicated that "in the event the panel declines to grant rehearing, the judge requests that a poll be taken regarding en banc consideration."
This is unsurprising, given the 2-1 split on the panel and given the prominence of the case. And of course the indication of an up coming en banc vote isn't that telling, given that the vote may well come out against review. Still, because this is such a prominent case, I thought I'd note the development.
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Some excerpts from [the] very long opinion in Pernell v. Fla. Bd. of Governors of State Univ.by Judge Britt Grant, joined by Judge Charles Wilson; note that the leading Eleventh Circuit precedent on this is Bishop v. Aronov, which both opinions discuss in considerable detail:
[A.] The provision at issue here disallows any "training or instruction that espouses, promotes, advances, inculcates, or compels" students at Florida's public colleges and universities to believe any of eight concepts relating to topics like race and sex:
Members of one race, color, national origin, or sex are morally superior to members of another race, color, national origin, or sex.
A person, by virtue of his or her race, color, national origin, or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
A person's moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, national origin, or sex.
Members of one race, color, national origin, or sex cannot and should not attempt to treat others without respect to race, color, national origin, or sex.
A person, by virtue of his or her race, color, national origin, or sex, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin, or sex.
A person, by virtue of his or her race, color, national origin, or sex, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
A person, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin, or sex.
Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, national origin, or sex to oppress members of another race, color, national origin, or sex.
Though "promot[ing]" any of these concepts is barred, criticizing them is not. Beyond that, the Act allows instructors to introduce the ideas in a neutral fashion, permitting discussion "as part of a larger course"—so long as "instruction is given in an objective manner without endorsement of the concepts." And the law does not say how far past the classroom its restrictions extend—off-campus speeches and other settings may be in play….
Brown v. Board of Education was decided in 1954. How much of an impact did Brown have on racial segregation in the United States over the next two decades?
Mapp v. Ohio was decided in 1961, Miranda v. Arizona was decided in 1966, and Katz v. United States was decided in 1967. How much did criminal procedure law change over the ensuing two decades?
Roe v. Wade was decided in 1973. Nineteen years later, the Supreme Court reaffirmed that precedent in Casey.
Romer v. Evans was decided in 1996. Nineteen years later the Supreme Court created a constitutional right to same-sex marriage.
And so on.
Certain landmark Supreme Court precedents have an immediate and significant impact on the state of constitutional law. Other precedents change very little. In my view, as we celebrate Heller's eighteenth birthday, not much has changed for gun owners living in blue states. To be sure, I think Heller was correct. And there have been some wins as states have revised their gun laws--often kicking and screaming. But the impact of Heller pales in comparison with the two decade run after other landmark cases. Even where there is "shall issue" conceal carry, virtually every public place is off limits, making it difficult to actually carry. States have imposed burdensome registration and licensing schemes, making simply keeping a firearm a hassle. And to date, the Court has seemed more interested in letting pot users own guns than deciding which arms and accessories are protected by the Second Amendment.
Eighteen years ago, on June 26, 2008, the Supreme Court decided District of Columbia v. Heller. This landmark decision declared that the Second Amendment protected an individual right to keep and bear arms that was not connected to militia service. As a result, the District of Columbia's handgun ban was unconstitutional. Eighteen years later, the Second Amendment has become a regular feature of the Supreme Court's jurisprudence. But as the right to keep and bear arms becomes old enough to vote, it is worth taking stock of how much has been accomplished on the ground. Regrettably, in nearly two decades, very little about the practical right to keep and bear arms has changed.
The biggest decisions, Heller and McDonald v. City of Chicago (2010), invalidated handgun bans that were virtually non-existent across the country. New York Rifle & Pistol Association v. Bruen (2022) halted the "may issue" conceal carry regimes, which were only in effect in a minority of states. Most recently, Wolford v. Lopez (2026) ruled that Hawaii could not presumptively ban firearms from all private property, but those businesses will gladly post signs to exclude gun owners. With each incremental victory, anti-gun governments have resisted the Second Amendment and marginalized gun owners. Unless the Supreme Court starts to vigorously enforce all facets of the Second Amendment, Heller will have amounted to little.
Moreover, perhaps the greatest unintended consequence of Heller and its progeny has been to provide progressives with a target to attack originalism:
Perhaps the biggest fallout from Heller is that the Second Amendment has become a cudgel the left can use to attack originalism. While most originalist cases promote judicial restraint, for example, Dobbs let the states decide the abortion issue, and Heller delegated to the courts the power to review gun control laws. I doubt anyone who was unpersuaded by Heller has become persuaded by Bruen and its progeny. The battle lines from 2008 haven't moved an inch. All that has changed is the membership of the Court: Justices Souter, Stevens, Scalia, Kennedy, Ginsburg, and Breyer have been replaced by Justices Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett, and Jackson. What will the Second Amendment look like in another eighteen years? I suspect not much will change unless the Court begins vigorously enforcing cases that actually enable gun owners to exercise their right to keep and bear arms.
Heller was an originalist decision, except when it started making up exceptions out of whole cloth. Bruen was an attempt at originalism that almost all originalist scholars dispute. Rahimi walked back Bruen barely a year later, letting lower court judges update an Amendment that is not "trapped in amber." And as I'll explain in a future writing, I am almost completely lost after Wolford. The Court has lost the thread on the Second Amendment. Justice Barrett's scholarly exposition (and I do not mean that in a flattering way) leaves a lot to be desired. Justice Jackson is actually making some sense, even if I do not agree with her preference for an interest-balancing test.
In candor, I wrote this column after Hemani and Wolford were decided, but before the Court finally granted the AR-15 petition. The Cook County case might actually provide a material improvement to the rights of gun owners nationwide.
Have things improved since 2008? It's complicated. On the one hand, the Supreme Court has rightly restored the Constitution's original meaning. This is a victory for the rule of law. On the ground, however, things have not changed too much. Gun owners in red states had strong gun protections before Heller and retain those rights thanks to the political process. (Virginia is a gross outlier, as the purple state recently enacted draconian bans on firearms.) By contrast, gun owners in blue states may now be able to obtain a conceal carry permit, but there are very few places in urban environments where they can legally carry. And they still can't possess AR-15s. Indeed, some blue states have been galvanized by Heller to make gun ownership even more oppressive. Fortunately, on the final day of the term, the Supreme Court agreed to hear a pair of cases challenging bans on AR-15s in Illinois and Connecticut.
I'd like to think the Court took this case after so many relists to reverse the Seventh Circuit, but one could never know.
In the unlikely event that people are interested in the actual legal questions, here's the introduction:
There is no material dispute that Tom Brady is the GOAT. Part of his unparalleled success was due to his well-known but rather alternative nutrition, fitness, and recovery methods, which he helped to market more broadly as part of his company, TB12. One of these methods involved bioceramic powder, which is a substance that is integrated into clothing, and, when worn, allegedly improves sleep and muscle recovery. This powder is what this case is about.
In 2014, Tom Brady introduced the parties in this case, MET and Under Armour. MET made a type of bioceramic powder called Redwave. Under Armour, of course, makes athletic apparel. They entered into essentially an exclusive supply agreement, and by early 2017, the parties launched their bioceramic sleepwear product at a consumer show, Tom Brady endorsed the product, and MET and Under Armour signed a short-term agreement to work to bring the product to market.
While propensity evidence is generally inadmissible in criminal cases, an exception for sexual assault cases is both common practice and good public policy.
During the 2026 session, Utah's legislature amended Utah's rules of evidence, adding a new provision (subsection 404(d)). The new provision allows prosecutors to present to juries sexual assault propensity evidence in sexual assault cases. The Federal Rules of Evidence have contained a similar rule (Rule 413) for more than two decades. Numerous states follow comparable approaches—either through rule or caselaw—tracking the common law approach of admitting evidence to prove a "lustful disposition." Utah's rules will now benefit from a provision codifying this approach in Rule 404(d).
Because of the significance of this new rule change, I've written an article with Utah County prosecutor Ryan McBride explaining the rationale behind it and how it will operate in practice. The article makes four arguments in favor of the new rule.
First, because most sex crimes are committed by perpetrators against victims in private places, admitting evidence of similar crimes is often critical to a successful prosecution of those perpetrators. In light of frequently conflicting testimony from victims and defendants in sexual assault cases, admitting similar crimes evidence serves to arm the jury with more information from which to determine the truth and reach an accurate verdict. When the defendant claims to have been unjustly accused, allowing evidence of other acts of misconduct often puts an entirely different light on the matter. Combining direct evidence of guilt with evidence of the defendant's past crimes may thus eliminate reasonable doubt in a case that would otherwise be inconclusive. As Utah Senator Orrin Hatch concluded in co-sponsoring legislation adding Rule 413 to the Federal Rules of Evidence, the public interest in admitting evidence "that will illuminate the credibility of the charge and any denial by the defense is truly compelling." Letter from Sen. Orrin G. Hatch, Rep. Susan Molinari, and Rep. John Kyl to Chief Justice William H. Rehnquist 2 (Oct. 11, 1994).
Second, historically Utah law recognized a similar crimes exception, only for that precedent to be obscured or ignored by what appears to have been sexist assumptions about the unreliability of women reporting sexual assaults. Read More
On December 9, 2025, Plaintiff attended an open meeting of the Tarrant County Commissioners Court ("Commissioners Court"), which is the governing body for Defendant Tarrant County. Plaintiff registered to speak during the public comment period associated with agenda item F1. Defendant Tim O'Hare ("Judge O'Hare"), County Judge of the Commissioners Court, briefly shushed applause from the audience following the previous speaker's remarks on agenda item F1. Plaintiff does not allege that he was clapping or that anyone was reprimanded or removed from the meeting for clapping.
Judge O'Hare called Plaintiff to give his remarks to the Commissioners Court. Plaintiff began by remarking, "Lord, I live in America where people cannot clap. That is insane to me." Judge O'Hare stopped Plaintiff's remarks, telling him, "Your time is done. Sit down. Go. It's not commentary on how we run the court. Your comments are limited to this item. Take a seat, you're not talking on this one." Judge O'Hare then called the next speaker.
In Merriott v. City of Bossier City, decided June 25 by Judge Irma Carrillo Ramirez and joined by Judges Edith Brown Clement and Dana Douglas struck down a City Council public comment policy that
Any person making personal, impertinent or slanderous remarks or who shall become boisterous while addressing the Council shall be forthwith, by the President Pro-tem, barred from further audience before the Council unless permission to continue by [sic] granted by a majority vote of the Council.
The opinion is long, but here's an excerpt of the analysis that holds that the policy is overbroad:
"Personal" is ordinarily understood to mean "of, relating to, or affecting a particular person." And a "remark" is ordinarily understood to mean "the act of remarking," "an expression of opinion or judgment," or "mention of that which deserves attention or notice." To "remark," means "to take notice of" or "to express as an observation or comment."
Based on the ordinary meaning of "personal remarks," the Policy prohibits speakers from uttering an infinite number of protected, relevant statements or questions. For example, a speaker must refrain from: (1) using a councilmember's name for the record; (2) mentioning that a councilmember may have a personal stake in the outcome of a vote; (3) stating that a councilmember engaged in a corrupt act; (4) highlighting that a councilmember had recently been convicted of a crime; (5) claiming that a councilmember lied to the public; (6) suggesting that a councilmember had a conflict of interest; and (7) bringing to public attention that a councilmember had been sued—just to name a few. The Policy forbids a citizen from noting that a councilmember has—even questionably—done anything that may be relevant to the public. The possible applications are unquantifiable, especially when not harnessed by any limiting principle….
In recent months, I have not had a chance to write many science fiction and fantasy reviews, like I used to do more often, particularly when it comes to the Game of Thrones/Song of Ice and Fire universe based on the works of George R.R. Martin. I have the excuse that I was busy with other things, such as the tariff case. But in the meantime, we have accumulated two seasons of House of the Dragon and the start of a third, plus the first season of A Knight of the Seven Kingdoms. When you play the game of reviewing Game of Thrones, you win or your connection with your audience dies! So in this post, I'm going to begin trying to make up for lost time.
Overall, I like both series, and if you like the GOT universe generally, you are likely to enjoy them, too. But House of the Dragon has a number of shortcomings that arise partly from the source material (Martin's book Fire and Blood), and partly from its own flaws. Both series also raise interesting political issues that extend the treatment of such matters in the GOT universe as a whole.
Before going on, I should note there will be some spoilers for the two series here. Most of the episodes and plotlines covered here have been out for many months, and this material is based on George R.R. Martin's books Fire and Blood and A Knight of the Seven Kingdoms, both published six or more years ago. For those who read on but still dare to complain about spoilers, I have but one word: Dracarys!
House of the Dragon
At the start of this series, the Targaryen dynasty is firmly in control of the Seven Kingdoms of Westeros, and dragons are part of the foundation of their power. The Targaryens have a monopoly over their use, and it is believed that only members of the family can successfully tame and ride them.
A succession crisis arises by virtue of the fact that King Viserys (a relatively weak ruler) has no male heirs. He therefore designates his daughter Princess Rhaenyra, as his successor. But many members of the Westerosi elite are unwilling to accept a female ruler. Viserys later marries Alicent Hightower (a member of one of the other powerful noble houses), and has sons by her. But Viserys persists in retaining Rhaenyra as the designated heir. When Viserys suddenly dies, Alicent and others claim that - at the last moment - he changed his mind and designated her son Aegon II as the new heir. Civil war soon breaks out between the Greens (supporters of Aegon) and the Blacks (those who back Rhaenyra). The war becomes known as the "Dance of the Dragons."
In the show, the conflict begins at the end of the first season. By midway through season 3 (where we are now), the fighting has massively escalated, and both sides have suffered terrible losses, while also committing various atrocities. In addition, both Green and Black leaders make foolish tactical and strategic errors. This happens in the show even more than in books. For example, Princess Rhaenys - one of the few generally competent and admirable leaders of the Black faction - early on misses a chance to wipe out most of the Green leadership, with her dragon. This event does not occur in the book.
When I reviewed the first episode of House of the Dragon, back in 2022, I highlighted a central dilemma of this story: there are virtually no major sympathetic characters in the source material. Aegon and Rhaenyra are both manifestly incompetent rulers who care little for the welfare of the people. Many of the other leaders of the two factions are even worse. Rhaenyra's uncle/husband - Prince Daemon - is a murderous megalomaniac. Aegon's brother Aemond One-Eye (who also has ambitions for the throne) is cruel and vicious. And so on.
As I suggested in the earlier review, the TV series tries to deal with this problem by making relatively sympathetic characters out of Rhaenyra and Alicent. The former is a victim of misogyny, and the series (following the book, in some respects) plays up her grief at the deaths of two of her sons in the fighting. Alicent, for her part, comes off as a relative peace-seeker.
But the sympathy for Rhaenyra is hard to maintain given the many wrongs she herself perpetrates, and her indifference to the harm the war inflicts on the "smallfolk" - the common people of Westeros. In one recent episode, Rhaenyra's forces manage to take Kings Landing, the capital. It seems like she might be trying to turn over a new leaf. But she and her underlings soon begin a reign of terror, persecuting commoners who protest against her.
Rhaenyra at one point confiscates stores of food stockpiled by wealthy merchants and aristocrats in order to alleviate food shortages in the city. But the shortages were caused by the blockade imposed by her own naval forces. And advisers rightly point out that the confiscation program won't actually do much to end the shortage (they might have added it could even exacerbate it in the long run, by deterring production and investment). At best Rhaenyra is only modestly less awful than the even worse leaders on the Green side.
Alicent, for her part, has little influence or competence. And, like Rhaenyra, she has little interest in the welfare of the people.
Ultimately, the series drives home the point that both factions are awful and the real problem plaguing Westeros is a system in which aristocratic elites wield power with little or no concern for the people, and no incentive to take their interests into account. This, of course, builds on the themes of the original Game of Thrones series, which also often highlighted the systemic danger of unconstrained political power.
But, in the original GOT, we also had sympathetic, well-intentioned characters like Arya Stark, her sister Sansa, Tyrion, Jon Snow, and (until late in the series) Daenerys Targaryen. There was hope that one or more of them would "break the wheel" (as Daenerys famously put it) and institute a better regime.
There is no such hope in House of the Dragon. That, combined with the lack of sympathetic protagonists, makes the series somewhat dreary and depressing. Also, I'm not sure we need really so many episodes just to drive home the relatively simple point that the Greens and the Blacks are two sides of the same terrible coin. At times, I find myself hoping that the leading characters all die painful deaths - which may well yet happen, especially if it follows the source material!
At the same time, House of the Dragon still features lots of exciting, dramatic moments, great acting, and impressive special effects. That can often divert viewers' attention away from the dismal nature of the characters and the overall situation.
A Knight of the Seven Kingdoms
In some ways, A Knight of the Seven Kingdoms (set about 80-90 years after the Targaryen civil war) is almost the exact opposite of House of the Dragon. The two protagonists are obviously admirable and highly sympathetic. Ser Duncan the Tall (known as "Dunk") is a commoner who spent years serving "hedge knight" Ser Arlan of Pennytree as his squire (hedge knights are poor compared to other members of their class, and must serve as traveling mercenaries to make a living). Just before dying, Ser Arlan grants knighthood to Dunk, taking advantage of the custom that "any knight can make a knight." Because there are no witnesses to the ceremony besides a few birds, when Dunk tries to advance his fortune by taking part in a major tournament wealthier and more aristocratic knights doubt his credentials. Season 1 tells the story of his efforts to establish them.
In the meantime, Dunk meets Aegon (known as "Egg"), a precocious boy who seeks to become his squire. It eventually becomes clear that Egg is actually a member of the Targaryen family, who dislikes life in the royal court, and seeks adventure.
In both the book and the show, it quickly becomes evident that Dunk is a better person - and a better representative of knightly ideals - than the aristocrats who look down on him. He take seriously the knightly vows to be "brave" and "just," and "defend the young and innocent." Most notably, he gets in trouble by defending a common woman against Prince Aerion, a Targaryen who tries to sexually assault her.
Unlike in House of the Dragon, not all the aristocrats we see are venal and uncaring towards the common people. Some actually rally to support Dunk, and several join his cause when Aerion challenges him to a Trial of the Seven (a combat where each side must have seven knights).
Season 1 only recounts the beginning of Dunk and Egg's adventures described in the book. There will be more in Season 2.
Knight of the Seven Kingdoms is more tightly plotted than House of the Dragon, and doesn't rely quite as much on contrivances and inexplicably stupid decisions by the characters to drive the story. There is, however, one small, but very fundamental problem. If "any knight can make a knight," one would expect to see knight inflation! Commoners seeking to become knights should pay poorer knights like Ser Arlan to grant them entry into this higher social class. Instead of scrounging for low-paid mercenary work, he could just sell tickets to knighthood. Paid witnesses to knighthood ceremonies could be used to get around the problem that dogged Dunk. Over time, knight status would end up getting devalued, as more and more people get it. Perhaps this is averted by norms or laws against selling access to knighthood; but one would still expect a black market to emerge. And no such restrictions are mentioned in the book or the TV series. Alternatively, maybe knighthoods granted by obscure hedge knights have little prestige. But, even if so, they are still better than remaining a commoner.
Like House of the Dragon and the original Game of Thrones series, Knight of the Seven Kingdoms highlights the systemic nature of the challenges facing Westeros. Dunk, Egg, and other relatively well-intentioned knights and aristocrats can do some real good at the margin, and viewers naturally root for them.
But the deeper evil is a social and political system in which commoners are largely at the mercy of a small hereditary elite. If a commoner runs afoul of a noble or is just in the wrong place at the wrong time, he or she can easily end up getting robbed, subjected to forced labor, sexually assaulted, or even murdered.
Viewers familiar with the Game of Thrones series or the books it is based on also know that, even if Egg learns valuable lessons from his time with Dunk and eventually becomes king, he fails to make any significant change in this system. By the time the GOT plot begins (about a century after the events of Knight of the Seven Kingdoms), Westeros's political and social system is still just as bad as before.
At the start of GOT, as in the era of House of the Dragon, the royal succession is still sometimes unclear, which in turn leads to civil war when there are rival claimants to the Iron Throne. This, of course, is a systemic weakness of monarchy.
It may seem like we don't really need these reminders of the systemic nature of political problems. We like to think we have long since left behind aristocratic feudalism and hereditary monarchy of the kind depicted in these series. But it is nonetheless useful to remember the awful nature of these systems, at a time when "postliberals" on the right promote nostalgia for pre-modern society, and some on the far left suggest that medieval peasants were somehow freer and happier than modern workers, and worked less than we do (they didn't).
Moreover, as I have emphasized in previous writings on GOT, even many modern people who have no desire to return to medieval times tend to forget that we need systemic constraints on government power to address our political and economic problems, and cannot rely on bringing supposedly benevolent leaders to power. The GOT universe is a useful - and highly entertaining! - reminder of that vital truth.
His proposal to limit the next-game consequences of yellow cards and red cards deserves serious attention. But his proposals for awarding two points for a run-of-play goal and only one for a PK is flawed, as is his idea for changing soccer's overtime rule.
Today law professor Richard Epstein published an intriguing blog post, entitled "FIFA's Flawed Rulebook." Epstein urges that we should reexamine some of the "rot" in soccer's current rules, which leads to unfair outcomes. He makes three recommendations for improving the great game: (1) revising yellow-card accumulation and automatic suspensions following red cards; (2) awarding two points for a run-of-play goal and only one point for a penalty-kick goal; and (3) changing overtime by gradually reducing the number of players on the field. As an avid soccer fan, I endorse Epstein's call for reviewing the rules and improving them where possible. But on the merits of his particular proposals, I like only the first but not the last two.
Revising the yellow card and red card next-game-consequences rules
Epstein proposes reconsidering how yellow cards and red cards currently operate. They both carry consequences over from one game to the next. A yellow card carries little immediate consequence in the first game where it is given. Indeed, because there is no real penalty, players often resort to "tactical fouls" to stop breakaways and other scoring opportunities. It is only when a player receives a second yellow card—even in the next game—that a serious consequence results: expulsion. Red cards also typically carry over to the next game: almost invariably, the player is suspended.
The problem with these next-game repercussions, as Epstein nicely explains, is that "they violate a fundamental principle of justice … by refusing to keep the pluses and minuses of each game self-contained, which could matter any time a red or yellow card is given." Thus, they carry "the sins of one game over to the next."
Epstein proposes that, instead of the current yellow card accumulation rule, a better approach is to track hockey by making the offending player sit out for a few minutes—an approach that can be further tweaked by extending the time a player is required to sit for a "major" foul. Similarly, for a red card in one game, the issue of a next-game suspension could be carefully reviewed during the several days leading up to the next game, with a focus on the intent of the offending player. For example, Balogun's red card suspension (which I discussed at length here and here) could have been reviewed under a predetermined set of principles and overturned.
Epstein's main point—generally keeping consequences of fouls contained to a single game—makes considerable sense. And, putting in place a more articulated set of principles for reviewing red card suspensions also makes sense, particularly in the wake of the way Balogun's suspension was reviewed under (seemingly) vague principles. Epstein's ideas should be given a test run in organized play to see how they work.
Awarding two points for a run-of-play goal and one point for a penalty kick goal.
Epstein's next proposal is much more controversial. Epstein argues that "it is imperative that scoring rules change so that a penalty shot is worth only one point and a goal from the field is worth two." Read More
My essay on the topic collects the available empirical research. There is support for the theory that, as police across the nation pulled back from some forms of proactive policing after protests surrounding George Floyd's killing in Minneapolis, homicides and gun violence increased as a result.
In 2020, major cities across the country suffered dramatic spikes in homicides and shootings. One hypothesis for explaining these spikes is de-policing: the idea that anti-police protests in the wake of George Floyd's killing in Minneapolis led police across the nation to pull back from some forms of proactive policing. The basic idea is that anti-police protests in the wake of George Floyd's killing in Minneapolis led police across the nation to pull back from some forms of proactive policing. The possible consequence, according to this hypothesis, was an increase in homicides and gun violence. This thesis, which I have called the "Minneapolis Effect," continues to warrant research and investigation. It remains a strong candidate for explaining a significant part of the nation's homicide and shooting spikes in major cities in 2020.
My chapter in a forthcoming book on violent crime argues that more research should be conducted to specifically examine the relationship between de-policing and firearms offenses. As I explain in the chapter, it is well known that, in 2020, many major cities across the country suffered from dramatic spikes in homicides and shootings. According to the National Center for Health Statistics, the homicide rate in the U.S. increased from 6.0 homicides in 2019 to 7.8 per 100,000 in 2020. This was the largest one-year increase in homicide rates ever recorded. Similarly, a major analysis of a sample of 34 cities by Professor Richard Rosenfeld et al. for the Council on Criminal Justice reported that homicides in 2020 were 30% higher than in 2019. The study also found that a structural break occurred in the homicide trends in June of that year, indicating large, statistically significant increases in homicide rates after adjusting for seasonality and long-term trends. Nationally, nearly 5,000 more Americans died that year due to the increase in homicides. And much of the increase in homicides was concentrated in the nation's major cities, apparently in impoverished areas.
While explaining trends in homicide rates in general is a long-debated topic, explaining why thousands of additional victims were killed in a recent year remains a discrete issue that would seem to be within the ken of modern social science. Read More
