James.galbraith

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Robert F. Kennedy Jr.’s presidential candidacy is a stale meme that’s yet to go viral, unlike the more than 100 U.S. children who’ve contracted measles so far this year because some silver spoon loaf-brain told their parents vaccinations were for losers.

But while Kennedy is likely to become president right around the time Donald Trump scrawls a working unified field theory into his mashed potatoes, that doesn’t mean he isn’t still dangerous. One of RFK Jr.’s campaign consultants has already confirmed he’s a likely spoiler for Donald Trump, but he could still leach more votes away from Trump than Biden, despite his progressive-ish pedigree. And hey, we can help make that happen—by showing the world that this longtime “Democrat” turned independent presidential candidate has a lot more in common with Trump than any Democrat.

The latest evidence that Kennedy is more dog-whistling, conspiracy reactionary than True Blue Democrat comes in the form of a podcast interview he did with right-wing something-or-other Tim Pool. His answer on Confederate statues—and the appropriateness of “honoring” a seditious, virulently racist government that barely lasted four years—could have come from any Southern Republican. Or, if you sprinkled in a few non sequiturs about the apocalyptic repercussions of low-flow shower heads, from Trump himself.

Asked if he condemned the melting down of the Robert E. Lee statue in Charlottesville, Virginia, Kennedy responded that he didn’t like it at all. Nope, not one bit.

Watch:

RFK Jr.: I have a visceral reaction against the attacks on those statues. I grew up in Virginia. I know that there were heroes in the Confederacy who didn’t have slaves. I just have a visceral reaction to destroying history. I don’t like it. I think we should celebrate who we are, and that, you know, we should celebrate the good qualities of everybody. If we want to find people who were completely virtuous on every issue throughout history we would erase all of history. And, you know, values change throughout history and we need to be able to be sophisticated enough to live with, you know, our ancestors who didn’t agree with us on everything and who did things that are now regarded as immoral or wrong. Because maybe they had other qualities that we want to celebrate, and clearly Robert E. Lee had extraordinary qualities of leadership and, you know ... I wouldn’t have done that.

Of course, there are several ways to debunk Kennedy’s horribly shopworn “argument.” First of all, as University of Chicago history professor Jane Daily told NPR in 2017—while Confederate iconography was being dismantled across the country and Trump was vigorously defending it—Confederate statues were never really about honoring anyone’s heritage.

“Most of the people who were involved in erecting the monuments were not necessarily erecting a monument to the past," said Dailey, “but were rather erecting them toward a white supremacist future.”

Indeed, most of the statues went up well after the end of the Civil War—during periods of notable progress for Black Americans.

NPR:

James Grossman, the executive director of the American Historical Association, says that the increase in statues and monuments was clearly meant to send a message.

"These statues were meant to create legitimate garb for white supremacy," Grossman said. "Why would you put a statue of Robert E. Lee or Stonewall Jackson in 1948 in Baltimore?"

So, clearly, these statues were about promoting white supremacy, and had nothing to do with any legitimate preservation of anyone’s “heritage.”

Meanwhile, the good citizens of Germany—who clearly have no intention of erasing the history of World War II, lest its grave sins be forgotten—nevertheless manage to get through each new day without engaging in knock-down, drag-out fights over Nazi flags and Hitler statues. There’s no German version of Bo and Luke Duke driving around rural Rhineland in their tricked-out van The Doctor Mengele. Slavery—and the secessionist government that fought a ruinous war on its behalf—were moral obscenities, just like Germany’s Final Solution. So clearly it’s possible to preserve history—in all its nuances—without lionizing its villains.

Kennedy is smart enough to know this, of course, so it’s worth asking whether his answer is just right-wing agitprop meant to signal to MAGA voters that he’s a viable option for them. After all, he’s running against a guy who reportedly said “Hitler did a lot of good things.” (If Germany is determined to bury its short-lived Nazi “heritage,” Trump appears equally as determined to resurrect it.)

Of course, this isn’t the first time RFK Jr. has sounded more like a garden-variety MAGA mouse than the scion of a celebrated Democratic family. 

For instance, last month, NBC News reviewed several of his public statements and found he’s “repeatedly dismissed the severity” of the Jan. 6, 2021, attack on the U.S. Capitol, at one point saying Trump’s failed coup “is one of the most polarizing topics on the political landscape. I am listening to people of diverse viewpoints on it in order to make sense of the event and what followed.” In other words, this “Democrat” is keen to both-sides a violent insurrection led by a Republican president who’s almost universally hated by Democrats.

Also, like Trump, Kennedy is apparently a big fan of racist conspiracy theories, having once claimed that COVID-19 may have been “ethnically targeted.”

"COVID-19 is targeted to attack Caucasians and Black people. The people who are most immune are Ashkenazi Jews and Chinese,” Kennedy said during a July 2023 press event in New York City. “We don't know whether it was deliberately targeted or not but there are papers out there that show the racial or ethnic differential and impact.”

Yo, Bobby—the 12th century called. It wants its blood libel back.

Meanwhile, Trump is hoping you don’t notice that Kennedy has far more in common with him than with Joe Biden. Perhaps sensing Kennedy’s natural appeal to reality-skeptical MAGAs, on Truth Social Trump has called Kennedy a “Democrat ‘Plant,’ a Radical Left Liberal who’s been put in place in order to help Crooked [sic] Joe Biden.”

And we already know about Kennedy’s vaccine skepticism—a stance that appeals far more to MAGA Republicans than Biden Democrats. Trump appears to be well aware that unnecessarily spreading easily preventable diseases is tres chic these days, and that Kennedy is at the vanguard of this important social reform. So Trump has taken to the stump to say crap like this …

TRUMP: And I will not give one penny to any school that has a vaccine mandate or mask mandate.

Okay, sure. But every state in the union requires schoolchildren to be vaccinated against communicable diseases, so what Trump appears to be saying—whether he knows it or not—is that he’ll eliminate all federal funding for schools. He may eventually discover that’s not all that popular. 

If we’re lucky, Trump’s and Kennedy’s race to the bottom will end in tears for both of them as they split the bonkers vote, and Joe Biden, this cycle’s only reasonable presidential hopeful, will easily prevail. And if not—well, hope you really dig polio, man.

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In a development that should surprise absolutely no one, Justice Samuel Alito announced in a brief letter on Wednesday that he will not recuse himself from two cases involving the January 6 insurrection and former President Donald Trump’s attempt to steal the 2020 election.

Alito faced widespread calls for his recusal, including from many Democratic members of Congress, after the New York Times reported that flags associated with the movement to overturn President Joe Biden’s 2020 electoral victory flew outside his Virginia home and his New Jersey vacation home. His letter announcing that he will not recuse is addressed to many members of the US House who called for him to withdraw from the two cases.

Alito is the Court’s most reliable Republican partisan, and he routinely makes statements from the bench and in his published opinions that are far less ambiguously partisan than, say, the upside-down American flag that flew outside his house in Virginia.

Two things are still notable about the letter, however. One is that Alito blames both flags on his wife, Martha-Ann, (“My wife is fond of flying flags. I am not,” he wrote) and claims that he asked his wife to take down the upside-down flag, “but for several days, she refused.” 

The second is that Alito rests his legal argument on an almost entirely unenforceable code of ethics that the Supreme Court released in 2023. The recusal rules in that effectively nonbinding ethics code are far less stringent than a federal law governing judicial recusals, which applies to the Supreme Court.

Last November, when the Court released this ethics code, I described it as “worse than nothing.” The code is almost entirely unenforceable, and it codifies weak restrictions on justices accepting gifts.

Yet it turns out that I was not cynical enough. I did not anticipate that a justice would cite unenforceable provisions of the Court’s internal ethics code to effectively nullify the justices’ obligations under a more stringent federal law. But that’s exactly what Alito did.

How the Court’s fake ethics code differs from the federal recusal law

The federal statute governing judicial recusals begins with a fairly straightforward declarative sentence: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Notably, this statute applies not just to lower court judges — who actually are bound by a separate ethics code — but also to “any justice.” Justice Alito is a justice.

In his letter refusing to recuse, however, Alito does not even mention this federal statute. Instead, he spends nearly the entire letter explaining why he is not required to recuse himself under the much weaker standard announced in the Court’s own unenforceable ethics code.

That standard begins with a presumption against recusal: “A justice is presumed impartial and has an obligation to sit unless disqualified.” It uses weaker language to describe when justices should recuse themselves — stating that a justice “should” recuse when their impartiality reasonably can be questioned, not that a justice “shall” recuse. And it qualifies the obligation to recuse by stating that the duty to recuse is only triggered when a “reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”

So, while the federal statute begins with a declarative statement that justices are sometimes required to remove themselves from certain cases, the Court’s own code begins with a statement that justices typically have an “obligation” not to recuse themselves. And the Court’s unenforceable code also states that a justice can be relieved of his duty to recuse if there are “relevant circumstances” that the public may not be aware of.

And so Alito spends much of his letter laying out what he claims these relevant circumstances are. Among other things, he points to the fact that he and his wife “own our Virginia home jointly,” giving her a “legal right to use the property as she sees fit.” He also mentions that Martha-Ann purchased the New Jersey home “with money she inherited from her parents” and that the house is “titled in her name.”

Regardless of whether anyone is likely to find this explanation persuasive, Alito mentions these facts solely to argue that he is not bound to recuse under the Court’s weak internal ethics code. Because the federal statute is also binding on “any justice,” he also had an obligation to, at the very least, explain why he was not bound to recuse himself under this more stringent law.

Alito’s letter also exposes another weakness in the Court’s internal code. Suppose that a news outlet had discovered that a lower court judge flew an inappropriately political flag outside of their home, and the judge tried to dodge a request for recusal by pointing out that the flag was flown by their spouse. A federal trial judge’s decision not to recuse could be appealed to a federal circuit court, and a circuit judge’s decision not to recuse could be appealed to the Supreme Court.

Thus, the rules governing federal judges who do not serve on the Supreme Court ensure that a judge asked to recuse from a matter will not have the final decision-making authority in their own case.

An official commentary attached to the Court’s internal code, by contrast, states that “individual Justices, rather than the Court, decide recusal issues.” So Alito has the final word on whether Alito has behaved ethically, and on whether he is relieved of his obligation to recuse because his wife bought their vacation home with her inheritance.

It was clear the day that the Court released its internal code that it wouldn’t have much impact on the justices’ behavior, in large part because most of the provisions of this code have no enforcement mechanism. But Alito’s letter reveals something much more worrisome about the code: It apparently will be used by the justices to justify ignoring their obligations under federal law.

The Sympathizer, a new HBO series adapted from Viet Thanh Nguyen’s Pulitzer Prize-winning novel, demonstrates why perspective is so important when telling historical stories of conflict and warfare. 

“All wars are fought twice,” an opening slide of the show reads. “The first time on the battlefield, the second time in memory.” That idea — penned by Nguyen — is central to both the novel and its adaptation, which highlight how US portrayals of the Vietnam War often omit the views of Vietnamese people, and undermine their humanity and agency by doing so.

Tellingly, the HBO series, which is helmed by famed South Korean director Park Chan-wook, is one of only a handful of mainstream US films or television shows that center Vietnamese or Vietnamese American perspectives while chronicling the war and its aftermath. By featuring these voices, the show reframes the consequences of the war, explores different Vietnamese stances on the conflict, and deepens viewers’ understanding of what the war’s refugees endured.

“So many books have been written about the Vietnam War, so many movies have been made about the Vietnam War, but from the point of view of the outsider,” Kieu Chinh, 86, an actor in the miniseries who herself fled Vietnam around the fall of Saigon, told Vanity Fair. “The Sympathizer was written by a refugee himself. I think it’s about time that a story like this should be told.”

The Sympathizer series comes as Hollywood continues to grapple with the fundamental question of perspective, and the way it changes how an event is depicted and perceived. As Jason Asenap wrote for Vox, Martin Scorsese’s Killers of the Flower Moon was scrutinized for recalling the killings of members of a Native American tribe from the vantage point of the white killer instead of a Native American person. Similarly, Christopher Nolan’s Oppenheimer was criticized for failing to include any Japanese viewpoints and solely conveying the consequences of the bombing from the American scientist’s view. 

The Sympathizer confronts these issues directly in both its examination of perspective and how the show is presented. As the response from some Vietnamese American viewers indicates, it, too, offers just one of many positions people hold about the war. And though its ideas don’t always translate as well onscreen as they do in the novel, the series further underscores why the point of view a story is narrated from is critical. 

How Hollywood has shaped Americans’ views of the Vietnam War

Hollywood has been wrestling with the Vietnam War ever since the US withdrew in the 197os.  

Although many films condemned US involvement — a break from past war movies — they focused heavily on soldiers’ experiences and the trauma they dealt with in combat.

“Depictions of the war have tended to be pretty American-centric. So it’s been said that when Americans talk about the war, they’re really talking about themselves, you know, how they suffered, how they were divided as a nation,” says Duy Nguyen, a University of Houston world culture and literature professor who has specialized in Vietnamese studies. 

As such, major films like Apocalypse Now and The Deer Hunter — though they eyed the war critically — were often deeply lopsided. 

“The films about the war don’t really give Vietnamese people a voice at all. And that’s, I think, one of the tragedies,” says Phuong Nguyen, a historian at Cal State Monterey Bay who has written a book about Vietnamese refugee resettlement in the US. 

Instead, as Viet Thanh Nguyen, the author of The Sympathizer, has written, Vietnamese characters were frequently reduced to props who were “killed, raped, wounded, silenced, demonized, or rescued while we serve as the backdrop for American moral dilemmas.”

In Casualties of War, a 1989 movie directed by Brian De Palma, for example, a Vietnamese girl is raped by American soldiers and “as a character is just rendered as pure, anonymous victimhood,” George Mason University historian Meredith Lair notes. “The Viet Cong are literally depicted as shadowy, faceless mole figures in a tunnel.”

Tropes about the Northern Vietnamese and Viet Cong soldiers frequently emphasized how vicious they were, removing any humanizing nuance. And American depictions of the Southern Vietnamese government suggested that they were incompetent and corrupt puppets of the US, depriving them of agency in their own decisions. 

“Vietnamese communists are typically portrayed negatively in films as ruthless, ideological enemies posing a threat to American values,” says Alex-Thái Đình Võ, a historian at Texas Tech University. “In contrast, the Republic of Vietnam and its associates, America’s main allies during the war … are portrayed as either victims of war or, more often, as inept and corrupt allies, sometimes implicated in war crimes.”

The Sympathizer confronts these clichés with a subplot featuring the main character advising a clueless Hollywood director who is making a film about the Vietnam War. The auteur — played by Robert Downey Jr. and modeled after Francis Ford Coppola — initially attempts to deny speaking parts to any Vietnamese people before he’s convinced otherwise. (A running joke in the series looks at how many ways one Vietnamese extra, played by the main character’s friend, is able to die in the film.)

Given the ties between pop cultural portrayals and real-life prejudices, the one-sided depiction of Vietnamese people in Hollywood after a bitter war may have contributed to the hostile attitudes that many refugees encountered upon arriving in America, as well as enduring anti-Asian racism. 

In a 1975 Gallup poll, more than half of Americans — 52 percent — opposed the resettlement of Vietnamese refugees in the US.

What The Sympathizer does

The Sympathizer reframes these narratives by centering a Vietnamese protagonist who offers insights into the perspectives of people in both North and South Vietnam, as well as a window into the refugee experience in America. 

The lead character, referred to solely as Captain (Hoa Xuande), is a communist spy for the North working undercover in South Vietnam’s secret police. The show picks up shortly before the Fall of Saigon in 1975 and captures the chaos and terror as Southern Vietnamese people attempt to escape. It then follows the Captain as he and his close friends and colleagues navigate the refugee resettlement camps and related hardships in the US. The Captain continues his espionage on behalf of North Vietnam, though he begins to question his own allegiances as the narrative progresses. 

By telling this story with these characters, The Sympathizer highlights the toll the war took on Vietnamese people and how diverse Vietnamese viewpoints were about the war. It also features Vietnamese characters as the principal actors in the conflict, rather than as supporting characters to Americans. 

Documenting the chaos and horror of the Fall of Saigon from the vantage point of Vietnamese people trying to escape captures how traumatic that experience was, and what people lost when they fled. In one of the series’ most devastating scenes, Bon (Fred Nguyen Khan), one of the Captain’s best friends, mourns his wife and child when they are killed abruptly by an airstrike on the tarmac. 

Subsequent episodes depict the dismal conditions that the characters have to deal with as they enter the US to live in refugee camps crawling with maggots, roaches, and rats. 

Such perspectives help close the distance that has existed in portrayals of the war by making the stakes more accessible and intimate. 

“They’re looking at regular people like Bon who just gave birth to a kid. And him and his wife are trying to figure out what his first words are,” says Phuong Nguyen. “These are people [who] have hopes and dreams, like every one of us.” 

In chronicling refugees resettling in a new place and struggling to adapt, the show reminds the audience of how US actions have fueled waves of immigration from other countries. It captures, too, the casual racism that many refugees encountered including racial slurs, vandalism, and exoticization by the people around them. 

“Americans like to imagine war stories featuring their heroic soldiers, sailors and pilots. The reality is that refugee stories are also war stories,” Viet Thanh Nguyen has written. 

Because the story’s lead character is a spy and embodies a duality of political views, he also conveys how Vietnamese views on the war were far from monolithic and pushes back on how they’ve been generalized in the past. Supplementary characters, including two of the Captain’s friends, flesh these nuances out more.

“Shows tend to portray the war as one fought by the US against the communist North Vietnam and their southern allies, the Viet Cong,” says Van Nguyen-Marshall, a historian at Trent University. “However, the war was more complicated than that. It was first and foremost a civil war between Vietnamese themselves over the political configuration of their country. Vietnamese on both sides of the war fought and died in numbers that dwarf those of the US.”

Why this matters

By featuring Vietnamese characters as the arbiters of their narratives, The Sympathizer throws the horrors of war into even sharper relief. 

“This is one of the things that makes The Sympathizer so powerful. The Vietnamese [people] speak for themselves in many different voices. They have different interests, different dreams, and different ways of dealing with the war and its legacies,” says Robert Brigham, a historian at Vassar University. 

By providing these varying perspectives, the show forces a broader reevaluation of the conflict. 

One of the biggest takeaways from Nguyen’s novel is how all parties are complicit in it. As well as holding the US accountable for its role, the novel does not shy away from critiquing the actions of both the Northern and Southern Vietnamese governments, and their role in perpetuating the harms of war against their own people. In showing the impact of war on people on different sides of it, including civilians, the series emphasizes its price. 

“Vietnamese people have been represented as victims in dominant discourses, but this series will show us that we all participate in this monstrosity or the killings of others,” says Quynh Vo, a lecturer at American University who studies Vietnamese literature and culture. 

Notably, the novel and series are also still only a slice of the many Vietnamese viewpoints that exist about the war. As the Los Angeles Times reported, some Vietnamese American viewers were troubled by what they initially perceived as the show’s favorable depiction of communism, which some of them had fought against. In both the novel and the show, male characters are also far more dominant than female ones, many of whom are underdeveloped, subject to violence, and given much less attention.

Still, The Sympathizer takes a powerful stand by expanding the scope of war stories. 

“Centering Vietnamese characters and experiences in narratives about the Vietnam War is fundamental to shifting our understanding of the conflict,” says Đình Võ. “It allows for a deeper exploration of the human cost.”

New information shows that everything Supreme Court Justice Samuel Alito has said about the reason an American flag was flown upside down over his home appears to have been a lie. Alito blamed the flag on a dispute with neighbors. Unfortunately for the prevaricating justice, his wife’s altercation with the neighbors became so extreme that those neighbors called the cops. The police report shows that the altercation came weeks after the upside-down flag was hoisted over Alito’s home.

On May 16, The New York Times broke the story that an American flag was flown upside down at the Alito home in January 2021. The upside-down flag, long used as a signal of distress, was appropriated by Donald Trump supporters following Jan. 6, 2021, to express their solidarity with the insurrectionists who had smashed their way into the Capitol building.

Alito denied any connection to the flag and claimed that his wife had put up this symbol in response to an altercation with a neighbor. He also claimed those neighbors had placed an offensive sign about Trump where it was near children waiting to board a school bus. But that excuse always had problems.

Now everything about Alito’s story is falling apart.

The story that Alito told Fox News reporters was that his wife flew the flag because neighbor Emily Baden placed a “Fuck Trump” sign in her yard that was within 50 feet of where children were waiting for the school bus in January 2021. Alito said that his wife had tried to talk to the neighbors about having a vulgar sign so close to where children waited for the bus, but that the conversation ended in an argument. 

Alito then claimed that Baden put up a sign that personally insulted Martha-Ann Alito and blamed her for the Jan. 6 assault. Finally, Alito said that he and his wife were walking through the neighborhood, ran into a man who lived at the property, and he called Martha-Ann Alito a number of disparaging terms, including the c-word.

So she went home and raised a flag in support of insurrection. As one does.

However, even a cursory look at Alito’s claims shows that they’re simply not true. In January 2021, area schools were still dealing with Trump’s mishandling of the pandemic. Children would not return to the classroom until March. So no children were waiting for the bus for Alito’s wife to be concerned about.

The latest information paints a very different picture of the interaction between Baden and the Alitos. Baden and her then-boyfriend, now husband, reported that Martha-Ann Alito was repeatedly harassing them to the point where they called the police and asked them to intervene. 

“Aside from putting up a sign, we did not begin or instigate any of these confrontations,” Baden told Times reporters.

At some point in January, the original “Fuck Trump” sign blew over. Martha-Ann Alito approached Baden thinking that the sign had been removed, but according to Baden, this encounter didn’t end in an argument. It was the first time Baden could ever recall speaking to either of the Alitos.

Following the Jan. 6 insurrection, Baden added two new signs. One of these read “Trump is a fascist.” The other said, “You are complicit.” Neither mentioned Martha-Ann or Samuel Alito, and Baden says that the signs were not aimed at them. Baden’s mother took the signs down out of concern that the same kind of people who attacked the Capitol might bring that kind of violence to their home.

Sometime after the signs had been removed, Baden and her boyfriend saw Martha-Ann Alito sitting in a car outside their home and glaring at them in a way notable enough that they mentioned it to friends. A few days after President Joe Biden’s inauguration—which Samuel Alito skipped—the couple was driving past the Alito home when Alito’s wife ran toward their car, yelling something they couldn’t hear. She then appeared to spit in their direction.

It wasn’t until Feb. 15, a month after the upside-down flag flew over the Alito home, that the Alitos walked past Baden’s home while she and her boyfriend were bringing in the trash containers. Martha-Ann Alito then “used an expletive” and called them “fascists,” Baden told Times reporters. This event was also noted in texts that Baden sent at the time.

At that point, Baden said she snapped. 

She does not remember her precise words, but recalls something like this: How dare you behave this way. You’ve been harassing us, over signs. You represent the highest court in the land. Shame on you.

Her boyfriend admitted that he chased this statement with the use of the c-word. The incident was also observed by a neighbor. 

Following this exchange, the boyfriend went inside and called the police, confirming that it happened on Feb. 15, not before the flag was flown on Jan. 17, as Alito told Fox News reporters.

Alito’s excuse about the kids and the school bus was a lie. His claim that the flag was flown following a dispute with the neighbors is inaccurate. And none of it explains why he flew another pro-insurrection flag over his vacation home.

The Supreme Court is currently considering Trump’s motion for absolute legal immunity for his actions to interfere with the 2020 election while in office. It’s also determining whether the insurrectionists involved in the attempted coup on Jan. 6, 2021, can appropriately be charged with obstruction. 

Alito has not recused himself from either of these cases. And on Wednesday, he stated in a letter to Congress that he will not recuse himself.

“I am therefore duty-bound to reject your recusal request,” he claimed in the letter.

The idea that Alito should be involved in considering any case connected with Trump, Jan. 6, or the 2020 election completely violates any concept of judicial ethics. This isn’t just the appearance of a conflict. It’s a conflict.

The only real question is: Will anyone do anything about it?

The revelation that Alito had flown a pro-Trump flag at a second location sparked renewed pressure in the Senate. Judiciary Committee Chair Dick Durbin has been calling for Alito to recuse himself—which he’s now outright rejected—and for Chief Justice John Roberts to call this rogue justice into line.

“[Chief] Justice Roberts has to step back and realize the damage that’s being done to the reputation of the court,” Durbin told The Washington Post.

The Senate Judiciary Committee needs to open an investigation into Alito’s partisan support for the pro-Trump insurrection. They need to do it immediately.

Two other members of the committee, Sheldon Whitehouse and Richard Blumenthal, have been pressing Durbin to take action. That includes Blumenthal noting that while the Senate can’t regulate the actions of the Supreme Court, it isn’t without power—including the ability to set the number of justices on the court. And outside groups, like Indivisible and Demand Justice, as well as legal experts have also demanded an investigation into Alito’s leanings.

The new information showing that Alito’s claims about the flag incident were simply untrue only reinforces the need for the Senate to move. An impeachment of Alito is fully warranted, but with Republicans holding a narrow margin in the House and anxious to show their allegiance to Trump over the nation, an impeachment seems next to impossible.

There’s no time like the present to dilute Alito’s toxic presence by adding more seats to the Supreme Court.

RELATED STORY: The pressure is building for the Senate to do something about Alito

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In the leaked video of a board meeting from last November, Anne Jakapong Jakrajutatip, part owner of the Miss Universe organization, can be heard offering her unvarnished views on the real value of diversity for the pageant she’s charged with overseeing. She muses that it will be good for the pageant’s image to allow women from nontraditional backgrounds to compete in a potential Miss Universe reality show, but ultimately, “they cannot win.”

“The trans women, the women with husbands, divorced women …” Jakrajutatip explains in the video, which was given to Vox by Rodrigo Goytortua Ortega, the former CEO of Miss Universe Mexico who was present at the meeting. “This is a communication strategy, because, you understand … they can compete but they cannot win. We just put the policy out there. Social inclusion, as people would say.”

Later in the video, a version of which circulated in Asian and Latin American media in February but was not widely available in the US, another board member suggests, “We can have a casting for models of all different colors, sizes, whatever. We are also looking to commercialize that kind of thing — an agency. ‘Miss Universe Model Agency.’”

Jakrajutatip appears to agree with the casting idea. “We can have real size beauty, the contestant. Very big size,” she says. But she also agrees when another board member cautions that “we’ll have to control the audience” lest “they vote all for the big size.”

The main point, Jakrajutatip explains, is that the ensuing buzz will allow them to market Miss Universe products. “It’s all connected,” she concludes. “For money!”

The Miss Universe Organization has not responded to a request from Vox for comment. In a statement on Facebook in February, Jakrajutatip seemed to tacitly confirm the existence of the video but said that her words were taken out of context. “The malicious edited video was out of context and used to manipulate other people which led to the public confusion, misunderstanding, misinterpretation and wrong conclusion,” she said, adding, “I’m a trans woman and a mother myself who all my life fight for the gender equality rights to be where I am.”

Jakrajutatip acquired the Miss Universe Organization in 2022 in her capacity as CEO of the Thai television production company JKN Global Group. In 2023, JKN filed for bankruptcy, and in January 2024, Jakrajutatip sold half her shares to Mexican businessman Raúl Rocha Cantú.

Cantú, who appears in the video but says very little, was the franchise owner of Miss Mexico. He made the news in 2011 as the owner of a casino that was burned to the ground in a cartel-related massacre. Goytortua decided to share the video after he says Cantú failed to pay him for his work. The meeting in the video allegedly took place in November 2023, before the sale was finalized.

The main point, Jakrajutatip explains, is that the ensuing buzz will allow them to market Miss Universe products. “It’s all connected,” she concludes. “For money!”

Jakrajutatip’s comments carry extra significance given the recent controversies swirling around the Miss Universe Organization following the resignations of both Miss USA and Miss Teen USA at the beginning of May. The Miss Universe Organization is the parent company of the Miss USA Organization, and their pageants are sisters. The winner of Miss USA qualifies to compete in the Miss Universe pageant a few months into her reign. Both former titleholders are under NDAs and have made limited comments on their resignations in public, but the reports that emerged in the following weeks allege that they experienced a toxic workplace environment and bullying at the hands of Miss USA Organization president Laylah Rose. (Rose said in a statement to NBC in May, “All along, my personal goal as the head of this organization has been to inspire women to always create new dreams, have the courage to explore it all, and continue to preserve integrity along the way. I hold myself to these same high standards and I take these allegations seriously.”)

As the controversy grew hotter, those in the pageant world demanded to know where the Miss Universe Organization stood. But the Miss Universe Organization was conspicuous by its absence. Thus far, it has issued no statement regarding Miss USA and has made no moves to install new leadership. 

At this point, it’s worth asking the question: What is the Miss Universe Organization for? And who is it serving, if not the very women who spend their lives striving for the crown?

Officially, Miss Universe advertises itself as “The Greatest Celebration of Women.” 

“The Miss Universe Organization (MUO) is a global, inclusive organization that celebrates all cultures, backgrounds and religions,” it says. “We create and provide a safe space for women to share their stories and drive impact personally, professionally, and philanthropically.”

The idea that pageantry offers a safe space to celebrate womanhood is central to the mythology of the institution. When I first spoke to pageant insiders about the Miss USA scandal, they repeated over and over again that Miss USA exists in order to empower women and that the alleged bullying of the departing titleholders was a betrayal of the cause, an aberration of what pageantry is supposed to be about.

What it’s supposed to be about is the soft and feminine-coded skills of presentation and poise — essentially, what sports are to the hard and masculine-coded skills of strength and speed. In theory, pageantry is a place where girls and women can learn how to speak in public and how to present themselves with confidence. 

“Pageants are one of the very rare and few places where we teach young women life skills,” pageant coach and former Miss Montana USA Dani Walker told me. “Most important is poise, confidence, the ability to interview and speak on stage. Those life skills are very applicable and transferable to many things that you want to do in life outside of pageantry. That is the point. That is why we exist.”

Jakrajutatip’s leadership was originally interpreted as fitting this narrative. At the time, the idea of Jakrajutatip, who is a trans woman, at the head of a company once co-owned by Donald Trump was greeted as a sign of social progress. Jakrajutatip’s tenure, reported the BBC, came just as “the pageant becomes more inclusive,” with married women and mothers allowed into the competition for the first time.

I believe the people I spoke to who told me that they found their pageant experience empowering. At the same time, Miss Universe’s stated goal of female empowerment and its recent emphasis on inclusion have always been at odds with the contents of the actual pageant. 

Most of the Miss Universe franchise pageants still consist of asking the contestants to walk across the stage in different outfits — in evening wear, in swimsuits, in costumes themed to their home region. Unlike Miss America, the Miss Universe pageants have no talent competition. There’s an interview portion that varies in length across the different events, but in Miss USA, the contestants are only asked to speak onstage for 30 seconds. 

Miss Universe’s stated goal of female empowerment and its recent emphasis on inclusion have always been at odds with the contents of the actual pageant

“The judges could not care less about your accomplishments,” a recent Miss New York USA contestant wrote in a blog post, “they only want to see that you can string together a few words without sounding daft (an accomplishment for some girls). You could say anything in interview if you answer the question they ask, and answer it confidently.”

If the goal is in fact to value traditionally feminine accomplishments in a way that empowers all women, it’s fair to ask why the contestants are, for the most part, being judged according to a very narrow standard of physical beauty. Is it actually empowering women as a class? Or is it empowering a small group of individual women who have a good time competing in pageants because they fit the brief?

The leaked video of Jakrajutatip’s meeting puts the lie to Miss Universe’s mission statement in the same way that the swimsuit competition does. It shows an organization that uses empty rhetoric about inclusion and diversity as a cover for the same blinkered vision of womanhood it has always pursued: a pageant queen who is thin, cis, and very young, a Barbie doll pre-epiphany.

As the video goes on, Jakrajutatip muses on the importance of having all Miss Universe brands “empower women.” “Female empowerment,” she says. “Whatever is better than this?”

---

Update, May 29, 5 pm ET: This story was originally published on May 29 and has been updated to attribute the leaked video to Rodrigo Goytortua Ortega.

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Of all the disturbing things that could happen if Americans decide to send Donald Trump back to the White House this November, the most corrosive and far-reaching is his plan to institutionalize racism and racial bias into our federal government. An officially sanctioned scheme to deliberately elevate the interests of white Americans—which Trump and his enablers at the Heritage Foundation are planning in plain sight—would damage the nation in ways that most people may not understand.

But as the 2024 election approaches, the four out of 10 American citizens who do not identify as “White alone”‘ should try to imagine what a second Trump term would look like. People from racial backgrounds historically subjected to discrimination—including Black people, Latinos, Asian Americans, and Native Americans—can currently take solace in knowing federal laws, however imperfectly enforced, still exist to deter open and egregious examples of racial prejudice against them. These include principles of equal protection and employment nondiscrimination that have existed to provide redress to those in the labor force for generations now.

However, the Heritage Foundation drafters of Project 2025, Trump’s blueprint for governance if he is again elected, intend to radically redefine what “racism” actually means. For them, “racism” is quite literally reimagined and reconfigured as anything that they perceive as a threat to the continued hegemony of white Americans. We are already seeing an implicit reappraisal of “racism” and civil liberties in several Republican-dominated states, as white people seek to preserve and maintain the racial dominance they have enjoyed in this country since the days of its founding.

If Trump is elected this November, these efforts will become national policy, even as laws that exist to protect against actual racism and racial bias in our society will go largely unenforced at the federal level. Instead, those same laws will be selectively applied and altered to target so-called racism against white people. This transformation is intended to encourage similar efforts in Republican-controlled states, which will then be validated by conservative judges. As explained by MSNBC’s Zeeshan Aleem, Project 2025 is ultimately a “path to unraveling multicultural democracy” with a goal of enshrining white dominance as the law of the land.

In recent years, the Republican Party has consciously and deliberately abandoned almost all efforts to present itself as anything but a group devoted to maintaining white power and white supremacy. The political weapon they choose to wield: blame. White Americans—particularly middle- and working-class white Americans—are routinely indoctrinated by right-wing media to believe that their inability to make economic headway in American society is due to the encroachment of other races upon their “status” as white people.

White Americans are told: 

• They are not able to afford a new home, new car, or earn a substantial salary thanks to an influx of other races willing to accept lower pay.

• That Black people, for example, are to blame for the high cost of health care, curtailing and diverting white people’s access to public benefits such as Medicare and Social Security, as well as their inability to accumulate more wealth. 

• That racial preferences in education are to blame for holding white people back from obtaining better jobs.

• That corporate diversity, equity, and inclusion efforts are skewed unfairly against them and toward undeserving racial minorities.

• That white people are being “replaced” by immigrants (mostly), but more broadly by all nonwhite people. 

This is potent, inflammatory stuff, and it has formed the basis for Republican political and media strategy for decades. But it has now become open and overt propaganda, informing the Republican Party’s policy and translating into explicit strategies for governance. The fact that it’s spun from fictional, racist tropes does not matter. Described as Trump’s “war manual” for his second term, Project 2025 could take this contrived idea of white victimhood and institutionalize it at all levels of the federal government.

The Washington Spectator’s Nancy MacLean reports the Heritage Foundation has been the dominant right-wing think tank and lobbying group influencing the country’s public policies for nearly five decades. Its origins are rooted in right-wing groups that have promoted the same racist, xenophobic and intolerant rhetoric that currently informs right-wing policies at the national and state level, and Heritage itself has sought to capitalize on this country’s racial animosities since its formation in 1973. As reported by USA Today, seven of the advisory groups involved in the preparation of Project 2025 have been identified as extremist or hate groups by the Southern Poverty Law Center.

This blueprint for a second Trump administration clearly states that its philosophy is to advance the interests of white people over those “certain segments of American society” it deems undeserving of any special consideration warranted by this country’s history of racism:

Entities across the private and public sectors in the United States have been besieged in recent years by an unholy alliance of special interests, radicals in government, and the far Left. This unholy alliance speaks in platitudes about advancing the interests of certain segments of American society, but that advancement comes at the expense of other Americans and in nearly all cases violates long-standing federal law.

The entire document is riddled with attacks against government policies designed to redress discrimination against racial minorities, specifically policies that impact hiring and employment, education, and law enforcement. Instead, it sets forth a radical agenda that weaponizes federal agencies to support the interests of white people.

Project 2025’s proposed reworking of the Department of Justice’s Civil Rights Division is illustrative:

The Civil Rights Division should spend its first year under the next Administration using the full force of federal prosecutorial resources to investigate and prosecute all state and local governments, institutions of higher education, corporations, and any other private employers who are engaged in discrimination in violation of constitutional and legal requirements.

Read straightforwardly, that’s simply a restatement of what the DOJ ought to be doing in the first place. But the paragraph that directly precedes it gives away the game:

Even though numerous federal laws prohibit discrimination based on notable immutable characteristics such as race and sex, the Biden Administration—through the DOJ’s Civil Rights Division and other federal entities—has enshrined affirmative discrimination in all aspects of its operations under the guise of “equity.” Federal agencies and their components have established so-called diversity, equity, and inclusion (DEI) offices that have become the vehicles for this unlawful discrimination, and all departments and agencies have created “equity” plans to carry out these invidious schemes.

As envisioned for a Trump-seeded Justice Department, then, “affirmative action” becomes “affirmative discrimination.” In this way, the entire mission of the Civil Rights Division is perverted to root out so-called anti-white discrimination, rather than discrimination against racial minorities. 

To appreciate the motives underlying Project 2025, it’s necessary to understand the right’s panic about the Black Lives Matter protests of 2020, which were triggered in part by the police killing of George Floyd. Those protests, the largest organized movement in American history, were prompted by systemic police brutality in its disparate treatment of Black citizens. American citizens’ unprecedented outpouring of support for the BLM movement resulted in many schools and workplaces adopting policies that implicitly and explicitly acknowledged the myriad forms of racial oppression and discrimination previously ignored in our society. Policies designed to raise awareness of racial bias—and reassessments of “traditional” American history (such as The New York Times’ 1619 Project)—represented an existential threat to the entire white supremacist ethic that organizations like the Heritage Foundation were founded to promote.

Project 2025 embodies the conservative backlash to such efforts. As Aleem explains, it is, at its core, a plan to reimpose white hegemony over all aspects of American life by “consolidating the support of a white nationalist movement and institutionalizing anew the domination of those who are already disadvantaged in our society.” What that means to the racial groups it targets is institutionalized and calculated indifference to employment discrimination, police brutality, and infringement on civil rights. By recasting such protections as discriminatory against white people, the intent is to reverse their adoption by broader segments of American society. 

Put bluntly, white people do not need such protections. Civil rights laws were not passed to rectify injustice against white people, because white people—particularly white men—are the nation’s most wealthy, most politically dominant, and by far the most privileged American citizens. Anti-discrimination laws will probably never change that dynamic, but they do preserve some degree of equal opportunity and protection from this country’s apparently immutable racism.

Nevertheless, emboldened by a right-wing Supreme Court demonstrably hostile to racial equity, Project 2025’s proponents see this as their moment. 

Trump adviser and infamous white supremacist Stephen Miller, an architect of Trump’s child kidnapping policy, has spearheaded dozens of complaints and lawsuits against private companies alleging that their inclusive hiring practices violate the civil rights of aggrieved white people. These lawsuits deliberately ignore the roots of structural racism that prompt such practices in the first place, preferring to focus on individual, inflammatory personal stories of those supposedly victimized by “reverse racism.” Unfortunately, they are likely to find a receptive audience among the conservative judiciary they often self-select to hear such cases. Miller’s group, America First Legal, is an adviser to Project 2025.

All Republican administrations from Reagan onward have sought to roll back protections against nonwhite citizens and other marginalized communities, and Trump’s initial term in office was one of the worst. But the overt, in-your-face racism Trump popularized is now routinely aped at the state level, with Republican governors like Texas’ Greg Abbott and Florida’s Ron DeSantis proudly implementing openly racist policies and touting public, performative gestures showing their disregard for the rights of racial minorities. Their purpose is to legitimize and normalize intolerance and discrimination, paving the way for its ultimate institutionalization.  

Project 2025 does exactly that, establishing this notion of white supremacy as national policy. For Donald Trump and the Republican Party, that’s ultimately what the 2024 election is all about.

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PayPal hopes to boost its growth by starting an ad network [non-paywalled link] juiced with something it already owns: data on its millions of users. From a report: The digital payments company plans to build an ad sales business around the reams of data it generates from tracking the purchases as well as the broader spending behaviors of millions of consumers who use its services, which include the more socially-enabled Venmo app. PayPal has hired Mark Grether, who formerly led Uber's advertising business, to lead the effort as senior vice president and general manager of its newly-created PayPal Ads division. In his new role, he will be responsible for developing new ad formats, overseeing sales and hiring staff to fill out the division, he said. PayPal in January introduced Advanced Offers, its first ad product, which uses AI and the company's data to help merchants target PayPal users with discounts and other personalized promotions. Advanced Offers only charges advertisers when consumers make a purchase. Online marketplaces eBay and Zazzle have begun testing it, according to a PayPal spokesman. But PayPal now aims to sell ads not only to its own customers, but to so-called non-endemic advertisers, or those that don't sell products or services through PayPal. Those companies might use PayPal data to target consumers with ads that could be displayed elsewhere, for instance, on other websites or connected TV sets.

Read more of this story at Slashdot.

Donald Trump is speaking out of both sides of his mouth on abortion.

On the one hand, Trump frequently claims credit for the Supreme Court’s decision eliminating the constitutional right to an abortion — and well he should, since the three Republicans he appointed to the Supreme Court all joined the Court’s 2022 decision permitting abortion bans. As Trump told Fox News last summer, “I did something that no one thought was possible. I got rid of Roe v. Wade.”

At the same time, Trump at least claims that he has no interest in signing new federal legislation banning abortion. When a reporter asked Trump if he would sign such a ban last month, Trump’s answer was an explicit “no.”

Behind the scenes, however, many of Trump’s closest allies tout a plan to ban abortion in all 50 states that doesn’t require any new federal legislation whatsoever. The linchpin of this plan is the Comstock Act, a long-defunct, 1873 law that, among other things, purports to ban “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion” from being mailed or otherwise transported by an “express company” such as UPS or FedEx.

Anyone who violates this law faces up to five years in prison — and the maximum sentence doubles for repeat offenders. Thus, anyone who delivers an abortion medication, or any device used in a surgical abortion, could potentially face such extraordinary sanctions that the transit of such goods would shut down.

Many of the leading proponents of using Comstock to ban all abortions, moreover, are likely to be very influential within a second Trump administration, if such a thing occurs. The Heritage Foundation’s Project 2025, for example, touts enforcing Comstock to ban abortion medication in its 920-page mega-white paper outlining policies for Trump. 

Similarly, Jonathan Mitchell, one of Trump’s personal lawyers and the architect of a Texas law that allows virtually anyone to collect bounties from abortion providers, bragged to the New York Times that “we don’t need a federal ban when we have Comstock on the books.”

There are very strong legal arguments that Comstock cannot actually be used to effectively ban abortion, at least in places where abortion is legal. The law has not been seriously enforced for nearly a century, and a long line of court decisions stretching back to at least 1915 have read the Comstock Act narrowly to prevent it from being used as a general ban on all abortions.

Still, these precedents are only meaningful if the Supreme Court chooses to follow them, and betting on the same justices who overruled Roe to honor previous pro-abortion decisions is always a dangerous bet. It will get even more dangerous if Trump gets to appoint more justices.

And, even if the Court ultimately decided to follow past decisions reading Comstock narrowly, months or years would likely pass between the Trump Justice Department’s decision to file criminal charges under the Comstock Act, and a Supreme Court decision halting that prosecution. In the interim, few, if any, distributors of medications and medical supplies are likely to risk shipping anything that could lead to themselves being prosecuted.

So, while there is a fair amount of uncertainty about whether a second Trump administration could permanently shut down all legal abortions in the United States by enforcing the Comstock Act, it is likely that, at the very least, a Trump Justice Department could shut down abortion care for months or even years while the courts were sorting out what to do with Comstock prosecutions.

So where does the Comstock Act come from?

The Comstock Act is a relic, not just of a more prudish era in American history, but of an age when the sort of individual rights that modern Americans take for granted effectively did not exist.

Much of the law is unconstitutionally vague. It purports to make it a crime to mail “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance,” for “any indecent or immoral purpose.” Comstock and similar laws inspired a century of litigation just to determine what the word “obscene” means, and it’s anyone’s guess which items are “lewd,” “filthy,” or “vile.”

Similarly, the law imposes a strict censorship code, targeting any “writing” that can be used “for any indecent or immoral purpose” — a provision that violates any plausible understanding of the First Amendment right to free speech.

The Comstock Act’s namesake is Anthony Comstock, a 19th-century anti-vice crusader who wielded it and similar state laws against artists, authors, and reproductive health providers as indiscriminately as he wielded it against actual pornographers. Comstock once successfully brought criminal charges against an art gallery owner for selling reproductions of famous nude paintings. He also bragged, after a woman he arrested for selling contraceptive pills died by suicide, that she was the 15th person targeted by one of his investigations to take her own life.

The censorious values that produced the Comstock Act, in other words, are quite alien to most modern-day Americans. The law stems from an era when women could not vote, when reproductive health care was far cruder and less reliable than it is today, and when Congress thought it was a good idea to ban books and fine art.

Would today’s courts actually allow Comstock to be enforced against abortion providers?

A 2022 memo by the Justice Department’s Office of Legal Counsel lays out the very strong case for reading the Comstock Act narrowly. This memo argues that the law does not prohibit mailing or otherwise transporting abortion medications “where the sender lacks the intent that the recipient of the drugs will use them unlawfully.”

Thus, under the current Justice Department’s reading of the law, abortion-related materials may still be shipped to states where abortion is legal. They may also be shipped if the sender is unaware that the recipient intends to use the item for an illegal purpose.

As the memo notes, federal appeals courts have held for more than a century that the Comstock Act should not be read as a general ban on shipping any abortion-related item. In Bours v. United States (1915), for example, the United States Court of Appeals for the Seventh Circuit held that the law must be given a “reasonable construction” to permit physicians to advertise in the mail that they will perform a lifesaving abortion.

Later decisions read the law even more narrowly. One of the seminal court decisions interpreting the Comstock Act, the hilariously named Second Circuit decision in United States v. One Package of Japanese Pessaries (1936), held that the law only applies when someone ships an item intending it to be used for an illegal purpose.

The Comstock Act, One Package concluded, “was not to prevent the importation, sale, or carriage by mail of things which might intelligently be employed by conscientious and competent physicians for the purpose of saving life or promoting the well being of their patients.” Accordingly, the court ruled that the statute must only be read to target “unlawful” activity.

Though the Supreme Court never explicitly embraced the reasoning of Bours or One Package, that’s most likely because the Court’s constitutional decisions rendered the Comstock Act irrelevant for many decades. The Court’s decisions in Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972) established a constitutional right to contraception, thus preventing Comstock from being used to target birth control. And Roe, of course, until very recently prevented the government from banning abortion.

Nevertheless, there are powerful legal arguments supporting the proposition that cases like One Package remain good law today and should prevent nearly any prosecution under the Comstock Act. As the Justice Department notes in its memo, the Postal Service “accepted the courts’ narrowing construction of the Act in administrative rulings, and it informed Congress of the agency’s acceptance of that construction” when Congress amended the law after Griswold to largely remove its provisions targeting contraception.

Ordinarily, when Congress amends a law that has been consistently interpreted in a particular way by the courts, Congress is understood to ratify the courts’ reading of that law. As the Supreme Court held in Texas Department of Housing and Community Affairs v. Inclusive Communities Project (2015), “if a word or phrase has been … given a uniform interpretation by inferior courts … a later version of that act perpetuating the wording is presumed to carry forward that interpretation.”

Many states, meanwhile, apply a doctrine known as “desuetude” to criminal laws that remain on the books, but that haven’t actually been used for a very long time. As the West Virginia Supreme Court said in a 1992 opinion, “a law prohibiting some act that has not given rise to a real prosecution in 20 years is unfair to the one person selectively prosecuted under it.” 

That said, this same West Virginia opinion also warned that the desuetude doctrine does not encompass particularly reprehensible acts — “if no one had been prosecuted under an obscure statute prohibiting ax murders since Lizzie Borden was acquitted, we would still allow prosecution under that statute today” — so even if the US Supreme Court were inclined to embrace this doctrine, the Republican-controlled Court might look upon abortion as morally similar to murder.

Ultimately, in other words, the fate of a Comstock prosecution is not likely to rest upon whether Congress ratified One Package, or on whether there is legal support for the proposition that long-defunct criminal laws cease to function. The Supreme Court is made up of political appointees, some of whom are quite willing to ignore the law to achieve partisan goals, and the only way to definitely shut down Comstock prosecutions is to convince a majority of the justices to do so.

Many Republican judges, meanwhile, have been quite willing to revive long-dead abortion bans now that Roe is no longer around. Just last month, for example, Arizona’s Supreme Court reinstated a Civil War era ban on abortions — although the state legislature quickly moved to repeal that ban. 

All of which is a long way of saying that the current status of the Comstock Act is highly uncertain, and will depend on who sits on the Supreme Court if and when the Justice Department decides to bring a prosecution under this law. And, even in the best-case scenario, if a future Justice Department is willing to do so, the mere threat of a Comstock prosecution is likely to shut down access to abortion pills (and potentially to surgical equipment used to perform abortions) throughout the country.

YouGov surveyed 2,000 adults asking them when was the best and worst decades for things like movies, fashion, and the economy. For the Washington Post’s Department of Data, Andrew Van Dam noted that there wasn’t so much a strong lean towards a certain decade as there was a tendency towards people’s age.

I think people just want to go back to a time when there was less to worry about and more freedom, which was late childhood and early teens for most.

Tags: great, nostalgia, Washington Post, YouGov

A new name has popped up in the chatter about Donald Trump’s potential pick for vice president: Sen. Tom Cotton. He’s reportedly high on the list because of his “experience and the ability to run a disciplined campaign.” As a running mate, the Arkansas senator “would carry relatively little risk of creating unwanted distractions for a presidential campaign already facing multiple legal threats,” according to The New York Times.

But it sure seems risky to put a no-holds barred racist, sexist creep on a debate stage with Vice President Kamala Harris. Cotton traded in his dog whistle for a racist bullhorn years ago, and has made headlines with his outrageous statements and behavior.

Here is a mere sampling of Cotton’s lowlights:

Attacking Ketanji Brown Jackson

During the confirmation hearings for Supreme Court Justice Ketanji Brown Jackson, Cotton teamed up with the other deplorables on the Senate Judiciary Committee to harangue the nominee about everything from QAnon theories to her history as a public defender, attempting to paint her as an adherent of “critical race theory,” as if that’s a bad thing.

Cotton really sunk to the bottom, however, when he all but called Jackson a Nazi sympathizer during a floor speech. “You know, the last Judge Jackson left the Supreme Court to go to Nuremberg and prosecute the case against the Nazis,” he said. “This Judge Jackson might’ve gone there to defend them.”

“Judge Jackson voluntarily represented three terrorists in three cases,” Cotton complained to CNN. “And she called American soldiers war criminals. I have no patience for it.” Jackson, of course, did not call U.S. troops war criminals.

Those were the accusations that prompted Democratic National Committee Chair Jaime Harrison to call Cotton the “lowest of the low” and a “little maggot-infested man.”

Attacking the first Muslim American appeals court nominee

Cotton’s recent bigoted attacks on Adeel A. Mangi, the first-ever Muslim American federal appeals court nominee, also made headlines when he subjected the Pakistani-born attorney to a barrage of Islamophobic questions about the Oct. 7 Hamas attack on Israel, al-Qaida’s 9/11 attack on the World Trade Center, policy issues regarding the Israeli occupation of Palestinian territories, and antisemitism in general.

Cotton bragged about his harassment of Mangi on X (formerly Twitter), crowing about his “gotcha” question trying to paint Mangi as antisemitic. Which is ironic, given Cotton’s previous antisemitic tweet history.

Blocking nominees of color

Cotton has a history of opposing Democratic presidents’ Black and brown nominees. From 2014 through 2016, Cotton blocked President Barack Obama’s friend and nominee Cassandra Butts—a Black woman—from an ambassador job. Why? When Butts met with him about his block, she told The New York Times’ Frank Bruni, Cotton admitted it was because “he knew that she was a close friend of Obama’s … and that blocking her was a way to inflict special pain on the president.” Butts died of cancer more than 800 days after her nomination.

Smearing a Singapore national

The senator proved himself an equal opportunity bigot in a recent Senate hearing on child safety and social media, repeatedly attacking TikTok CEO Shou Zi Chew—a Singapore national—about his supposed personal connections to “the Chinese Communist Party.” Chew repeatedly denied Cotton’s obnoxious assertions, reiterating again and again, “I served my nation of Singapore.”

That didn’t stop Cotton from running to Fox News to smear Chew. “Singapore, unfortunately, is one of the places in the world that has the highest degree of infiltration and influence by the Chinese Communist Party,” he said. “So, Mr. Chew has a lot to answer for, for what his app is doing in America and why it’s doing it.”

Defending slavery

Of course, Cotton’s racist theatrics haven’t been confined to Senate hearings. He authored legislation in 2020 to ban public schools from using a curriculum based on The New York Times’ 1619 Project, which dissected slavery’s impact on our country’s founding. He justified his bill by calling The 1619 Project “left-wing propaganda” and revisionist history at its worst.”

Cotton added that children should instead be taught that slavery “was the necessary evil upon which the union was built.”

National security sabotoge

When he wasn’t harassing people of color during hearings, Cotton also dabbled in national security sabotage, interfering in Obama’s negotiations with Iran on their nuclear capabilities. Cotton spearheaded a letter from GOP senators to Iranian leaders telling them that even if they came to an agreement with the U.S., future administrations and/or Congress could renege on it. 

That infamous New York Times op-ed

And don’t forget Cotton’s gross New York Times op-ed titled “Send In The Troops,” which called for Donald Trump to invoke the Insurrection Act and use “an overwhelming show of force” against protesters who took to the streets nationwide in the wake of George Floyd’s murder at the hands of police. The column incited fierce backlash, which led to backpedaling from The New York Times and the opinion page editor’s resignation.

None of this will diminish Cotton’s prospects with Trump, who likes him because he’s a smart guy with an elite education. Also, he’s a reliable sycophant.

Cotton has refused to condemn Trump’s love of Vladimir Putin, and has bragged about how he ignored the evidence and arguments in Trump’s first impeachment. 

“My aides delivered a steady flow of papers and photocopied books, hidden underneath a fancy cover sheet labeled ‘Supplementary Impeachment Materials’, so nosy reporters sitting above us in the Senate gallery couldn’t see what I was reading,” Cotton wrote in his 2022 memoir.

Everything about Cotton appeals to Trump—and everything about him will revolt voters.

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We're heading across the pond for this week's episode of "The Downballot" after the UK just announced it would hold snap elections—on July 4, no less. Co-host David Beard gives us Yanks a full run-down, including how the elections will work, what the polls are predicting, and what Labour plans to do if it finally ends 14 years of Conservative rule. We also take detours into Scotland and Rwanda (believe it or not) and bear down on a small far-right party that could cost the Tories dearly.

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Gov. Ron DeSantis has added a new layer of irony to his crusade against diversity in Florida. As part of his “Freedom Summer” initiative, he’s requiring bridges in the Sunshine State to only use red, white, and blue lights from Memorial Day through Labor Day. 

First announced by Florida Director of Transportation Jared Perdue,  the requirement prevents cities from lighting up bridges to celebrate holidays like Juneteenth or Pride Month. 

“Thanks to the leadership of Gov. DeSantis, Florida continues to be the freest state in the nation,” Perdue said. 

The move seems to be a clear attack on the LGBTQ+ community and the rainbow colors typically used to celebrate Pride Month—a favorite scapegoat for the anti-woke troll governor. DeSantis infamously signed the discriminatory “Don’t Say Gay” bill into law in March 2022. 

The bill’s purpose was to prohibit “classroom discussion about sexual orientation or gender identity in certain grade levels.” The vagueness puts educators at risk of punishment if they even happen to mention that they are in a same-sex marriage, among other things.

This is not the first time DeSantis and the state’s department of transportation have tried to squash colorful lighting schemes on the state’s bridges. Back in 2020, the department of transportation denied St. Petersburg’s request to light up the Sunshine Skyway Bridge for Pride Month. Public outrage led to a reversal of that decision in 2021.

Carlos Guillermo Smith, Equality Florida’s senior policy adviser, told The Washington Post that “the bridge lights were about celebrating diversity and inclusion, which will continue to happen in our communities.” 

“LGBTQ Floridians will proudly raise our flags even higher and our lights will only shine brighter in the darkness they’ve created,” he said.

“Pride is the prime example of what patriotism is, the release of government tyranny,” Byron Green-Calisch, president of St. Pete Pride, told the Tampa Bay Times. “To have a place to live free, where every man and woman is created equal and imbued with life, liberty, and the pursuit of happiness. When I say I’m patriotic, that’s what I mean.”

Cindy Noble, president of Jacksonville’s Parents, Families, and Friends of Lesbians and Gays, told Florida’s NBC affiliate, “It’s very disheartening because they did this a couple years ago, and here we are again and it’s not just the group that we represent, this also affects people who celebrate Juneteenth, violence against women’s day, Gun Violence Prevention Day. It's affecting a bunch of groups with important causes.” 

Jacksonville’s Acosta Bridge has historically been lit up to celebrate various holidays and causes, including gun safety awareness and the city’s minor league baseball team, the Jacksonville Jumbo Shrimp. 

Ever the troll, DeSantis seems to be riffing off of the “Freedom Summer” of 1964, when civil rights activists banded together in a massive effort to register southern Black Americans to vote.

Like many Republicans, Donald Trump has tried to sidestep the issue of abortion and reproductive rights. But he stumbled during an interview with a CBS affiliate in Pittsburgh this week, promising an “interesting” new policy that would let states restrict contraception..

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Quick thankyou to patreon subscriber/friend Dave Luebke for making this joke more legible.

Today's News:

The Supreme Court handed down a 6-3 decision along party lines on Thursday, which represented its fullest endorsement of partisan gerrymandering to date. 

In the past, legal restrictions on racial gerrymandering — maps drawn to minimize the voting power of a particular racial group, rather than the power of a political party — had the side effect of also limiting attempts to draw maps that benefitted one party or another. While the Court largely tolerated gerrymanders that were designed to lock one party into power, those maps sometimes failed because they also targeted racial minorities.

Justice Samuel Alito’s opinion in Alexander v. South Carolina State Conference of the NAACP, however, is written explicitly to permit political parties to draw rigged maps, even when those maps maximize the power of white voters and minimize the power of voters of color. Indeed, Alito says that one of the purposes of his opinion is to prevent litigants from “repackag[ing] a partisan-gerrymandering claim as a racial-gerrymandering claim by exploiting the tight link between race and political preference.”

Along the way, Alito’s opinion gives the Court’s explicit blessing to maps that are drawn for the very purpose of maximizing one political party’s power. In the very first paragraph of his Alexander opinion, Alito states that “as far as the Federal Constitution is concerned, a legislature may pursue partisan ends when it engages in redistricting.”

This is a significant statement, as it endorses a practice — partisan gerrymandering — that the Court has previously treated as unseemly. The Court’s most significant previous opinion on partisan gerrymandering, Rucho v. Common Cause (2019), held that federal courts lack jurisdiction to hear cases challenging partisan maps, but it stopped short of saying that such maps are actually permissible under the Constitution. 

Rucho even declared that partisan gerrymandering “leads to results that reasonably seem unjust” and called it “incompatible with democratic principles.” The Court just concluded that the solution to this anti-democratic practice is “beyond the reach of the federal courts.”

Alexander, by contrast, contains none of these caveats. Rigged maps now enjoy the Supreme Court’s unambiguous support.

On top of all of this, Alexander achieves another one of Alito’s longtime goals. Alito frequently disdains any allegation that a white lawmaker might have been motivated by racism, and he’s long sought to write a presumption of white racial innocence into the law. His dismissive attitude toward any allegation that racism might exist in American government is on full display in his opinion. “When a federal court finds that race drove a legislature’s districting decisions, it is declaring that the legislature engaged in ‘offensive and demeaning conduct,’” Alito writes, before proclaiming that “we should not be quick to hurl such accusations at the political branches.”

So Alexander is a very significant decision, and a very significant loss for proponents of fair legislative maps. The case is likely to cause partisan gerrymandering to proliferate in the United States even more than it already has.

The big question in Alexander: What happens when a legislature engages in both racial and partisan gerrymandering?

For many years prior to Rucho, the Supreme Court at least held open the possibility that it might strike down maps drawn to benefit one political party or the other. Rucho, which, like Alexander, was decided along party lines with the Court’s Republicans in the majority, cut off any possibility that a partisan gerrymandering case could move forward in federal court.

Yet while the Court no longer allows challenges to partisan gerrymanders, it has long allowed civil rights plaintiffs to challenge racial gerrymanders: maps drawn to increase the power of voters of one race, or to diminish the power of voters of a different race.

The South Carolina map at issue in Alexander, however, was both a partisan gerrymander and a racial gerrymander. 

In 2018, former Rep. Joe Cunningham, a Democrat, won a narrow victory in South Carolina’s First Congressional District. In 2020, he got over 49 percent of the vote but lost that seat to Republican Rep. Nancy Mace.

Everyone, including Alito, acknowledges that South Carolina’s Republican legislature redrew its congressional maps after the 2020 census to shore up Republican control of the First District. The lower court that heard this case determined, however, that the legislature did so by using race as a proxy to identify voters who were likely to vote for Democrats.

In 2020, 90 percent of Black voters in South Carolina voted for President Joe Biden, so mapmakers knew that if they moved large numbers of Black voters out of the First District, that would make the district more Republican. And so the lower court found that South Carolina’s mapmakers chopped up Charleston County, including many white voters from that county in the First District, while excluding nearly 80 percent of Charleston’s Black population.

Before Alexander, using race in this way was illegal. The Supreme Court held in Cooper v. Harris (2017) that “the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics.”

Though Alito’s Alexander opinion does not explicitly overrule this holding from Cooper, it effectively achieves that goal. As Justice Elena Kagan writes in dissent, Alito’s latest opinion closely tracks his dissent in Cooper. “Today, for all practical purposes,” Kagan writes, “the Cooper dissent becomes the law.”

Alito writes a strong presumption of white racial innocence into the law

Much of the case turns on a factual dispute about whether South Carolina Republicans actually did use race to identify which voters to move out of the First District. Alito’s opinion argues that the lower court reached the wrong factual conclusion when it determined that they did; Kagan’s opinion takes the opposite position.

Ordinarily, appellate courts are not supposed to second-guess a trial court’s factual findings. Trial judges hear witness testimony and develop the intimate familiarity with a case that comes from hearing both parties’ full presentation of their factual arguments; the Supreme Court does not.

As the Supreme Court held in Cooper, a lower court’s “findings of fact — most notably, as to whether racial considerations predominated in drawing district lines — are subject to review only for clear error.”

Alito’s Alexander opinion pays lip service to this clear error standard, but it effectively eliminates it in redistricting cases. The new rule is that state lawmakers enjoy a “presumption of legislative good faith” when they are accused of racial gerrymandering. 

Alito writes that “nothing rules out the possibility” that movement of Black voters out of the First District “was simply a side effect of the legislature’s partisan goal.” And given the presumption that legislatures can do what they want, “that possibility is dispositive.”

Later in his opinion, Alito goes even further. The lower court, he claims, “critically erred by failing to draw an adverse inference against the Challengers for not providing a substitute map that shows how the State ‘could have achieved its legitimate political objectives’ in District 1 while producing ‘significantly greater racial balance.’”

What Alito is saying here is that, when a state draws a partisan gerrymander, anyone who wants to challenge it as an illegal racial gerrymander should show that there is some way to draw more racially equitable maps that still achieve the same partisan goals. And if the challengers can’t do that, courts generally must rule against those challengers.

So Alexander is a significant victory for gerrymandering, for lawmakers who wish to use race to draw legislative districts, and for Alito’s Republican Party.

Google’s shift toward using AI to generate a written answer to user searches instead of providing a list of links ranked algorithmically by relevance was inevitable. Before AI Overview — introduced last week for US users — Google had Knowledge Panels, those information boxes that appear toward the top of some searches, incentivizing users to get their answers directly from Google, rather than clicking through to a result. 

AI Overview summarizes search results for a portion of queries, right at the top of the page. The results draw from multiple sources, which are cited in a drop-down gallery under the summary. As with any AI-generated response, these answers vary in quality and reliability. 

Overview has told users to change their blinker fluid — which does not exist — seemingly because it picked up on joke responses from forums where users seek car advice from their peers. In a test I ran on Wednesday, Google was able to correctly generate instructions for doing a pushup, drawing heavily from the instructions in a New York Times article. Less than a week after launching this feature, Google announced that they are trying out ways to incorporate ads into their generative responses. 

I’ve been writing about Bad Stuff online for years now, so it’s not a huge surprise that, upon gaining access to AI Overview, I started googling a bunch of things that might cause the generative search tool to pull from unreliable sources. The results were mixed, and they seemed to rely a lot on the exact phrasing of my question. 

When I typed in queries asking for information on two different people who are widely associated with dubious natural “cures” for cancer, I received one generated answer that simply repeated the claims of this person uncritically. For the other name, the Google engine declined to create generative responses. 

Results on basic first aid queries — such as how to clean a wound — pulled from reliable sources to generate an answer when I tried it. Queries about “detoxes” repeated unproven claims and were missing important context. 

But rather than try to get a handle on how reliable these results are overall, there’s another question to ask here: If Google’s AI Overview gets something wrong, who is responsible if that answer ends up hurting someone? 

Who’s responsible for AI?

The answer to that question may not be simple, according to Samir Jain, the vice president of policy at the Center for Democracy and Technology. Section 230 of the 1996 Communications Decency Act largely protects companies like Google from liability over the third-party content posted on its platforms because Google is not treated as a publisher of the information it hosts.

It’s “less clear” how the law would apply to AI-generated search answers, Jain said. AI Overview makes Section 230 protections a little messier because it’s harder to tell whether the content was created by Google or simply surfaced by it. 

“If you have an AI overview that contains a hallucination,  it’s a little difficult to see how that hallucination wouldn’t have at least in part been created or developed by Google,” Jain said. But a hallucination is different from surfacing bad information. If Google’s AI Overview quotes a third party that is itself providing inaccurate information, the protections would still likely apply.  

A bunch of other scenarios are stuck in a gray area for now: Google’s generated answers are drawing from third parties but not necessarily directly quoting them. So is that original content, or is it more like the snippets that appear under search results? 

While generative search tools like AI Overview represent new territory in terms of Section 230 protections, the risks are not hypothetical. Apps that say they can use AI to identify mushrooms for would-be foragers are already available in app stores, despite evidence that these tools aren’t super accurate. Even in Google’s demo of their new video search, a factual error was generated, as The Verge noticed.  

Eating the source code of the internet

There’s another question here beyond when Section 230 may or may not apply to AI-generated answers: the incentives that AI Overview does or does not contain for the creation of reliable information in the first place. AI Overview relies on the web continuing to contain plenty of researched, factual information. But the tool also seems to make it harder for users to click through to those sources. 

“Our main concern is about the potential impact on human motivation,” Jacob Rogers, associate general counsel at the Wikimedia Foundation, said in an email. “Generative AI tools must include recognition and reciprocity for the human contributions that they are built on, through clear and consistent attribution.”  

The Wikimedia Foundation hasn’t seen a major drop in traffic to Wikipedia or other Wikimedia projects as a direct result of AI chatbots and tools to date, but Rogers said that the foundation was monitoring the situation. Google has, in the past, relied on Wikipedia to populate its Knowledge Panels, and draws from its work to provide fact-check pop-up boxes on, for instance, YouTube videos on controversial topics.   

There’s a central tension here that’s worth watching as this technology becomes more prevalent. Google has an incentive to present its AI-generated answers as authoritative. Otherwise, why would you use them? 

“On the other hand,” Jain said, “particularly in sensitive areas like health, it will probably want to have some kind of disclaimer or at least some cautionary language.” 

Google’s AI Overview contains a small note at the bottom of each result clarifying that it is an experimental tool. And, based on my unscientific poking around, I’d guess that Google has opted for now to avoid generating answers on some controversial topics.  

The Overview will, with some tweaking, generate a response to questions about its own potential liability. After a couple dead ends, I asked Google, “Is Google a publisher.” 

“Google is not a publisher because it doesn’t create content,” begins the reply. I copied that sentence and pasted it into another search, surrounded by quotes. The search engine found 0 results for the exact phrase.

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Exactly how many “Stop the Steal” flags does Supreme Court Justice Samuel Alito need to fly over one of his multiple homes before it’s a problem?

Is two enough?

The first one—an upside-down U.S. flag that flew over his house in Alexandria, Virginia, just weeks after the Jan. 6 riot at the Capitol—was reported by The New York Times a week ago. He blamed that flag on his wife, claiming he had “no involvement whatsoever” and that his wife was only signaling her distress and support of the movement to overturn an election because a neighbor’s anti-Trump signs made her mad.

But it turns out that’s not the only freak flag the Alito family has flown. According to a second report by the Times published Wednesday, the Alitos also had an “Appeal to Heaven” flag flapping over their New Jersey beach house in the summer of 2023.

What is the Appeal to Heaven flag, you might ask? While it was first created during the American Revolution, in more recent years it has been embraced by far-right religious fanatics, led by activist Dutch Sheets. These zealots see the flag as a symbol of what religion scholar Matthew Taylor described to the Times as “a theological vision of what the United States should be and how it should be governed.” 

And how should the United States be governed? Why, according to far-right Christian theology, of course, as these evangelists understand it. Which is why they’ve worked to get Republican leaders to embrace and promote the flag, including House Speaker Mike Johnson, who displays the flag outside his office.

This Sheets fellow, according to the Times, has particularly focused on the Supreme Court. You know, the same place where the aforementioned Alito works. Because Alito in particular is exactly the kind of guy who would fly the Appeal to Heaven flag, in Sheets’ estimation.

Turns out, Sheets was right.

As if this flag were not problematic enough, it’s more recently also come to represent support for Donald Trump’s attempted coup. Like the upside-down American flag, rioters also carried this flag at their insurrection, so it stands for not only the campaign to turn America into a far-right Christian nation but also the campaign to overthrow an election—and democracy itself.

That is the flag that was hoisted above the Alito beach house. The Supreme Court justice—who is currently deciding whether to grant immunity to Trump for his insurrection—has yet to offer an explanation for flying it.

According to the Times, “Alito declined to respond to questions about the beach house flag, including what it was intended to convey and how it comported with his obligations as a justice.”

At least this time he’s not blaming his wife.

Campaign Action

Nikki Haley had a nice run as the anti-Trump candidate in the Republican primary. She was so good at it, she continued to get a big chunk of votes even after she dropped out. And she got so much praise for refusing to bow to the MAGA cult.

But that’s all over now because Haley has joined the bend-the-knee club and endorsed the candidate she called “unstable and unhinged.”

During a conversation at the Hudson Institute on Wednesday, Haley claimed that despite everything she said about Trump, President Joe Biden is somehow worse.

“So I will be voting for Trump,” she said. “Having said that, I stand by what I said in my suspension speech. Trump would be smart to reach out to the millions of people who voted for me and continue to support me and not assume that they’re just going to be with him. And I genuinely hope he does that.”

Well, let’s check in on whether Trump has given even half a damn about Haley’s plea that he reach out to her supporters. After Haley suspended her campaign in March, Trump declared that he would unite the party—somehow.

“We want to have unity, and we’re going to have unity, and it’s going to happen very quickly,” he said. This was just a few days after he said that the MAGA movement comprises “96%, maybe 100%” of the Republican Party. “We’re getting rid of the Romneys of the world,” he added.

Since announcing that the party would quickly unify behind him, those anti-Trump voters have continued to show up and cast their votes for Haley—the person Trump not-so-affectionately nicknamed “birdbrain”—in a decisive middle finger to Trump. So much for unity.

And so much for Haley’s concerns about Trump.

"He's gotten more unstable and unhinged. He spends more time in courtrooms than he does on the campaign trail, he refuses to debate, he's completely distracted, and everything is about him,” she said in February. “He's so obsessed with his demons from the past, he can't focus on delivering the future Americans deserve.”

None of that has changed, of course. If anything, he’s gotten worse, spending the last several weeks in a Manhattan courtroom and then spouting his grievances on social media.

So what’s changed? Maybe it's just Haley's concerns for her own political future and a realization—rightly or wrongly—that the only way to have one is to, like the rest of the GOP cult, kiss the ring. The same ring she insisted in February she had no need to smooch.

Campaign Action

On Friday, Vox reported that employees at tech giant OpenAI who wanted to leave the company were confronted with expansive and highly restrictive exit documents. If they refused to sign in relatively short order, they were reportedly threatened with the loss of their vested equity in the company — a severe provision that’s fairly uncommon in Silicon Valley. The policy had the effect of forcing ex-employees to choose between giving up what could be millions of dollars they had already earned or agreeing not to criticize the company, with no end date.

According to sources inside the company, the news caused a firestorm within OpenAI, a private company that is currently valued at some $80 billion. As with many Silicon Valley startups, employees at OpenAI often get the majority of their overall expected compensation in the form of equity. They tend to assume that once it has “vested,” according to the schedule laid out in their contract, it is theirs and cannot be taken back, any more than a company would claw back salary that has been paid out.

A day after the Vox piece, CEO Sam Altman posted an apology, saying: 

we have never clawed back anyone’s vested equity, nor will we do that if people do not sign a separation agreement (or don’t agree to a non-disparagement agreement). vested equity is vested equity, full stop.

there was a provision about potential equity cancellation in our previous exit docs; although we never clawed anything back, it should never have been something we had in any documents or communication. this is on me and one of the few times i’ve been genuinely embarrassed running openai; i did not know this was happening and i should have.

Tl;dr: I didn’t know we had provisions that threatened equity, and I promise we won’t do that anymore.

That apology has been echoed in internal communications by some members of OpenAI’s executive team. In a message to employees that was leaked to Vox, OpenAI chief strategy officer Jason Kwon acknowledged that the provision had been in place since 2019 but that “The team did catch this ~month ago. The fact that it went this long before the catch is on me.”

But there’s a problem with those apologies from company leadership. Company documents obtained by Vox with signatures from Altman and Kwon complicate their claim that the clawback provisions were something they hadn’t known about. A separation letter on the termination documents, which you can read embedded below, says in plain language, “If you have any vested Units … you are required to sign a release of claims agreement within 60 days in order to retain such Units.” It is signed by Kwon, along with OpenAI VP of people Diane Yoon (who departed OpenAI recently). The secret ultra-restrictive NDA, signed for only the “consideration” of already vested equity, is signed by COO Brad Lightcap.

Meanwhile, according to documents provided to Vox by ex-employees, the incorporation documents for the holding company that handles equity in OpenAI contains multiple passages with language that gives the company near-arbitrary authority to claw back equity from former employees or — just as importantly — block them from selling it. 

Those incorporation documents were signed on April 10, 2023, by Sam Altman in his capacity as CEO of OpenAI. 

Vox asked OpenAI if they could provide context on whether and how these clauses made it into the incorporation documents without Altman’s knowledge. While that question was not directly answered, Kwon said in a statement to Vox, “We are sorry for the distress this has caused great people who have worked hard for us. We have been working to fix this as quickly as possible. We will work even harder to be better.” 

The seeming contradiction between OpenAI leadership’s recent statements and these documents has ramifications that go far beyond money. OpenAI is arguably the most influential, and certainly the most visible, company in artificial intelligence today, one that has the stated ambition to “ensure that artificial general intelligence benefits all of humanity.” 

A little more than a week ago, OpenAI executives were on stage introducing the company’s latest model, ChatGPT-4o, which they were proud to note was capable of carrying out highly realistic conversations with users (with a voice, as it turned out, that was a bit too close to that of actress Scarlett Johansson).

But bringing artificial general intelligence to the world is a role that demands enormous public trust and serious transparency. If OpenAI’s own employees haven’t felt free to voice criticism without risking financial retribution, how can the company and its CEO possibly be worthy of that trust?

(Vox reviewed many documents in the course of reporting this story. Key documents of public interest are reproduced below.)

High-pressure tactics at OpenAI

Throughout the hundreds of pages of documents leaked to Vox, a pattern emerges. Getting ex-employees to sign the ultra-restrictive nondisparagement and nondisclosure agreement involved threatening to cancel their equity — but it also involved much more. 

In two cases Vox reviewed, the lengthy, complex termination documents OpenAI sent out expired after seven days. That meant the former employees had a week to decide whether to accept OpenAI’s muzzle or risk forfeiting what could be millions of dollars — a tight timeline for a decision of that magnitude, and one that left little time to find outside counsel. 

When ex-employees asked for more time to seek legal aid and review the documents, they faced significant pushback from OpenAI. “The General Release and Separation Agreement requires your signature within 7 days,” a representative told one employee in an email this spring when the employee asked for another week to review the complex documents. 

“We want to make sure you understand that if you don’t sign, it could impact your equity. That’s true for everyone, and we’re just doing things by the book,” an OpenAI representative emailed a second employee who had asked for two more weeks to review the agreement. 

(I spoke with four experts in employment and labor law for perspective on whether the termination agreement and surrounding conduct was indeed “by the book” or standard in the industry. “For a company to threaten to claw back already-vested equity is egregious and unusual,” California employment law attorney Chambord Benton-Hayes told me in an emailed statement.)

Most ex-employees folded under the pressure. For those who persisted, the company pulled out another tool in what one former employee called the “legal retaliation toolbox” he encountered on leaving the company. When he declined to sign the first termination agreement sent to him and sought legal counsel, the company changed tactics. Rather than saying they could cancel his equity if he refused to sign the agreement, they said he could be prevented from selling his equity. 

The later documents the company sent him, which Vox has reviewed, say, “If you have any vested Units and you do not sign the exit documents, including the General Release, as required by company policy, it is important to understand that, among other things, you will not be eligible to participate in future tender events or other liquidity opportunities that we may sponsor or facilitate as a private company.” In other words, sign or give up the chance to sell your equity.

How OpenAI played hardball 

To make sense of that — and to see why it makes OpenAI’s recent apology so hollow — you need to understand what equity at OpenAI means. 

In a publicly traded company, like Google, equity just means shares of stock. Employees are paid partially in their salary and partially in Google stock, which they can hold or sell on the stock market like any shareholder.

In a private company like OpenAI, employees are still awarded ownership shares of the company (or, more frequently, options to purchase ownership shares of the company at low prices) but have to wait until an opportunity to sell those shares — which may not come for years. Large private companies sometimes do “tender offers” where employees and former employees can sell their equity. OpenAI hosts tender offers sometimes, but the exact details are a tightly kept secret. 

By announcing that someone who doesn’t sign the restrictive agreement is locked out of all future tender offers, OpenAI effectively makes that equity, valued at millions of dollars, conditional on the employee signing the agreement — while still truthfully saying that they technically haven’t clawed back anyone’s vested equity, as Altman claimed in his tweet on May 18. 

Vox reached out to OpenAI to clarify whether OpenAI has used or plans to use this tactic to cut former employees off from equity. An OpenAI spokesperson said, “Historically, former employees have been eligible to sell at the same price regardless of where they work; we don’t expect that to change.” It is not clear who authorized telling a former employee that he would be excluded from all future tender offers unless he signed.

And the ex-employees I spoke with were nervous that, whatever public reassurances the company may be making, the incorporation documents generally gave OpenAI many avenues for legal retaliation, making it less reassuring for the company to retreat from any specific one. 

In addition to clauses stating that vested equity will vanish if a former employee does not sign a general release within 60 days, the incorporation documents also contain clauses stating that, “at the sole and absolute discretion of the company,” any employee who is terminated by the company can have their vested equity holdings reduced to zero. There are also clauses stating that the company has absolute discretion over which employees are allowed to participate in tender offers in which their equity is sold.

“[Those] documents are supposed to be putting the mission of building safe and beneficial AGI first but instead they set up multiple ways to retaliate against departing employees who speak in any way that criticizes the company,” a source close to the company told me. 

These documents are signed by Sam Altman. OpenAI did not respond to a question about whether there was a contradiction between Altman’s public statements that he was unaware company documents included language about clawing back equity and the presence of these clauses in incorporation documents with his signature on them.

Why it matters

OpenAI has long positioned itself as a company that ought to be held to a higher standard. It claimed that its unique corporate structure — which involved a for-profit company governed by a nonprofit — would let them bring transformative technology to the world and ensure it “benefits all of humanity,” as the company mission statement reads, and not just the shareholders. OpenAI’s senior leadership has talked at length about their responsibilities for accountability, transparency, and democratic input, with Altman himself telling Congress last year that “my worst fears are that we — the field, the technology, the industry — cause significant harm to the world.”

But for all the high-minded idealism, OpenAI has also had its share of scandals. In November, Altman was fired by the OpenAI board, which said in a statement only that Altman “was not consistently candid with the board.” The clumsy firing provoked an immediate outcry from employees, especially as the board failed to provide any more detailed explanation of what had justified firing the CEO of a world-leading tech company. 

Altman soon arranged a deal to effectively take the company and most of its employees with him to Microsoft, before he was ultimately reinstated, with much of the board then resigning. 

At the time, the board’s language — “not consistently candid” — was puzzling. (Has anyone ever met a CEO who is consistently candid?) But six months on, it seems like we might be starting to see publicly some of the issues that drove the unexpected board conflagration. 

OpenAI can still set things right, and may now be getting started on the long and difficult process of doing so. They have taken some first, necessary steps. Altman’s initial statement was criticized for doing too little to make things right for former employees, but in an emailed statement, OpenAI told me that “we are identifying and reaching out to former employees who signed a standard exit agreement to make it clear that OpenAI has not and will not cancel their vested equity and releases them from nondisparagement obligations” — which goes much further toward fixing their mistake.

In a fuller statement, OpenAI said:

“As we shared with employees today, we are making important updates to our departure process. We have not and never will take away vested equity, even when people didn’t sign the departure documents. We’re removing nondisparagement clauses from our standard departure paperwork, and we’re releasing former employees from existing nondisparagement obligations unless the nondisparagement provision was mutual. We’ll communicate this message to former employees. We’re incredibly sorry that we’re only changing this language now; it doesn’t reflect our values or the company we want to be.”

I think that represents a huge step forward over the company’s initial May 18 apology; it is specific about the steps OpenAI is taking and involves proactively reaching out to former employees. But I think OpenAI’s work here is far from done. Former employees felt the company put them under pressure from multiple angles, and OpenAI has not yet committed to changing all of those — specifically, they should commit to not excluding anyone from selling their equity on the basis of not signing a document or criticizing Open AI. 

And, to fully grapple with the situation, OpenAI needs to grapple with responsibility. It’s hard to understand how the executive team could have signed documents that laid out avenues to claw back equity from former employees, as well as separation letters which threatened to do the same, without realizing this situation was happening. In order to set this issue right, OpenAI must first acknowledge how extensive it was.

Check out the documents supporting this reporting below:

Document support by Izzie Ramirez.

Update, May 22, 7:32 pm ET: This story has been updated to include a fuller statement from OpenAI.

Update, May 23, 4:30 pm ET: This story has been updated to include three versions of offboarding documents.

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The Consumer Financial Protection Bureau declared on Wednesday that customers of the burgeoning buy now, pay later industry have the same federal protections as users of credit cards. From a report: The agency unveiled what it called an "interpretive rule" that deemed BNPL lenders essentially the same as traditional credit card providers under the decades-old Truth in Lending Act. That means the industry -- currently dominated by fintech firms like Affirm, Klarna and PayPal -- must make refunds for returned products or canceled services, must investigate merchant disputes and pause payments during those probes, and must provide bills with fee disclosures. "Regardless of whether a shopper swipes a credit card or uses Buy Now, Pay Later, they are entitled to important consumer protections under long-standing laws and regulations already on the books," CFPB Director Rohit Chopra said in a release. The CFPB, which last week was handed a crucial victory by the Supreme Court, has pushed hard against the U.S. financial industry, issuing rules that slashed credit card late fees and overdraft penalties. The agency, formed in the aftermath of the 2008 financial crisis, began investigating the BNPL industry in late 2021.

Read more of this story at Slashdot.

Microsoft's Windows Recall feature is attracting controversy before even venturing out of preview. From a report: The principle is simple. Windows takes a snapshot of a user's active screen every few seconds and dumps it to disk. The user can then scroll through the snapshots and, when something is selected, the user is given options to interact with the content. Mozilla's Chief Product Officer, Steve Teixeira, told The Register: "Mozilla is concerned about Windows Recall. From a browser perspective, some data should be saved, and some shouldn't. Recall stores not just browser history, but also data that users type into the browser with only very coarse control over what gets stored. While the data is stored in encrypted format, this stored data represents a new vector of attack for cybercriminals and a new privacy worry for shared computers. "Microsoft is also once again playing gatekeeper and picking which browsers get to win and lose on Windows -- favoring, of course, Microsoft Edge. Microsoft's Edge allows users to block specific websites and private browsing activity from being seen by Recall. Other Chromium-based browsers can filter out private browsing activity but lose the ability to block sensitive websites (such as financial sites) from Recall. "Right now, there's no documentation on how a non-Chromium based, third-party browser, such as Firefox, can protect user privacy from Recall. Microsoft did not engage our cooperation on Recall, but we would have loved for that to be the case, which would have enabled us to partner on giving users true agency over their privacy, regardless of the browser they choose."

Read more of this story at Slashdot.

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Donald Trump's theft of classified documents was worse than anyone knew, as additional documents were released Tuesday showing that, months after the FBI search of Mar-a-Lago, documents were found in Trump’s bedroom and classified material was allegedly copied to a laptop for Trump’s Save America PAC. 

Trump’s legal team is currently attempting to have all of the evidence thrown out, claiming that the search was unconstitutional and “illegal.” Judge Aileen Cannon is set to hold a hearing on Wednesday on a defense motion to completely dismiss the charges against Trump.

How does The New York Times cover this—new evidence in what is arguably the biggest presidential scandal in history and a Trump-appointed judge holding the case in her hands—on its front page? It doesn’t.

The Times does have a story on the documents, but it's hidden inside under the headline "Trump Lawyers Accuse Prosecutors of Misconduct in Documents Case." Like the headline, the first paragraph of the story focuses on how federal prosecutors are fighting “allegations of misconduct and politicization in how the government handled the investigation that led to an indictment accusing Mr. Trump of illegally holding on to classified documents after he left office.”

The whole focus of the article is on how Trump’s attorneys are seeking suppression of evidence and dismissal of the case. While there’s mention that Trump’s legal team and federal prosecutors produced “hundreds of pages of documents” related to these unsealed motions, there’s no information about what was actually in those documents.

Contrast this with The Washington Post coverage headlined “Unsealed motions in Trump’s Fla. case suggest new evidence of possible obstruction.” This article does more than announce that supporting documents were released. It even mentions how the documents contain evidence that a Trump employee avoided the view of security cameras when moving boxes of documents.

The Post article also discusses how the FBI search warrant included standard language authorizing the use of deadly force, which Trump is now trying to politicize with claims that President Joe Biden sent the FBI to Mar-a-Lago to assassinate him. 

Better still, contrast The New York Times’ coverage with how it covered the story when former FBI Director James Comey announced that the agency was reopening its investigation into Hillary Clinton’s emails. The day after Comey spoke, every single column of the Times’ front page was devoted to the possibility that a document might appear on a laptop. 

But when it’s discovered that Trump actually did have documents copied onto a laptop that belonged to his PAC? Crickets.

In 2017, Columbia Journalism Review called out the Times for its obsessive coverage of the Clinton email story, pointing out that of the 150 articles that ran on the front page in the final month before the 2016 election, only 10 delved into policy. 

“The various Clinton-related email scandals accounted for more sentences than all of Trump’s scandals combined,” the CJR article concluded.

That included how the Times moved quickly to kill an emerging story about connections between the Trump campaign and Russia on the same day that the front page was devoted to Clinton’s emails.

So far in 2024, the Times has filled its editorial section with stories about Biden’s age, while still keeping most of Trump’s scandals safely buried.

The Times online political section doesn’t give a clue to any of the events around Trump’s classified documents case, though it does provide a nice focus on the campaign of spoiler candidate Robert Kennedy Jr. 

However, readers can locate a story about oil and gas producers turning away from Biden to support Trump. The story covers how oil and gas producers are opening their fat wallets for Trump, bolstering his fundraising. It’s not until the eighth paragraph that it mentions that the big oil and gas fundraiser for Trump’s super PAC came “a month after Mr. Trump hosted energy executives over dinner at Mar-a-Lago, his resort in Florida. He asked them to donate $1 billion to his campaign so that he could retake the White House and dismantle Mr. Biden’s climate regulations, including the pause on permits.”

Is this presented as a story of how Trump solicited and is now collecting on the biggest bribe in political history? No. Those two sentences are the only mention of Trump’s billion-dollar deal. And it ignores how the oil industry favored Trump by a huge margin in past elections.

It’s not as if The New York Times doesn’t cover some Trump scandals. It had daily coverage of Trump’s criminal trial over charges of falsifying classified documents. With the trial happening blocks from its offices, that was a bit hard to avoid. 

And it did dispatch Maggie Haberman, so she was there to hear former Trump fixer Michael Cohen testify that she was one of his go-to choices when he wanted to find someone to write favorable news about Trump.

David Pecker, former publisher of The National Enquirer, disclosed new details during his testimony about the “catch-and-kill” deal that he, Cohen, and Trump worked out to protect Trump’s 2016 run for the White House. But it’s clear that Trump no longer needs that deal.

Congratulations, Mr. Sulzberger. You’re the new David Pecker.

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