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Matthew Cavedon
Charged with the misdemeanor of unlawfully operating a vehicle on federal lands, social media influencer and outdoorsman David Lesh requested a jury trial. The government successfully opposed that request and the case was tried by a US magistrate judge, who convicted Lesh and then imposed the maximum fine of $5,025 and 160 hours of community service.
The district court affirmed, though it noted that but for the Supreme Court’s recognition of a “petty offense exception,” Lesh’s argument that he was constitutionally entitled to be tried by a jury was “not unpersuasive.” The Tenth Circuit likewise affirmed, with two members of the panel noting that the petty offense exception arose in “disregard of the text of Article III and the Sixth Amendment” and cautioning that it may well be “incompatible with the original public understanding of the Constitution.”
The Cato Institute filed an amicus brief urging the Supreme Court to review Lesh’s case and abolish the petty offense exception. The Constitution’s text explicitly commands that the trial of “all” federal crimes be by jury, and it underscores that command by repeating in the Sixth Amendment that “in all criminal prosecutions” the defendant has the right to a public trial by an impartial jury.
The petty offense exception lacks any historical foundation. Eliminating it is not only feasible but vital to the rule of law.
The Emory Law School Supreme Court Advocacy Program (ELSSCAP) assisted the Cato Institute in preparing this amicus brief.
The US Court of Appeals for the Sixth Circuit last week decided that the Federal Communications Commission (FCC) lacked the legal authority to issue so-called ” net neutrality” rules.
While net neutrality sounds appealing, the actual internet experience that we have come to expect requires non-neutrality. In the early days of the internet, packets of information were basically treated alike. This was when the internet was a government-funded communications system that allowed university researchers to communicate with each other.
When the internet started to allow private internet service providers (ISPs) to connect to the government system in the 1990s, the structure of the internet became more complex. Private “backbones” supplemented the original government network, connecting through four network access points. The four access points immediately became congested with traffic, which gave the backbone operators market power over the local ISP providers. To reduce congestion and limit backbone market power, ISPs quickly developed new pathways and connections.
Thus, since the early days of the private internet there have been multiple paths for packets of information to travel. Similar packets have traveled over different pathways at different speeds and have paid differing amounts to do so. These arrangements were not anti-consumer or anti-competitive. They were simply what was required to create redundancy and overcome market power.
Despite this underlying engineering reality, “net neutrality” became a partisan issue. Democrats were in favor and Republicans opposed. And 30 years of legal maneuvering ensued. The Biden administration continued this game of regulatory ping pong by reinstating net neutrality rules in April 2024 that were repealed during the first Trump administration. The court decision blocks the reinstatement.
Net neutrality has captured the imagination of Democratic activists and the public, but its effects on the actual technical and legal evolution of the internet have been rhetorical rather than real. Repeal of the net neutrality rules will not be the death of the internet. It will simply return us to the hands-off regulatory framework that has nurtured the last three decades of the internet revolution.
Mike Johnson promised drastic spending cuts in his House address last Friday. But, as Thomas Massie pointed out, Johnson’s first term as Speaker demonstrates that he and his allies lack the courage needed to see spending cuts through.
In April 2024, President Biden signed an unprecedented law that required TikTok to either “divest” from its parent company ByteDance by January 19, 2025, or cease operations in the United States. Such divestment would likely be infeasible because ByteDance owns much of TikTok’s code and employs many of the engineers who make TikTok run. And even if it were feasible, American TikTok users would lose access to content from outside the country, fundamentally changing the platform.
The law contained an unusual provision requiring that any legal challenges be brought directly in the US Court of Appeals for the DC Circuit, bypassing the federal district courts. Pursuant to that requirement, three suits were brought in the DC Circuit challenging the law, one by TikTok itself and two by various TikTok users.
A three-judge panel of the DC Circuit upheld the law against these challenges, and now the Supreme Court has taken the cases on a fast-track timeline, with oral arguments scheduled for this Friday, January 10 (just nine days before the law’s deadline). Cato has filed an amicus brief urging the court to strike down the law as a First Amendment violation.
In our brief, we address two justifications for the law that were repeatedly invoked by lawmakers: that TikTok is a platform for “propaganda” and that it is a platform for “misinformation” and “disinformation.” As our brief explains, neither of these arguments can justify the law because there is no First Amendment exception for either “propaganda” or false speech.
The TikTok divestment bill is not the first time Congress has enacted a bill infringing on speech rights to combat foreign “propaganda.” In the 1960s, members of Congress used strikingly similar rhetoric to that used by lawmakers today when they passed a similar bill. That 1960s law mandated screening of incoming foreign mail for “Communist political propaganda.” If a government official determined that a piece of mail contained such propaganda, it would only be delivered if its intended recipient promptly returned a form affirmatively requesting its delivery.
The Supreme Court rightly struck down this “Communist propaganda” law in the case Lamont v. Postmaster General (1965). As the court explained, the “Communist propaganda” law was “at war with the ‘uninhibited, robust, and wide-open’ debate and discussion that are contemplated by the First Amendment.” As the court later reaffirmed in Hustler Magazine v. Falwell (1988), “the ultimate good desired is better reached by free trade in ideas … the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
If the government disagrees with speech that it views as harmful “propaganda,” the government can use its own voice to rebut that speech. But the government does not have the power to censor or burden disfavored views. It is up to the people to decide which ideas win out.
Nor can the government justify censorship on the grounds that it is merely fighting falsehoods. In United States v. Alvarez (2012), the Supreme Court struck down a law criminalizing false claims of winning a military medal. Justice Anthony Kennedy explained that “our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.” Instead, “the remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.”
Placing the power to arbitrate the truth in the hands of the government would be dangerous, both because government officials make mistakes and because they can be motivated to suppress disfavored speakers, using falsehoods only as a pretext. Such motivation may well have been behind Congress’s choice to single out TikTok and not address other social media sites with comparable levels of “misinformation.”
As our brief notes, non-content-based concerns over hacking and data-tracking could hypothetically justify government action against a platform. But the government has not proffered public evidence that meets the burden necessary to support this justification either. Our brief urges the Court to subject the law’s supposed justifications to more rigorous scrutiny than did the DC Circuit panel below.
Congress has plainly targeted TikTok because of the viewpoints it carries (or that it is perceived to carry). That is a core First Amendment violation, and the Supreme Court should block the law from taking effect.
Axios reports that the Biden Administration is planning an 11th-hour move to order cigarette manufacturers to reduce the nicotine content in the tobacco cigarettes they market to consumers—possibly by as much as 95 percent. The FDA proposed the rule in 2022, and the Office of Management and Budget cleared the rule proposal on January 3, 2025.
The Food and Drug Administration has not yet issued the rule but may do so within the next two weeks.
Nicotine is the addictive component of tobacco cigarettes, but by itself is relatively harmless. The harm comes from carbon monoxide, a poisonous gas, and tobacco tar that contains carcinogens and other chemicals that harm the lungs and circulatory system. Britain’s Royal Society for Public Health claims nicotine is “no more harmful to health than caffeine.” As I have written here, what differentiates nicotine from caffeine is that it has calming as well as stimulative effects.
Tobacco cigarettes are a type of nicotine delivery system. While some smokers may enjoy the flavor of tobacco and the act of smoking, many primarily smoke for the effects of nicotine.
The rationale behind ordering cigarette makers to reduce the nicotine content of tobacco cigarettes is that it might nudge smokers to abandon smoking. In 2018, FDA researchers reported in the New England Journal of Medicine that they used a simulation model that suggested reducing the nicotine content of tobacco cigarettes by 95 percent could lower the percentage of adult smokers to 1.4 percent by 2100.
Yet one randomized controlled study of the efficacy of reducing nicotine content to such levels found:
In smokers not interested in quitting, reducing the nicotine content in cigarettes over 12 months does not appear to result in extinction of nicotine dependence, assessed by persistently reduced nicotine intake or quitting smoking over the subsequent 12 months.
Some researchers have found that reducing the nicotine content may lead to a compensatory increase in cigarette consumption or increased puff volume to attain the nicotine effect. A team of researchers at the University of Pennsylvania reported in the journal Drug and Alcohol Dependence on a novel “within-subject human laboratory study” hypothesizing “that compensatory smoking, specifically greater total puff volume, would be observed as nicotine levels decreased, thereby supporting behavioral compensation. Further, due to increased total puff volume, we hypothesized increases in CO boost as nicotine levels decreased (i.e. biochemical evidence of compensation).” They found:
As hypothesized, both total puff volume and CO boost per cigarette increased when cigarette nicotine level decreased, although the effect was modest. Subjective ratings of cigarette strength and satisfaction were significantly lower for the lower-nicotine cigarettes.
Yet, other studies, such as this 4‑day study, failed to discern any increase in the number of cigarettes smokers consumed with decreased nicotine levels. Researchers at the University of Minnesota conducted a “secondary analysis of data” from studies where cigarette nicotine content was either gradually or immediately reduced and found:
The results showed that in general, these two approaches led to minimal compensatory smoking…over the course of the experimental period, suggesting that neither of these approaches poses a major safety concern.
Policymakers also aren’t considering that mandating cigarette makers to reduce nicotine will likely stimulate a healthy black market in higher-nicotine cigarettes, benefiting drug cartels and other criminal organizations. Menthol cigarette black markets have arisen in states and countries that have banned them. Ironically, the Biden administration has delayed a decision on a federal menthol cigarette ban, yet seems poised to generate a black market in regular cigarettes.
If policymakers want more people to quit tobacco smoking, they should remove barriers to tobacco harm reduction by increasing access to e‑cigarettes, including flavored ones preferred by smokers wishing to quit, nicotine pouches, and less harmful products like heated tobacco and snus. That way, people can get the nicotine they desire without utilizing the harmful tobacco cigarette delivery system.
The Federal Communications Commission (FCC) has been covertly and overtly regulating media content and media distributors since the agency was created in 1934. Namely, broadcast licenses and media mergers—like transactions involving satellite and Internet access companies—have been contested and litigated. There’s no escaping that media distribution and operation is political, and, ideally, Congress would eliminate some of its unclear media laws.
In the meantime, incoming FCC Chairman Brendan Carr and the other commissioners have some authority to minimize the secret government pressure on media companies and protect the free speech norms that Americans value.
Eliminate the News Distortion Rule and Other Legacy Content Rules for Media
Broadcasters today have largely learned to live with their content restrictions but the FCC should eliminate its legacy content rules. One priority should be to eliminate the news distortion rule. Uncodified and largely overlooked, the FCC rule against news distortion threatens a broadcaster’s ability to renew or transfer its license if the licensee is deemed to have deliberately engaged in news distortion, staging, or slanting. The FCC reaffirmed its commitment to enforce the news distortion rule several times, including in the summer of 2024.
There’s a precedent for refusing to enforce speech-chilling rules. The FCC formulated and enforced the notorious Fairness Doctrine from 1949 until the 1980s. But in 1985, the FCC voted 4–0 to not enforce the rule against a station, in part because of First Amendment concerns. The Fairness Doctrine slowly withered away after being weaponized and enforced for decades.
Stop Coercing Media Companies During Media and Telecom Mergers
Media and telecom companies must get the agency’s “public interest” blessing before a merger can be completed. This requirement for FCC permission and the agency’s vague, multifactor “public interest” standard gives the agency immense power over merging companies. As my friend and former FCC associate general counsel, Randy May, explains:
The Commission merely withholds approval of the merger until the parties come forward to propose conditions which the Commission has telegraphed in closed door negotiations that it would find acceptable to meet whatever public interest concerns that opponents, the FCC, and others have raised.
Through this coercive merger process, the FCC extracts nominally voluntary concessions from firms—including programming decisions and “net neutrality” compliance. In many cases, the FCC is legally barred from codifying or is unwilling to codify these policies through the normal regulatory process. To prevent these secretive negotiations, Chairman Carr should prohibit the agency and its staff from considering content and routine business decisions in its “public interest” determinations when approving telecom and media transactions.
Bring Economic Rigor to the Public Interest Standard
The “public interest” standard litters the Communications Act. Unfortunately, its meaning is constantly changing and depends entirely on who sits on the commission. Agency decisions become lengthy and protracted as parties typically hire all kinds of experts, lobbyists, and researchers to show why their application serves the public interest. The FCC should adopt a consistent definition for the “public interest.”
The agency’s Office of Economics and Analytics should examine how to bring some rigor and consistency to the “public interest” definition. For instance, when evaluating competing applications for an asset, competitive bidding should have predominant weight in a “public interest” determination. In other contexts, parties should be expected to articulate and estimate the “consumer welfare” effects of an agency decision.
The “consumer welfare standard,” while not perfect, is widely used in antitrust and economic literature and can bring far more economic rigor to currently chaotic and wasteful “public interest” determinations across the federal government.
This blog is part of a series on technology innovation and free expression.
As a new Congress and administration descend on Washington, they will face critical decisions that will define our economic future. The choices made—or avoided—this year could determine whether the United States averts a fiscal crisis or plunges further into unsustainable territory. The time to act decisively by putting the US budget on a path to balance is now.
Last year’s reckless year-end spending package served as a grim reminder of the fiscal irresponsibility that has pushed US debt to 100 percent of GDP. The new Congress has an opportunity to start a new chapter—one that prioritizes fiscal discipline and ensures a sustainable future that enables economic growth to benefit all Americans.
Four looming fiscal deadlines in 2025 demand urgent attention: the return of the statutory debt limit, and the expiration of discretionary spending caps, key provisions of the 2017 Tax Cuts and Jobs Act (TCJA), and expanded Obamacare subsidies. We explain these deadlines in greater depth in our new paper, “A Fiscal Agenda for the 119th Congress: The 2025 Fiscal Cliff Calls for Spending Restraint,” which was just published by the Cato Institute. In it, we call on Congress to meet these challenges with a firm commitment to fiscal responsibility and economic growth or risk greater inflation, higher interest rates, and subsequent voter backlash come the 2026 midterm elections.
The Debt Limit: An Action-Forcing Tool for Real Reform
The statutory debt limit, reinstated on January 1, 2025, presents a key turning point for Congress to adopt a credible deficit-reduction plan that will put the US budget on a path to long-term balance. While some voices, including President Trump, have floated the idea of eliminating the debt limit altogether, doing so would strip away a critical fiscal guardrail. Combined with a potential $5 trillion increase in deficits from extending TCJA provisions without offsets, this could rattle bondholders and send Treasury rates soaring, undermining economic stability.
Instead, Congress should pair any debt limit increase with concrete spending reforms grounded in fiscal targets, such as stabilizing the debt-to-GDP ratio at 100 percent or less over the next decade. To achieve this essential goal, Congress should consider authorizing an independent fiscal commission modeled after the successful BRAC (Base Realignment and Closure) process to address unsustainable entitlement spending—the main driver alongside interest costs of rising spending and debt.
While some are suggesting that the debt limit is dangerous by forcing Congress to take an uncomfortable vote to authorize the Treasury to borrow the money that Congress has appropriated, what’s actually dangerous is the unsustainable fiscal course we’re on. By leveraging the debt limit to enact meaningful reforms, Congress can make a real difference toward putting the US budget on a path to balance, and thereby signal to markets that the United States is serious about fiscal responsibility. Eliminating the debt limit without replacing it with a stricter and more effective fiscal mechanism, such as a Swiss-style debt brake, would be reckless.
Tax Cuts and Fiscal Discipline: A Defining Test for Republicans
The expiration of key TCJA provisions at the end of 2025 offers another critical test. Extending these tax cuts without offsetting spending reductions or new revenues could add an estimated $5 trillion to deficits over the next decade, further fueling inflation and interest rate increases. Republicans must resist the temptation to kick the can down the road and instead commit to extending pro-growth tax cuts within a deficit-neutral framework.
This means eliminating inefficient tax breaks and corporate welfare and pairing tax cut extensions and expansions with reductions in spending. A fiscally responsible approach to tax policy will strengthen economic growth, including by avoiding the dousing of further fuel on the deficit fire.
Discretionary Spending Caps: Holding the Line on Waste and Improper Spending
The expiration of discretionary spending caps after FY 2025 threatens to unleash unchecked growth in non-essential spending. Congress should reinstate binding caps with a modest 2 percent annual growth limit, close loopholes that allow the abuse of emergency designations and similar budget gimmicks to bypass those caps, and cut wasteful and duplicative programs as well as pet-peeve spending that is improper for the federal government to undertake.
The Expiration of Expanded Obamacare Subsidies
The expanded Affordable Care Act subsidies, extended through 2025 by the Inflation Reduction Act, are poised to expire. Congress should let them go. These subsidies have inflated federal spending while failing to tackle the root causes of high health care costs. Allowing the subsidies to expire would prevent the entrenchment of temporary programs that worsen fiscal imbalances. Instead, Congress should prioritize reforms that reduce government intervention in health care, enable market competition, and address regulatory burdens and misaligned financing issues to lower costs and improve health care for all Americans.
DOGE and the Case for a Fiscal Commission
The Department of Government Efficiency (DOGE), tasked with identifying wasteful spending and harmful regulations, sounds promising. But its recommendations, due in 2026, are only part of the solution. Pairing DOGE’s work, which will focus on executive actions, with a congressionally authorized fiscal commission, to advance legislative changes, could provide the political momentum needed to enact difficult reforms, especially to entitlement programs.
That’s where the real root of the fiscal problem lies: unfunded obligations to politically favored senior citizens who collect far more in Social Security and Medicare benefits than they paid for. Congress should stop dancing around the core issue and get serious about a path to reform.
A BRAC-like process, with Congress empowering independent experts to identify changes based on specific, narrow guidelines, could overcome legislative gridlock and bring about the future sustainability of programs like Social Security and Medicare. If successful, such a commission could help the US avoid the entitlement-driven debt crisis that’s advanced significantly since 2010, when baby boomers began retiring in large numbers.
The University of Pennsylvania’s Penn Wharton Budget Model (PWBM) researchers have stated quite bluntly that the United States has “about 20 years for corrective action after which no amount of future tax increases or spending cuts could avoid the government defaulting on its debt whether explicitly or implicitly (i.e., debt monetization producing significant inflation).” The sooner Congress acts, the less painful and the more gradual necessary reforms can phase in without upending our economic growth engine.
A Warning and a Path Forward
The stakes couldn’t be higher. The consequences of inaction—higher inflation, skyrocketing interest rates, and a fiscal crisis—are all too real. But by committing to responsible deficit reduction, Congress and the Trump administration can chart a path to economic prosperity.
Our just-published policy analysis provides a roadmap for achieving fiscal sustainability, including detailed recommendations on how to address these 2025 deadlines responsibly. The time for action is now. Failure to act decisively will not only burden future generations with insurmountable debt but also threaten the aspirations of millions of Americans today.
Read the summary preview of our policy analysis here.
Ireland is suffering from the same kind of housing crisis that has hurt the US. Not surprisingly, the crises in both countries have their roots in government intervention undertaken ostensibly to make housing more affordable.