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A cornerstone of life online has been that platforms are not responsible for content posted by users. What happens if that immunity goes away?
To talk about how these cases could change the Internet, I recently spoke by phone with Daphne Keller, who teaches at Stanford Law School and directs the program on platform regulation at Stanford’s Cyber Policy Center. (Until 2015, she worked as an associate general counsel at Google.) During our conversation, which has been edited for length and clarity, we discussed what Section 230 actually does, different approaches the Court may take in interpreting the law, and why every form of regulation by platforms comes with unintended consequences.
How much should people be prepared for the Supreme Court to substantively change the way the Internet functions?
We should be prepared for the Court to change a lot about how the Internet functions, but I think they could go in so many different directions that it’s very hard to predict the nature of the change, or what anybody should do in anticipation of it.
Until now, Internet platforms could allow users to share speech pretty freely, for better or for worse, and they had immunity from liability for a lot of things that their users said. This is the law colloquially known as Section 230, which is probably the most misunderstood, misreported, and hated law on the Internet. It provides immunity from some kinds of claims for platform liability based on user speech.
These two cases, Taamneh and Gonzalez, could both change that immunity in a number of ways. If you just look at Gonzalez, which is the case that’s squarely about Section 230, the plaintiff is asking for the Court to say that there’s no immunity once a platform has made recommendations and done personalized targeting of content. If the Court felt constrained only to answer the question that was asked, we could be looking at a world where suddenly platforms do face liability for everything that’s in a ranked news feed, for example, on Facebook or Twitter, or for everything that’s recommended on YouTube, which is what the Gonzalez case is about.
If they lost the immunity that they have for those features, we would suddenly find that the most used parts of Internet platforms or places where people actually go and see other users’ speech are suddenly very locked down, or very constrained to only the very safest content. Maybe we would not get things like a #MeToo movement. Maybe we would not get police-shooting videos being really visible and spreading like wildfire, because people are sharing them and they’re appearing in ranked news feeds and as recommendations. We could see a very big change in the kinds of online speech that are available on basically what is the front page of the Internet.
The upside is that there is really terrible, awful, dangerous speech at issue in these cases. The cases are about plaintiffs who had family members killed in isis attacks. They are seeking to get that kind of content to disappear from these feeds and recommendations. But a whole lot of other content would also disappear in ways that affect speech rights and would have different impacts on marginalized groups.
So the plaintiffs’ arguments come down to this idea that Internet platforms or social-media companies are not just passively letting people post things. They are packaging them and using algorithms and putting them forward in specific ways. And so they can’t just wash their hands and say they have no responsibility here. Is that accurate?
Yeah, I mean, their argument has changed dramatically even from one brief to the next. It’s a little bit hard to pin it down, but it’s something close to what you just said. Both sets of plaintiffs lost family members in isis attacks. Gonzalez went up to the Supreme Court as a question about immunity under Section 230. And the other one, Taamneh, goes up to the Supreme Court as a question along the lines of: If there were not immunity, would the platforms be liable under the underlying law, which is the Antiterrorism Act?
It sounds like you really have some concerns about these companies being liable for anything posted on their sites.
Absolutely. And also about them having liability for anything that is a ranked and amplified or algorithmically shaped part of the platform, because that’s basically everything.
The consequences seem potentially harmful, but, as a theoretical idea, it doesn’t seem crazy to me that these companies should be responsible for what is on their platforms. Do you feel that way, or do you feel that actually it’s too simplistic to say these companies are responsible?
I think it is reasonable to put legal responsibility on companies if it’s something they can do a good job of responding to. If we think that legal responsibility can cause them to accurately identify illegal content and take it down, that’s the moment when putting that responsibility on them makes sense. And there are some situations under U.S. law where we do put that responsibility on platforms, and I think rightly so. For example, for child-sexual-abuse materials, there’s no immunity under federal law or under Section 230 from federal criminal claims. The idea is that this content is so incredibly harmful that we want to put responsibility on platforms. And it’s extremely identifiable. We’re not worried that they are going to accidentally take down a whole bunch of other important speech. Similarly, we as a country choose to prioritize copyright as a harm that the law responds to, but the law puts a bunch of processes in place to try to keep platforms from just willy-nilly taking down anything that is risky, or where someone makes an accusation.
So there are situations where we put the liability on platforms, but there’s no good reason to think that they would do a good job of identifying and removing terrorist content in a situation where the immunity just goes away. I think we would have every reason to expect, in that situation, that a bunch of lawful speech about things like U.S. military intervention in the Middle East, or Syrian immigration policy, would disappear, because platforms would worry that it might create liability. And the speech that disappears would disproportionately come from people who are speaking Arabic or talking about Islam. There’s this very foreseeable set of problems from putting this particular set of legal responsibilities onto platforms, given the capacities that they have right now. Maybe there’s some future world where there’s better technology or better involvement of courts in deciding what comes down, or something such that the worry about the unintended consequences reduces, and then we do want to put the obligations on platforms. But we’re not there now.
How has Europe dealt with these issues? It seems like they are putting pressure on tech companies to be transparent.
Europe recently had the legal situation these plaintiffs are asking for. Europe had one big piece of legislation that governed platform liability, which was enacted in 2000. It’s called the E-Commerce Directive. And it had this very blunt idea that if platforms “know” about illegal content, then they have to take it down in order to preserve immunity. And what they discovered, unsurprisingly, is that the law led to a lot of bad-faith accusations by people trying to silence their competitors or people they disagree with online. It leads to platforms being willing to take down way too much stuff to avoid risk and inconvenience. And so the European lawmakers overhauled that in a law called the Digital Services Act, to get rid of or at least try to get rid of the risks of a system that tells platforms they can make themselves safe by silencing their users.
What they have now looks more like a system where platforms do take things down, but the users get notified about it and then they have an opportunity to challenge the takedown if they think that it was wrong, and there’s some transparency. There are just all of these procedural protections around it. That still leaves Europe with way more regulation in place than we have, but it’s actually regulation that was created to get away from the kind of knowledge-based liability that a lot of the amicus briefs are telling the Court they should adopt in these cases.
To your point about transparency, this new law has tremendous new transparency obligations. In addition to notifying users when their content has been taken down, which is an important piece of transparency, it also has regular, aggregate reporting on what content was taken down and why. And it has provisions for researchers to get access to internal company data so they can understand what’s going on and figure out if the platforms are, for example, acting in a biased manner in deciding what they take down. It just has a lot in there to help the public and lawmakers understand much better what platforms are doing.
And does transparency seem like a good middle ground here, to you? Are you optimistic about what’s going on in Europe, or does it still seem like just a small step?
I think it is a really important interim measure. Lawmakers can’t possibly make smart laws unless they understand what’s going on. I mean, of course, the European civil servants who drafted the D.S.A. have been looking closely at these questions since 2011. They’ve been looking closely at the real-world mechanics of content moderation and what platforms do when they face liability for user content, and they drafted something very careful, accordingly. If our lawmakers took the amount of information that their European analogues have gathered over the years, they could come up with smarter laws than the ones that we’ve seen proposed here. But there’s still a lot more that people don’t understand and that without transparency mandates we won’t come to understand. We will get better laws in the long run with transparency, but it’s not a cure-all. It’s not that once there’s transparency, we won’t need any laws.
To go back to child sex abuse and copyright, is there a sense that attempts to regulate these categories have been successful, and have had the intended effect?
You would get very different answers from different people. In the text of Section 230, as it was enacted, it spells out that no federal crimes are immunized. And so it’s not just child-sex-abuse content. It’s terrorism, too. If the Justice Department decided that platforms were violating criminal laws and materially supporting terrorism, they could prosecute them just fine. There’s no limit on that, or drug charges, or any other federal criminal laws. That’s where these claims come in—because they’re federal crimes, they’re not immunized.
But there was a new carve-out enacted in 2018 for prostitution and trafficking-related claims. I think I should come clean that I am one of the outside counsel in a First Amendment case challenging that one, because I think they just did a really bad job. Nobody is happy with what that law actually accomplished. As for copyright, lawyers all hate it. And I certainly have my quibbles with it, but it is much more successful, I think, than what we would get if courts just took away Section 230 immunity and unleashed the forces of tort litigation to try to shape platform obligations.
We’re much better off with a law that tries to take into account the rights and interests of Internet users who are going to be affected by it. If you think about what I described, there are these provisions that are intended to protect users who will never be in court to defend their interests. If somebody is injured by online content, be it a copyright owner or the plaintiffs in this case, they go to court and they sue a platform. The court is hearing from the injured person and it’s hearing from the platform, but it’s not hearing from all of the other Internet users whose rights and interests will be affected by the outcome. So there just isn’t a mechanism for a court to put in place the sorts of procedural protections that you see in the new European law.
Let’s turn to Texas and Florida. Assuming the Court takes up these cases in some form, how potentially radical could the outcomes be?
Let me just start with the big picture by saying that these terrorism cases are about wanting platforms to take down more content, to step in more to prevent bad things from happening. And I think everybody sympathizes with that goal, whatever we think is the right set of rules to achieve it without a bunch of collateral damage. The Texas and Florida cases are about the opposite. They’re about wanting platforms to step in less and to tolerate more offensive or hateful or harmful speech than they do now. And that’s something that is seen as a politically conservative position.
I think most people can sympathize with the idea that we don’t want a very small handful of giant corporations to have the kind of gatekeeper power over public discourse that they have now. The starting-point goal of the legislators in Texas and Florida is something I’m sympathetic with, even though the laws that they enacted are crazy and also very sloppy. These are both very long pieces of legislation with all kinds of details that nobody thought through, because I think they were just having fun and being performative about it. I don’t think they really envisioned a world where platforms would try to comply with these laws.
You said you were sympathetic with the goals, but it seems that the goals might have been just to stop companies from restricting far-right content.
Yes, I do think that’s the goal. But the first time that I saw litigation on claims like this, it came from more traditionally left sources. In Brazil, Facebook took down an image of a native Amazonian woman who was topless. And [the Ministry of Culture said] this was a violation of cultural diversity.
That’s hilarious.
The other one’s even crazier. I don’t know if you know the French “L’Origine du Monde,” which is a Gustave Courbet painting? It hangs in the Musée d’Orsay. Its credentials are impeccable, but it’s also a very closeup depiction of female genitalia. Facebook took it down. And the Frenchman who had posted it was, like, “But this is art. I have a right to post art.”
Both of these state laws require platforms to carry speech that the platforms don’t want to. And both of them imposed transparency obligations somewhat similar to the ones in the Digital Services Act in the E.U. The platforms challenged both of those laws in both aspects, the transparency and the so-called must-carry provisions, on a couple of different legal grounds. But the grounds that the Supreme Court would look at if they took it is whether the platform’s own First Amendment rights to set editorial policy have been violated.
The Florida one says that, if an online speaker counts as a journalistic enterprise, which is defined very broadly and strangely, or if they’re a political candidate or they’re talking about a political candidate, then the platform can’t take down anything they say, with almost no exceptions. There’s a weird obscenity exception. Basically, that means if you’re talking about a political candidate or you are a political candidate, you can share electoral disinformation or covid disinformation or racist biological theories. All kinds of things that I think most people would consider pretty horrific. Platforms would have to leave it up in Florida.
The Texas law is also motivated by a concern about conservative voices being silenced, but it comes at it a little bit differently. It says that platforms can engage in content moderation under their own discretionary terms, but they have to do so in a way that is viewpoint-neutral. And there’s a lot of disagreement and uncertainty about what it means to be viewpoint-neutral. I think, and a lot of people think, that it means that if you take down posts celebrating the Holocaust, you also have to take down posts condemning it. If you leave up posts that are anti-gun violence, you also have to leave up posts that are pro-gun violence.
Sorry, these examples are very dark. But that is what we’re talking about here: horrific things that people say on the Internet, that, effectively, platforms such as Facebook or YouTube would have to leave up under this Texas law, unless they want to take down a whole lot of user speech. They could not let anybody ever talk about racism at all, because they have to be viewpoint-neutral on the topic, or not let people talk about abortion at all, because they have to be viewpoint-neutral on the topic, etc.
Ruling in favor of these laws would significantly affect how these corporations operate, no?
Well, there are some clever lawyers on the Supreme Court. I think they can “logic” their way through to an outcome that says, Oh, it’s only for big tech platforms that this is the rule. This is only for companies that have such a crucial role in public discourse and that hold more than a certain market share. Both the Texas and the Florida laws have size-based limitations. I think it’s probably about twenty platforms by size that are subject to these laws. Between being good lawyers or potentially just being unprincipled about it, it would not be hard for the Court to arrive at a ruling that says [that] just platforms have to do this—it does not apply to employers or to schools, or whoever else they have in mind.
But you’re right that it would still be a very big upheaval, because the case law that we have so far in this area generally supports the platform. We have case law saying that cable companies, for example, have a First Amendment right to decline to carry certain speech. We also have laws saying that, in some narrow cases, Congress can override that and force them to carry local broadcast stations, for example. So it’s not perfectly crisp that Congress can never do this, but it is very rare that the Court has allowed Congress to do this. And, in those cable cases, we saw Clarence Thomas speaking as a traditional, business-friendly conservative, taking the position that of course these are private companies, and the government can’t possibly come along and tell them what speech they have to carry. That would be outrageous. It’s a violation, maybe, of their property rights as well as their speech rights. That’s the traditionally conservative perspective—defending the rights of private companies to pick and choose what speech they want to carry.
But we’ve entered this strange, new, through-the-looking-glass world where many conservatives, particularly politicians, now have precisely the opposite viewpoint about platforms and say “Well, for platforms, of course, lawmakers can come in, the government can come in and tell them what they have to do with their property and tell them what speech they have to carry.” Clarence Thomas now has effectively changed sides on this question and has written that this should be possible.
Kavanaugh, however, in a big opinion he wrote on the D.C. Circuit, staked out a position that is much more traditionally pro-private-property rights, pro-business. In a case about I.S.P.s and net neutrality, he specifically said that platforms such as Facebook and YouTube have a First Amendment right to exclude the speech that they don’t want to carry. The exception that he indicated might exist is if the government could make out a competition claim or say that there’s market failure here, that there’s so much economic concentration in the hands of a small number of platforms that that becomes a trigger for the state intervention to be permissible.
Right, and, after all the things we’ve talked about, it does seem like there are better and worse ways to regulate this stuff, but, fundamentally, if we have companies that are this big and play this much of a role in the economy and our discourse, there just aren’t great solutions in terms of regulation.
The problem is that we have tremendous concentrations of power over discourse in private hands. One response might be to try to break up that concentration.
But look at what the lawmakers in Texas and Florida did. They looked at that concentration of power, and they were, like, “Oh, that’s terrible. Facebook and Google: you should not have that concentration of power. But, instead of reducing it, and devolving power to more people, we’re just going to take it over and tell you how to use it.” Instead of solving concentration as the problem, they are accepting concentration of power as a burden of the state. They will just tell the platforms how to exercise it, which is not, I think, in anyone’s interest.
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New York City employees protest Mayor de Blasio's coronavirus vaccination mandate for all municipal workers on October 25, 2021. (photo: Getty)
An unhinged case brought by anti-vaxxers will be heard by one of the biggest reactionaries in the federal judiciary.
They target four of the world’s leading media institutions — the Washington Post, the BBC, the Associated Press, and Reuters — claiming that these institutions violated federal antitrust law by conspiring with major tech companies to suppress many of the plaintiffs’ business. That is, the business of spreading highly dubious claims about a disease that killed more than a million Americans.
In case there’s any doubt, these plaintiffs’ claims are meritless. It is not illegal for media companies to work together to promote public health — or to work together in myriad other ways — so long as the purpose of that collective effort is to advance social or political goals, as opposed to economic goals such as eliminating competitors.
But the case will be heard by a judge who has spent his brief career on the bench acting like a rubber stamp for reactionary grievances: Trump appointee Matthew Kacsmaryk.
Kacsmaryk is a longtime anti-sex crusader and former attorney for a Christian right law firm in Texas. Since then-President Donald Trump appointed him to the federal bench, however, Kacsmaryk has become one of the most powerful allies of reactionary causes in the United States. Indeed, he’s become one of the most consequential public officials in modern-day America largely due to a rule that automatically assigns every federal lawsuit filed in Amarillo, Texas, to him.
Accordingly, far-right plaintiffs have spent the Biden administration making pilgrimages to Amarillo to beg policy favors from Kacsmaryk — favors that Kacsmaryk has thus far been more than happy to grant. In less than four years on the bench, he has inserted himself into the Biden administration's foreign policy. He’s tried to nullify federal legal protections prohibiting health providers from discriminating against LGBTQ patients. He’s attacked the right to contraception. And he’s currently hearing a case attempting to force the Food and Drug Administration to withdraw its 23-year-old approval of mifepristone, a drug that is used in about half of all abortions.
And now it’s the anti-vaxxer right’s turn to make the trip to Amarillo, where Kacsmaryk has the chance not only to give the federal judiciary’s blessing to some of the worst Covid-related conspiracy theories, but also to order media companies that Republicans love to hate to turn over vast sums of money to anti-vaxxers eager to spread disinformation to the masses.
The allegations in Children’s Health Fund, briefly explained
It’s not immediately clear how much money is at stake in this case, but the amount is likely to be quite high. The plaintiffs claim that the media defendants conspired to shut down or severely harm anti-vaxxer websites and similar content that collectively brought in millions of readers and viewers. Federal antitrust law permits antitrust plaintiffs to recover “threefold the damages” they suffered because of a defendant’s unlawful actions.
And they’re seeking those damages from members of a group known as the Trusted News Initiative (TNI), a partnership made up of some of the most important tech and media companies around the globe. According to the TNI’s website, this group seeks to bring “together organisations across media and technology to tackle harmful disinformation in real time.”
The TNI also identifies a long list of media and tech institutions as its “core partners”:
AP, AFP, BBC, CBC/Radio-Canada, European Broadcasting Union (EBU), Financial Times, Information Futures Lab, Google/YouTube, The Hindu, The Nation Media Group, Meta, Microsoft, Reuters, Reuters Institute for the Study of Journalism, Twitter, The Washington Post, Kompass – Indonesia, Dawn – Pakistan, Indian Express – India, NDTV – India, ABC – Australia, SBS – Australia, NHK – Japan.
The Children’s Health Fund plaintiffs draw many of their allegations against this media partnership from publicly available information — such as a 2020 speech by BBC executive Jamie Angus, where he said that the TNI “has developed a shared early-warning system to alert partners about disinformation that has the potential to become viral and cause significant harm to the integrity of elections.”
Similarly, a December 2020 announcement published on the BBC’s website revealed that the TNI also seeks to “combat spread of harmful vaccine disinformation.”
Although they provide little evidence to support this particular claim, the Children’s Health Fund plaintiffs allege that TNI members sought to suppress 23 ideas — most of which relate to Covid — that they deemed to be “misinformation.” The plaintiffs complain, for example, that TNI members suppressed claims that the drugs hydroxychloroquine and ivermectin are “an effective treatment for COVID” (the evidence that either drug is an effective treatment is exceedingly weak). They accuse the TNI of suppressing false claims that masks “do not prevent the spread of Covid.” And they accuse the TNI of suppressing various attacks on vaccines.
Meanwhile, the plaintiffs include several individuals who ran websites and other media ventures that publish content like “COVID vaccines harm some people” or “Elites Worried: COVID Cases in India Plummet After Government Promotes Ivermectin and Hydroxychloroquine Use.” Many of them claim that they were “censored, shadow-banned, and de-platformed” by members of the TNI.
The crux of their legal argument is that the TNI engaged in a “group boycott,” a forbidden practice under federal antitrust law, where multiple competitors within an industry collude to deny essential goods or services to other competitors. Specifically, the Children’s Health Fund plaintiffs suggest that news organizations within the TNI colluded with tech companies within TNI to deny anti-vaxxer sites access to platforms like YouTube, Facebook, or Twitter.
At least some of these plaintiffs’ factual claims appear to be true. TNI does exist. It does include both major news companies and major tech platforms. And it did seek to “combat spread of harmful vaccine disinformation.”
But even if these plaintiffs eventually prove that top news and tech executives got together in a smoke-filled room and plotted to suppress plaintiffs’ anti-vaxxer content, there is a big, glaring problem with their legal arguments. Antitrust law does prohibit group boycotts that seek to suppress competition within an industry, but it does not prevent competitors from working together toward shared social or political goals.
It is not illegal for media companies to work together to protect public health
Federal law prohibits competitors from banding together in a conspiracy “in restraint of trade.” The purpose of this ban is to prevent companies from engaging in anti-competitive practices that distort the market and leave consumers worse off. It’s not to prevent companies from working together toward shared political or social goals.
Indeed, if antitrust law did forbid competitors from working together on such goals, then advocacy groups such as the US Chamber of Commerce or the National Association of Manufacturers would be unlawful because these organizations pool resources from multiple competing businesses to lobby policymakers.
The Supreme Court drew the line separating economically motivated boycotts (which ordinarily are not allowed under federal antitrust law) and politically or socially motivated ones (which are often protected by the First Amendment) in two decisions: NAACP v. Claiborne Hardware (1982) and FTC v. Superior Court Trial Lawyers Association (1990).
In the former case, the NAACP led a boycott where Black consumers refused to patronize white merchants in Claiborne County, Mississippi. The purpose of this boycott was to advance various civil rights-related demands, including desegregation of all public facilities, integration of bus stations, and the hiring of more Black police officers.
In ruling that the boycotters’ nonviolent actions were permissible, the Supreme Court focused on the fact that their goals were political and not economic. Yes, the Court explained, the boycotters must have known that the boycotted merchants “would sustain economic injury,” but that did not change the fact that “the purpose of [the boycotters’] campaign was not to destroy legitimate competition.”
Indeed, the Court held that suppressing this boycott would give “insufficient weight to the First Amendment’s protection of political speech and association.”
The Trial Lawyers case, meanwhile, involved a group of lawyers who had historically been paid by the District of Columbia to represent indigent criminal defendants, but who collectively refused to take on additional cases until the District raised the rates it paid these lawyers.
Although this boycott, which successfully convinced DC to raise these rates, did have clear political implications — higher rates for indigent defense lawyers meant that more and better attorneys would agree to represent such clients — the Court deemed it to be an impermissible economic boycott. “The agreement among the CJA lawyers was designed to obtain higher prices for their services and was implemented by a concerted refusal to serve an important customer in the market for legal services,” the Court explained. Such a “constriction of supply” the Court determined, “is the essence of ‘price-fixing.’”
Yet, while Trial Lawyers deemed the boycott in that case to be an impermissible economic boycott, it also reaffirmed Claiborne Hardware’s holding that politically and socially motivated boycotts are acceptable. The “undenied objective” of the lawyers’ boycott, the Court explained, “was an economic advantage for those who agreed to participate.” By contrast, “those who joined the Claiborne Hardware boycott sought no special advantage for themselves.” Instead, “they struggled ‘to change a social order that had consistently treated them as second class citizens.’”
Read together, in other words, these two Supreme Court cases establish that the Children’s Health Fund plaintiffs cannot prevail unless they can prove that the TNI was formed not to advance a political or social goal like protecting public health or preventing the spread of election disinformation, but to advance the economic goal of pushing competitors out of the market.
But the plaintiffs offer little, if any, evidence to support such an allegation, beyond a few conclusory claims that a few companies or individuals associated with the TNI benefited from certain Covid-related policies. They claim, for example, that TNI members Facebook and Microsoft “have direct or indirect massive pharmaceutical investments that stood to increase, and did increase, in value from promotion of the COVID vaccines.” They also imply that the Washington Post, which is owned by Amazon founder Jeff Bezos, sought to extend Covid lockdowns because Amazon profited “as the result of the lockdown policies that the TNI promoted.”
In any event, these plaintiffs are welcome to try to prove that a diverse array of media and tech companies, including outlets in India and Australia, engaged in a massive conspiracy to extend Covid lockdowns because it was good for Jeff Bezos’s stock portfolio. But the most likely explanation for why the TNI exists is the most obvious one — that media outlets and tech companies were genuinely concerned about the problem of disinformation that could harm public health, and they worked together to keep a lid on such disinformation. That’s a political or social goal, not an economic one.
If Kacsmaryk rules in favor of the anti-vaxxers, it could be needlessly difficult to get his decision reversed
Given the legal authorities weighing against the Children’s Health Fund plaintiffs, the biggest reason to fear that they might prevail is that the case is assigned to Matthew Kacsmaryk. Kacsmaryk’s record on the bench indicates he is willing to use his public office to advance reactionary causes, regardless of what the law actually says. He could reject this anti-vaxxer lawsuit, but it would be a delightful surprise if he did.
And, should Kacsmaryk order the four news industry defendants to fork over huge piles of money to the anti-vaxxers, it could prove difficult to toss out that decision on appeal for two reasons.
The first is that appellate judges are typically supposed to defer to a trial judge’s factual findings, unless those findings are “clearly erroneous.” Ordinarily, this is a good practice because trial judges are actually involved in constructing the factual record in a case. So they are better equipped to weigh that record and to assess the credibility of witnesses than an appeals court judge who can only review a transcript of the lower court’s proceedings.
But this “clearly erroneous” standard can create a problem when trial court judges act in bad faith. If Kacsmaryk should declare, for example, that TNI conspired to extend the Covid lockdowns in order to pad Amazon’s profits, appellate judges aren’t forbidden from overruling that determination. But the clearly erroneous standard could provide an appellate judge who is looking for an excuse to affirm Kacsmaryk with that very excuse.
And that brings us to the second problem the media defendants are likely to face on appeal. Kacsmaryk’s decisions appeal to the United States Court of Appeals for the Fifth Circuit, a right-wing court dominated by Trump appointees and other Republicans who share Kacsmaryk’s penchant for writing their own preferences into the law.
Most cases in the Fifth Circuit are heard by three-judge panels randomly selected from among the court’s more than two dozen judges, and it is possible to draw a panel of reasonable judges in this court. But a party appealing to the Fifth Circuit is mathematically more likely than not to draw a reactionary panel that may delight at the possibility of sticking it to supposedly liberal media outlets.
The first time this case might be heard by judges who are actually interested in deciding this case based on the law, in other words, could be when the case reaches the Supreme Court. And the Supreme Court, which is itself dominated by conservative Republicans, turns away the vast majority of petitions asking the justices to hear a particular case. Even if the Court agrees to hear this case, moreover, the media companies will still have to overcome the clearly erroneous standard if they challenge any of Kacsmaryk’s factual findings.
The bottom line, in other words, is that some of the biggest companies in the tech and media industries have to seriously grapple with a case that’s in the hands of a far-right culture warrior with a penchant for reading the law creatively to benefit right-wing causes. Should the media defendants lose before Kacsmaryk, moreover, they face an uncertain path on appeal. And no matter what happens, they are likely to have to spend simply enormous amounts on legal fees as their lawyers struggle to convince a right-wing judiciary not to score a few punches on a perennial Republican punching bag: the press.
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Democratic Rep. Ruben Gallego announced Monday he will run for Sen. Kyrsten Sinema's Arizona Senate seat in the 2024 elections. (photo: Francis Chung/AP)
Sahil Kapur and Vaughn Hillyard and Haley Talbot and Frank Thorp V and Liz Brown-Kaiser and Zoë Richards
“As a Marine, I never back down from a fight and in the Senate, I’ll fight to make sure every Arizonan has the same chance that I had at the American Dream,” Gallego said in a statement.
Gallego launched his campaign with videos in English and Spanish, highlighting his humble beginnings as the son of an immigrant mom. If elected he would become the first Latino senator in what has become one of the most competitive states in the country.
Gallego is the first major candidate to jump into the race. His long-expected campaign comes as Sinema’s intentions remain a mystery; the first-term senator has not said whether she will run for re-election as an independent in 2024.
“A never-ending focus on campaign politics is why so many people hate politics,” Sinema told local radio station KTAR on Friday.
When pressed by reporters Monday evening, Sinema refused to comment on Gallego’s Senate bid. Earlier in the day, a Sinema aide declined to comment on Gallego’s announcement.
If she runs, it could become a three-way race in the general election, with Republicans sure to field a nominee. Some Democrats fear that could play into the GOP’s hands.
In his statement Monday, Gallego said: “The problem isn’t that Senator Sinema abandoned the Democratic Party — it’s that she’s abandoned Arizona. She’s repeatedly broken her promises and fought for the interests of big pharma and Wall Street at our expense. I’m running for the U.S. Senate because the rich and the powerful don’t need any more advocates in Washington — but families who can’t afford groceries do.”
The National Republican Senatorial Committee said Monday in a news release that it “welcomes” Gallego to the race.
“The Democrat civil war is on in Arizona," its spokesman, Philip Letsou, said. "Chuck Schumer has a choice: Stand with open borders radical Ruben Gallego or back his incumbent, Senator Kyrsten Sinema.”
Who else might run?
It’s unclear what competition Gallego will have in the primary. Rep. Greg Stanton, D-Ariz., has said he won’t run. An ally close to Democrat Paul Penzone, the Maricopa County sheriff, said that “a lot of people have approached him” but that for now, he’s focused on a re-election bid for sheriff in 2024.
On the Republican side, a source close to failed governor candidate Kari Lake said that “many people are urging her to run” but that she is “very invested in the legal battle” over the race she lost in the midterm elections.
Karrin Taylor Robson, who narrowly lost to Lake in the 2022 primary after spending $20 million of her family’s money, is seriously considering a Senate run, a source close to her said. If she runs, she would make a play to win back the Republicans and independents who once supported Sen. John McCain, R-Ariz., and have drifted away from the GOP, the source said.
Blake Masters, a GOP Senate nominee who lost in 2022, is “strongly considering” another bid this cycle, two sources said.
And Mark Lamb, the Pinal County sheriff, is also considering a Senate run in 2024, said an Arizona Republican source.
Sinema vs. Gallego
Sinema became the first Democrat in 30 years to get elected to the Senate from Arizona in 2018. In recent years, she has cut numerous bipartisan deals and broke with President Joe Biden on some of his top priorities, like higher tax rates for the wealthy, weakening the Senate’s 60-vote rule to pass a federal voting rights law and raising the minimum wage to $15 per hour. She has drawn criticism from Arizona Democrats and cut ties with the state party.
A Gallego adviser said he's prepared for a two-way race if Sinema steps aside or a three-way race if she chooses to run.
The adviser, who spoke on condition of anonymity to discuss internal matters, said the strategy to frame it as a battle of who is “fighting for working people” versus “fighting for Wall Street” will work against Sinema, if she runs, as well as the eventual Republican nominee.
“She has no base,” the Gallego adviser said of Sinema. “If anything, she could play the spoiler.”
Gallego’s decision sets up a challenging dynamic for Democratic leaders in what they see as a must-win race in order to hold the Senate majority next year. Senate Majority Leader Chuck Schumer and the Democratic Senatorial Campaign Committee have declined to say whether they will support Sinema if she runs.
Sinema’s allies argue that her work to secure deals with Republicans on proposals like infrastructure and a modest gun safety law helped Democrats in the 2022 midterm election. Some have questioned whether Gallego’s more progressive record is a good fit for Arizona, a former Republican stronghold that has become highly competitive. In 2020, Biden carried the state. That year, and again in 2022, Sen. Mark Kelly, D-Ariz., won Senate races.
Sinema’s situation is unique. Over the next two years, Schumer said, she’ll get her Senate committee assignments from the Democratic Party. But unlike liberal-leaning independent Sens. Angus King of Maine and Bernie Sanders of Vermont, she doesn’t attend caucus meetings and has worked to distance herself from the party.
Gallego’s campaign cited a survey last month by the Democratic-affiliated Public Policy Polling firm, which tested a three-way race between Gallego, Sinema and hypothetical Republican candidate Kari Lake. In that survey, Lake got 41%, Gallego 40% and Sinema 13%.
“Although Sinema would not have a serious path to victory as an independent candidate she could have a spoiler effect since she gets 14% from Biden voters but only 9% from Trump voters,” PPP pollster Tom Jensen said in a memo circulated by Gallego’s team.
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Roland Conner, the owner of Smacked! in Manhattan's Greenwich Village. (photo: Shannon Stapleton/Reuters)
Roland Conner, 50, opens pop-up marijuana shop in Greenwich Village, only second legal dispensary in the state
A 1991 arrest resulted in a months-long incarceration, as America’s flawed “war on drugs” had an unfairly disproportionate impact on Black and brown youth.
Since that period in his life, native New Yorker Conner has gone on to operate a property management business and manage a transitional housing facility in the Bronx borough.
His next horizon? Operating one of New York state’s newly licensed dispensaries for recreational cannabis, at a store he’s calling Smacked! in the upscale Greenwich Village neighborhood of Manhattan.
Despite hundreds of unauthorized dispensaries sprouting all over the city, Smacked! is only the second legal dispensary to open in the state and the first one operated by someone formerly incarcerated on marijuana-related charges.
Conner is running the pop-up dispensary with his wife and son, and he soon plans to move into a more permanent space.
“I am so excited to become a part of history as the first individual to open a legal cannabis dispensary in New York City. Given my experience with cannabis, I never could have imagined that I would be opening a store like this,” Conner said in a statement reported by NBC News.
Conner is among the first of more than 900 applicants to receive a dispensary license, thanks to a New York initiative.
The state has been leading the charge in the US to provide some people formerly incarcerated in relation to cannabis with the opportunity to procure business licenses as priority applicants, as a way to help address past convictions in a heavy-handed system that was biased against minorities.
Conner and others deemed “social equity” applicants by the state are also receiving aid from a $200m public-private fund meant to help redress the impacts of the war on drugs, especially in communities of color.
Outside Smacked! on Wednesday, security personnel greeted customers curiously approaching the nondescript store, standing out only by its frosted windows and a sticker signifying its legal dispensary status.
Inside, smiling staff in store uniforms greeted eager customers, offering professional knowledge about various marijuana products and accessories.
The large space was adorned with blue balloons, and glass shelves were stocked with glass jars of cannabis flowers.
On only its second day, many customers said they specifically visited Smacked! to support Conner and the initiative.
Julio Meza-Juarez, 26, said he heard about Smacked! on the news and stopped by the dispensary after a nearby doctor’s appointment was cancelled.
“I support this 100%,” he said of New York state’s initiative.
Meza-Juarez, who works as an art handler but has been recovering from a shoulder injury, added that the initiative could help rectify past racial injustice related to marijuana prosecution.
“We just need to see more people of color in positions like these,” said Meza-Juarez, “[especially as] this is a new market that’s bound to just skyrocket.”
In New York City, Black and Latino people make up the majority of marijuana-related convictions, accounting for 95% of arrests and 96% of convictions in 2020, according to the Legal Aid Society, despite white people consuming at similar rates.
Francis Hall, 57, was involved in the marijuana business himself and outside Smacked! on Wednesday he told the Guardian he was happy to see Conner receive a chance to participate in the industry.
“It’s unfortunate that this man did become incarcerated, but it is very nice to see some justice being served today,” said Hall, an actor and activist.
Housing Works Cannabis Companywas the first legal dispensary to open in New York state. The dispensary opened in late December a few blocks away and all proceeds from the business go to the Housing Works non-profit that fights HIV and homelessness.
Matthew Rohrer, a 52-year-old university teacher and poet, stopped by Smacked! while commuting to work, and said he was pleased to see his purchase used to promote greater equity and support New York City.
“I honestly don’t mind paying a little more to know the taxes are going back to my city, knowing that Housing Works and someone like [Conner] is making the profits,” he said.
Marijuana has been largely decriminalized in New York City since 2019. In 2021, state lawmakers approved adult recreational cannabis use, paving the way for legal sale.
The rollout of dispensaries has been an uneasy one. Unlicensed dispensaries have multiplied throughout the city, from folding tables in popular parks to fully fledged storefronts, causing a good deal of confusion.
Licensed marijuana providers have also had difficulty finding landlords willing to rent to them, according to the New York Times.
New York city officials have said that they are actively addressing the estimated 1,400 unlicensed dispensaries, as official outlets open at a trickle.
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Pope Francis presides over mass on Wednesday in Rome. (photo: Filippo Monteforte/Getty)
He also characterized those who oppose him as “like a rash that bothers you a bit.”
“Being homosexual is not a crime,” he said in an interview with the Associated Press, which was published on Wednesday. “It’s not a crime. Yes, but it’s a sin. Fine, but first let’s distinguish between a sin and a crime. It’s also a sin to lack charity with one another.”
“And being homosexual is not a crime,” he said again. “It’s a human condition.”
The comments, which were part of a lengthy and wide-ranging interview, did not establish any new doctrine or push any new theological territory. The Catechism of the Catholic Church states that gay people “must be accepted with respect, compassion, and sensitivity,” and that “every sign of unjust discrimination in their regard should be avoided.” Nor is it counter to Francis’ previous stances on the matter: He has repeatedly urged the church to treat gay people with compassion. He famously said of gay priests, “Who am I to judge?”
But in making comments about laws, Francis is speaking to some of his own bishops. Francis is about to embark on a weeklong trip to the Democratic Republic of Congo and South Sudan. Eleven countries in the world have a death penalty on the books, and another 56 have other criminal penalties. These laws are concentrated in the Middle East and Africa.
When the AP asked Francis if the church should help to eliminate these laws, he responded, “Yes, yes. It must do this. It must do this.”
He went on to blame the laws on cultural differences and called on bishops in regions with harsh views of gay people to rid themselves of that mentality. “These bishops have to have a process of conversion,” he said.
Fr. James Martin, editor-at-large for the Jesuit magazine America and a prominent proponent of gay rights in the church, described the news as “an immense step forward.” In a statement, the executive director of New Ways Ministry, a Catholic LGBTQ advocacy group, praised Francis for helping “save lives and promote respect for LGBTQ+ people, particularly in areas where law or social norms make them victims of fear, hatred, violence, and death.” (Francis made news in 2021 when he commended the organization, breaking with the church’s earlier condemnation of it.)
Already, there are rumblings of a conservative backlash. On Wednesday afternoon, Bishop Joseph Strickland of Tyler, Texas, an outspoken Francis critic, retweeted a conservative Catholic account that quoted Pope John Paul II: “‘Pressure for homosexual relationships to be recognised as a different form of family, which are also entitled to the right to adopt,’ is ‘a violation of God’s law’ and an ‘ideology of evil…seeking to use human rights against humanity and the family.’ ” Strickland thanked John Paul for his “clarity in the truth God has revealed to us.”
Other conservative stalwarts, including the Catholic News Agency, a property of EWTN, argued that Francis’ comments may have actually taken a more conservative stance on homosexuality than the Catholic Church itself. It’s a bit technical, but in short: The Catholic Church does not teach that being gay is a sin. According to the Catechism of the Catholic Church, it is specifically “homosexual acts” that are “intrinsically disordered”; gay Catholics are “called to chastity.”
It is unclear from watching the video of this conversation whether Francis is actually agreeing that being gay is a sin or if he is pantomiming a rhetorical argument from the perspective of someone arguing with him. However, given that few, if any, LGBTQ advocates appear to have focused on this particular phrasing from Francis, it seems that most observers have assumed that Francis is conflating homosexuality and “acting on homosexuality,” or otherwise not dwelling on the distinction.
Either way, Francis is not changing anything about the church’s stance, which he has long affirmed. Although Francis has emphasized “compassion,” as recently as 2021, the Vatican reiterated that Catholic priests could not bless same-sex unions because “God cannot bless sin.”
As for why these statements are coming out now: According to the AP, Francis has simply never been asked in an interview before. “Francis willingly responded, citing even the statistics about the number of countries where homosexuality is criminalized,” the AP reported.
The interview covered a number of other hot-button issues in the church, including rumors about Francis’ health. (He said a fracture in his knee had healed and revealed that a highly common colon disease, which required colon surgery in 2021, had returned.) He also responded to speculation about his retirement, saying he had not yet thought about plans for stepping down.
He also addressed the recent attacks by the recently deceased Cardinal George Pell and by Georg Gänswein, Pope Benedict XVI’s personal secretary. “Even though they say he criticized me, fine, he has the right. Criticism is a human right,” Francis said of Pell. “He was a great guy. Great.”
Deflating Gänswein’s narrative of tension between Benedict and Francis, the pope described his predecessor as “a good companion.” “In the face of a doubt, I would ask for the car and go to the monastery and ask,” he said. He also rejected the idea that any criticism leveled against him had anything to do with Benedict. “I wouldn’t relate it to Benedict, but because of the wear-and-tear of a government of 10 years,” he said. “They started to see my flaws and didn’t like them.” Francis’ papacy will mark a decade in March.
He described the bishops and cardinals who oppose him as “like a rash that bothers you a bit” but called on his critics to speak openly.
“You prefer that they don’t criticize, for the sake of tranquility,” he said. “But I prefer that they do it because that means there’s freedom to speak.”
He added: “The only thing I ask is that they do it to my face because that’s how we all grow, right?”
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Then-Secretary of State Mike Pompeo with Saudi Arabia's King Salman, right, in Riyadh in 2018. (photo: AP)
In “Never Give an Inch: Fighting for the America I Love,” published Tuesday, Pompeo says Khashoggi did not deserve to die and called his killing “outrageous, unacceptable, horrific.” However, he then goes on for several more pages mocking the “disproportionate global uproar” over Khashoggi’s death, arguing that Khashoggi was an “activist,” not a journalist, whose death was “hammered” out of proportion by an overly sympathetic media.
“Just as the media spent years trying to drive a wedge between me and President Trump, they spent the ensuing weeks trying to fracture America’s relationship with Saudi Arabia,” Pompeo wrote.
“The progressive Left hates MBS,” he wrote, using a common moniker for Mohammed, “in spite of the fact that he is leading the greatest cultural reform in the kingdom’s history. He will prove to be one of the most important leaders of his time, a truly historic figure on the world stage.”
Khashoggi was killed Oct. 2, 2018, while visiting the Saudi Arabian Consulate in Istanbul to obtain documents that would allow him to marry his fiancee, Hatice Cengiz. Saudi agents dismembered Khashoggi’s body inside the consulate, and his remains have never been found.
In the months that preceded that visit, Khashoggi had been writing columns for The Post that were sharply critical of the crown prince, who effectively rules Saudi Arabia and has carried out a harsh crackdown on rivals and dissidents.
Pompeo, who is reportedly exploring a 2024 presidential run, also pushed the claim in his book that Khashoggi was “cozy with the terrorist-supporting Muslim Brotherhood,” a charge that Khashoggi’s family — and Khashoggi, when he was alive — denied repeatedly.
“Jamal Khashoggi was not a dangerous person in any way possible,” Khashoggi’s family told The Post in 2018. “To claim otherwise would be ridiculous.”
As The Post reported after Khashoggi’s death, that claim was in fact pushed by the crown prince, who spoke by phone with President Donald Trump’s son-in-law Jared Kushner and then-national security adviser John Bolton in the days after Khashoggi’s disappearance. The crown prince told Kushner and Bolton then that Khashoggi was a dangerous Islamist and urged Kushner and Bolton to preserve the U.S.-Saudi alliance.
The CIA concluded in 2018 that Mohammed had ordered Khashoggi’s killing, contradicting Saudi Arabia’s insistence that the crown prince had no advance knowledge of the plot. However, in his book, Pompeo — who previously served as CIA director — seems to give Mohammed the benefit of the doubt over the United States’ own intelligence agencies.
“First, contrary to what has been reported, there is nearly zero intelligence that directly links MBS to ordering the murder,” Pompeo wrote. “Second, I met with many people who had ordered killings. Were it to be proven that MBS had ordered this one, it would have meant only that he was one more ruthless leader in a pretty damn ruthless part of the world.”
In a statement Tuesday, Fred Ryan, publisher and chief executive of The Post, said it was “shocking and disappointing” to see Pompeo’s book “so outrageously misrepresent” Khashoggi’s life and work.
“His only offense was exposing corruption and oppression among those in power — work that good journalists around the world do every day,” Ryan wrote. “Jamal dedicated himself to the values of free speech and a free press and held himself to the highest professional standards. For this devotion, he paid the ultimate price.”
“It is shameful that Pompeo would spread vile falsehoods to dishonor a courageous man’s life and service — and his commitment to principles Americans hold dear — as a ploy to sell books,” Ryan added.
In November, the Biden administration determined that Mohammed, as a “sitting head of government,” was immune from a lawsuit filed in the United States by Khashoggi’s fiancee and a human rights organization he founded.
In a letter accompanying the submission, acting State Department legal adviser Richard C. Visek said that the decision was a legal one and that the department “takes no view on the merits of the present suit and reiterates its unequivocal condemnation of the heinous murder of Jamal Khashoggi.”
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Bethany Fackrell, a member of the Snoqualmie Tribe in eastern Washington, harvests cedar according to traditional sustainable practices in May 2020. (photo: Sabeqwa de los Angeles/Snoqualmie Indian Tribe Communications & Multimedia Design Dept.)
Three recent examples address historic wrongs and showcase a conservation vision guided by Indigenous values.
By the late 19th century, an emerging conservation movement began efforts to stem damage to the environment but didn’t concern itself with past and ongoing atrocities toward Native Americans. Like the government, it, too, perpetuated and embraced policies to take land and restrict Indigenous practices.
Today some land and wildlife managers, officials, and conservationists are beginning to recognize these injustices and appreciate the power of Indigenous methods, such as prescribed burns, to maintain resilient ecosystems. That goes to the highest levels: The U.S. Secretary of the Interior, Deb Haaland, and National Park Service Director, Charles F. Sams III, both the first Indigenous leaders in their positions, are now facilitating greater tribal involvement in overseeing federal public land—all of which was once Indigenous land. In June, for example, the Interior Department formalized a historic partnership with five tribal nations to co-manage Bears Ears National Monument in Utah.
Many nations are also now finding ways to regain some of the ancestral terrain they lost, such as by purchasing property, cultivating land donations, and partnering with conservation groups and agencies. While tribes have been reclaiming homelands since at least the early 1900s—and numerous obstacles and challenges still exist—the movement sometimes dubbed “Land Back” is picking up momentum, says Cris Stainbrook, president of the Indian Land Tenure Foundation. “Land forms the jurisdiction, really, for tribal nations,” he says. “The more inside their boundaries, the more solidified their sovereignty is.”
While each tribe has its own reasons for acquisitions, such as building much-needed affordable housing, many are acting with an expansive conservation vision at the center of their agenda. They aim to heal generational trauma, enhance their culture and language, and revive traditional hunting, gathering, and cultivation practices—all while protecting and restoring key habitats and wildlife species and often welcoming public visitors. From California to Kansas to New York, recent examples span the country. The three highlighted here showcase how returning land to tribal stewardship seeds a better future for everyone.
Return of the Range
When the Confederated Salish and Kootenai Tribes’ ancestors ceded more than 20 million acres to the federal government in the Hellgate Treaty of 1855, they believed their people would live in perpetuity on the 1.25-million-acre Flathead Reservation. But the United States changed its mind.
During the allotment era from the 1880s to 1930s, Congress turned over parcels of reservation land to non-Indigenous homesteaders and individual tribal members, undercutting tribal government control. By 1934 the tribes held only 30 percent of the original Flathead Reservation in western Montana. These losses upended their ways of life, including a symbiotic relationship with bison for food, shelter, supplies, and customs, says Tom McDonald, tribal council chair of the Confederated Salish and Kootenai Tribes (CSKT). He, like many people, calls the animals buffalo.
In this time, the great irony of the National Bison Range was born. Seeing the buffalo’s precipitous decline—the result of a federal strategy of encouraging the animal’s slaughter to push Native peoples off their lands across the West—a tribal member named Little Falcon Robe established a free-roaming herd on the Flathead Reservation. By the early 1900s it was the nation’s largest remaining one. But then allotment policies fractured the landscape and forced the animals’ sale.
Soon after, spurred by wealthy conservationists rallying to save the species, President Theodore Roosevelt took 18,800 acres of the Flathead Reservation (an action a federal court ruled unconstitutional in 1971) to create the National Bison Range, one of the nation’s first wildlife refuges, in 1908. To stock it, officials bought bison belonging to the reservation’s original herd and installed fences to keep wildlife in—and Native Americans out. “It was like an island in the middle of the reservation that the tribes weren’t welcome to,” says McDonald.
Now it’s theirs again. This spring the CSKT held a celebration of the transfer of the Bison Range from the Interior Department back to the tribes. The long-sought action was part of a larger deal in which the CSKT relinquished thousands of off-reservation water-right claims in exchange for a nearly $2 billion trust to improve its water supply.
Today the tribes’ natural resources department is managing the herd, using fire to maintain grasslands, eliminating invasive species, and restoring native ones. The work builds on the CSKT’s modern conservation leadership: They created the nation’s first tribal wilderness area, helped reintroduce locally extinct Trumpeter Swans that have spread beyond the reservation, and crafted a climate change plan.
The transfer creates new opportunities and challenges, says McDonald. People are moving to and visiting the region at historic rates, with tourists driving through the reservation to Glacier National Park. The CSKT aim to open a second Bison Range visitor center and entrance on the main road to Glacier to reduce the carbon footprint of exploring the refuge and to attract more people, whose fees are needed to help fund operations. And in contrast to the historic era of homesteaders flooding the West, the tribes now have a better chance to shape newcomers’ relationships to the landscape. They’ll share their history, culture, and ways of living—and how those practices carry into the future.
Buffalo have survived disease and slaughter, McDonald notes, and as drought- and heat-tolerant creatures, they’ll be resilient to climate warming. The CSKT will use stock from its herd to support other tribes restoring bison. Meanwhile, across the West, bison ranching is on the rise, and ecologists are embracing the species’ role in maintaining healthy prairie. The mammals graze grasses to varying heights, creating bird nesting habitat and water-filled wallows. McDonald is excited to share the message: “The time of the buffalo is coming,” he says. “They are a perfect symbol for endurance: that persistence will prevail.”
A River of Revival
Anne Richardson still recalls her father, then the Rappahannock Tribe’s chief, shedding tears 25 years ago when he entered the tribe’s new cultural center. “He said, ‘I never dreamed that I would live to see the day that we would have this back in our community—a place where we can gather and be together and be protected,’ ” she says.
Soon after, Richardson succeeded him as the fourth elected chief in her family of the Rappahannock in Virginia. Her ancestors were among the first Indigenous peoples of the United States to encounter Europeans. In 1608 when John Smith famously traveled the Rappahannock River, he documented Native villages as they volleyed arrows at him from the cliffs. By the 1640s illegal settlers encroached, and in the 1660s, forced removals began. More than 300 years later, in 1998, Richardson and others revived a long fight to restore sovereign rights to her people. In 2018 the tribe finally received federal recognition for the first time.
Earlier this year the tribe achieved another milestone: acquisition of 465 acres of woodlands and towering rock face overlooking the east side of Rappahannock River and its marshlands near Chesapeake Bay. The area, called Fones Cliffs, was once the site of at least three Rappahannock villages, and today it’s one of the most important nesting habitats for resurgent Bald Eagle populations on the East Coast. “Because the eagles are sacred birds to us, we don’t want to do anything to disturb them. We’re so glad they’ve come back,” Richardson says. “I believe that they’ve come back there waiting for us to return.”
Several organizations helped facilitate the return of the land, where an ancestral village called Pissacoack stood. The tribe worked with conservation groups for years to fend off development on the larger Fones Cliffs area. A small portion was protected as part of the nearby Rappahannock River Valley National Wildlife Refuge, the site of another village called Wecuppom, in 2019. Later, a landowner approached the tribe and offered to sell his parcel, and a close partner, the Chesapeake Conservancy, worked with donors and grant providers to strike a deal. The nonprofit transferred the fee title to the tribe and a conservation easement to the FWS. Now Richardson, the Conservation Fund, and the other partners are seeking a way to protect a developer’s larger parcel—which the fund bid on in a sale in a bankruptcy auction in November—and preserve the iconic cliffs forever.
Activities at Pissacoack are ramping up as the tribe prepares to open the land to the public, possibly as soon as 2023. They are planning a network of trails and a replica 17th-century village, Richardson says, “so people can learn the truth of how we lived and who we are.” She also is expanding their Return to the River program, which trains tribal youth about traditional ecological practices, culture, and skills such as canoeing. John Smith once wrote he could “walk” on the river’s fish. That density, Richardson notes, was thanks to her ancestors’ stewardship. Today the Rappahannock are advising scientists on work to restore river herring—a traditional subsistence food—that have declined so drastically that they’re now illegal to fish in Virginia.
During a land transfer ceremony in 2022, Richardson once again saw elders weep: Though the Rappahannock already had some land, this expansive ancestral home on the tribe’s namesake waterfront hits differently. “It’s a strong foundation for long-term sovereignty for the tribe—like a stake in the ground, so to speak,” Richardson says. Tribal youth didn’t cry at the event; they exuded excitement. “They know that this is really all being done for them,” she says. “They have a responsibility now to steward this land into the future.”
A Place of Their Own
At more than twice the height of Niagara Falls, Snoqualmie Falls is a breathtaking sight to some two million yearly visitors who come to relax, canoe, and hike 30 miles east of Seattle. But for the Snoqualmie people, one of Washington’s most popular attractions has a deeper meaning. It’s the site of their creation story, a place where tribal members pray, and a part of the ancestral lands where they’ve gathered plants, fished for salmon, and hunted deer and elk since time immemorial.
Since the late 1980s the tribe has fought to protect the land immediately around the falls from myriad threats, including development and desecration by visitors who may be unaware of its importance, says Jaime Martin, the tribe’s executive director of governmental affairs and special projects. As part of its push to gain more authority over the falls area and halt development, the tribe purchased the Salish Lodge … Spa and surrounding 45 acres in 2019.
More recently, Martin and other tribal members formed the Snoqualmie Tribe Ancestral Lands Movement to raise broader awareness of the region’s Indigenous history and provide visitors with steps to reduce their impact. With an increase in helicopters and drones hovering at low elevations at the falls, the tribe is also lobbying for airspace regulations.
In February the tribe announced another key acquisition: 12,000 acres of forest on the Tolt River, which flows into the Snoqualmie River. A vast majority of tribal members voted to approve the deal for a landscape they’ll exercise full control over. “There was a lot of support for this idea of being able to connect to this space under our own terms and really execute sovereignty,” Martin says.
Now known as the Snoqualmie Tribe Ancestral Forest, the parcel is near an area where the federal government had once promised the tribe a reservation but never provided one. The consequences of that failure reverberated through the 20th century: The tribe’s landless status made it easier for the U.S. government to terminate its federal recognition under destructive 1950s-era Indian assimilation policies and to continue violating its hunting and fishing treaty rights. It wasn’t until 1999 that the Snoqualmie people regained federal recognition, enabling them to secure a small reservation elsewhere. Today the tribe is one of the Snoqualmie Valley’s major employers.
With the acquisition of the Ancestral Forest, the tribe has hired a wildlife biologist and is creating a management plan and meaningful names for numbered and unnamed roads. The former tree farm had been densely planted and logged for more a century, and the tribe will work to thin its trees to restore healthy ecological function. Included in any plan, Martin says, will be goals to restore or maintain habitat for wildlife such as Marbled Murrelets, Northern Spotted Owls, and mountain goats.
Snoqualmie members of older generations who worked in the timber industry, partly to stay connected to their ancestral lands, can now take part in reviving the habitat, says Martin. Particularly exciting is the chance to restore and cultivate traditional medicinal and edible species, such as wapato and camas, that tribal members can gather as they see fit. “There’s healing that comes from this property,” she says, “not just in being able to control what happens there, but also getting to physically be out in the environment and be a part of caring for it.”
She hopes to see more land managers consult tribes on key issues that affect them and involve tribes in land stewardship. For the foreseeable future, access to the Ancestral Forest will be limited to tribal members. So many other Snoqualmie ancestral lands, including the falls and other popular areas, are enjoyed by others. This is a place just for them.
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