Characterizations, editorial comments, abbreviations and shorthand references are solely PPA Highlights author Barnaby Zall’s, and do not necessarily represent the views or positions of the Public Policy Legal Institute, the First Tuesday Lunch Group or their members and participants. Suggestions and corrections welcome.
Apologies for Any Confusion:
Please note that Vox PPLI, the blog of the Public Policy Legal Institute, has been having computer issues recently; our over-worked and underpaid IT staff believes that the site has been infiltrated by Artificial Intelligence (“AI”) programs. The infiltration began when we sought the latest pictures of all FEC Commissioners on Saturday, April 1, and we received some very odd responses (see examples above). Officials of the FEC’s Office of General Counsel, when asked for more information, explained that “foreign influences” have affected their computers. “It wasn’t Trump or the Russians this time,” they reported. “Instead, it looks like someone in our offices was trying to use Canva, the giant graphic design company from Australia, which recently began offering to use AI as part of the design process. That picture you received? [Editor: Picture is reprinted above.] It was done by someone asking Canva’s new AI Image Generator for a picture of all current Commissioners in wrestling costumes. You can tell we at OGC didn’t do it, because they only listed five. We can count higher than five over here. Anyway, we hope to have our systems purged and back in service sometime this summer.” We apologize for any confusion caused by this image processing problem.
Are Democrats Behind the Pro-Trump Twitter Bots? Writer Merrill Matthews from the Institute for Policy Innovation in Dallas, Texas, writes in The Hill that Democrats are the only group likely to have the tech smarts, funding and motivation to create and manage the hundred of thousands of Twitter auto-posting “bots” who have posted pro-Trump messages. More sophisticated analysis from Gizmodo. Fly in the ointment for this theory is that there have been thousands of pro-Trump Twitter bots since 2016, long before Democrats began to seriously jump into Republican campaigns ($44 million invested in Republican primaries in 2022). But the question being bandied about these days is whether the innovation is actually the entrance of Dems into the bot-bonanza when they weren’t earlier. If this partisan intervention is accurate, does it mean that campaign counsel have solved the legal problems that plagued Clinton’s “dossier” strategy in 2016?
Headline in The Hill About IRS Taxpayer Advocate’s Analysis of $80 Billion Service Appropriations Boost Can Be Misconstrued: The National Taxpayer Advocate’s office, part of the Internal Revenue Service, represents the interests of taxpayers in a fair and efficient tax system. An article in The Hill was headlined “Taxpayer advocate urges Congress to reconsider $80 billion IRS funding boost,” but that was misleading. The NTA was not echoing recent criticism of the $80 billion funding increase because it was too big, but it was echoing related criticism that the funding was too heavily weighted toward enforcement at the expense of answering the telephone and similar taxpayer assistance. The rest of the Hill article, however, accurately recounted and supplemented the NTA’s actual position, as described in an NTA blog post:
For at least the past several decades, the IRS has been chronically underfunded, rendering it unable to deploy current technology or hire sufficient staff to meet taxpayer needs. And then between 2010 and 2020, funding for the IRS was reduced on an inflation-adjusted basis by nearly 20 percent. Last August, Congress tried to solve these problems by giving the IRS nearly $80 billion over the next ten years through the Inflation Reduction Act of 2022 (IRA) as a supplement to the funding it receives through the annual appropriations process. That’s good news. But there is also some bad news: The IRA allocated the funds in a manner that does not address the needs of U.S. taxpayers, including individuals, families, and businesses.
the top tax administration priority now should be to improve taxpayer service, particularly after the struggles of the last few years, and to do that, the IRS needs more funding in the Taxpayer Services and BSM accounts. Second, the IRS must strike an appropriate balance between serving taxpayers and enforcing the law. In its annual appropriations acts, Congress is currently funding enforcement and taxpayer service at a ratio of about 2:1. The IRA allocation alters this delicate balance. It funds enforcement and taxpayer service at a ratio of more than 14:1.
Is Feeding the Poor Outside A Library “Free Speech?” The University of Houston’s Houston Public Media reports that Food Not Bombs, an organization that feeds the poor outside the Houston Public Library, has filed a federal First Amendment challenge to the city’s Charitable Feeding Ordinance. Houston has an approved area for feeding the public, but Food Not Bombs did not want to abandon the location where it has distributed food for two decades. The City noted that “Recently, there has been an increase in the number of threats and violent incidents directed at visitors and employees coming to the Houston Public Library downtown. Parents and families have expressed no longer feeling comfortable visiting the library or holding special events.” In Food Not Bombs v. Ft. Lauderdale, 901 F.3d 1235, 1238 (11th Cir. 2018), an 11th Circuit panel held that a similar program in Florida was expressive speech because FLFNB shared food in order “to convey that all persons are equal, regardless of socioeconomic status, and that everyone should have access to food as a human right.” Id. at 1240–41.
The 11th Circuit panel then applied the second part of the Supreme Court’s analysis in Spence v. Washington, 418 U.S. 405, 410–411 (1974), whether a “reasonable person would interpret FLFNB’s food sharing events ‘as some sort of message.’” Id. at 1242.
We held that five circumstances surrounding FLFNB’s events would lead a reasonable observer to discern a message. First, FLFNB wasn’t just a group of acquaintances eating together in a park — it adorned its events with tables and banners and distributed literature explaining its political message. Second, the events had “social implications” because they were open to all comers. Third, FLFNB held its food sharings “in Stranahan Park, a public park near city government buildings.” Public parks, the panel noted, are “historically associated with the exercise of First Amendment rights.” (citation omitted). Fourth, treatment of the homeless was an issue of substantial public concern and discussion in the Fort Lauderdale community. Indeed, the City had held a public workshop on the issue, and local media had covered “the status of the City’s homeless population” for years. Fifth, the sharing of food with others in order to communicate a message was a tradition that “date[d] back millennia.” [Id. at 1243.] All of these circumstances combined to “put FLFNB’s food sharing events on the expressive side of the ledger.” [Id. at 1242.]
Nevertheless, the 11th Circuit substantially narrowed the grounds on which food sharing could be grounds for a constitutional challenge to a neutral ordinance, eventually settling on an “ as-applied narrow tailoring inquiry” under an “exacting scrutiny” standard of review. Because the Ft. Lauderdale rules were both without any standard for judging tailoring and were over-broad, especially in light of nearby Orlando’s much more precisely-drawn similar rules, permitting some food sharing.
So now Houston’s branch of Food Not Bombs claims the benefit of the Ft. Lauderdale opinion to challenge the Houston Library feeding ban. Houston’s Mayor, newly-elected Sylvester Turner, responded: “”We want the library to serve as a safe, inclusive place for all to come and visit. That’s why we are providing a dedicated, alternative charitable food service at 61 Riesner St. This location has the infrastructure and amenities needed to provide services and food to Houstonians in need. By shifting food services to an alternative location, we can maintain the integrity and historic nature of Houston’s Public Library while serving all Houstonians with the dignity they deserve.” FNB said they didn’t accept the new location because it was near a police station.
What’s the takeaway for public policy law? Precision in drafting and maintaining First Amendment litigation is more important than ever. Details matter, and so does litigation design.
Washington State Supreme Court Slams Attorney General For Claiming Fraud by Charities, Citing First Amendment Harms to TVI, Backer of “Value Village” Stores: As noted last May, in Washington v. TVI, the Washington State Attorney General petitioned the state’s Supreme Court for review over “an issue of first impression involving the significant First Amendment implications of a state CPA enforcement action against a for-profit company misrepresenting charitable interests.”That question, put another way, was when a for-profit company is the public-facing solicitation mechanism for charitable organizations, can a powerful state Consumer Protection statute over-ride the First Amendment right to charitable solicitation? As “Value Village,” the name used in most U.S. states, TVI operates for-profit thrift stores but donates on average $150 million annually to well-known charities such as Big Brothers Big Sisters; it puts up lots of posters informing consumers of the relationships between the for-profit and the charities. The trial court found that consumers would be deceived as to whether the stores were themselves charitable, which would violate the State’s sweeping Consumer Protection laws; the appeals court reversed on general First Amendment principles.
In Washington v. TVI, No. 1004931, Supreme Court of Washington, Feb. 23, 2023, the Washington Supreme Court upheld the appeals court and held that the First Amendment protected TVI’s right to its chosen business model and charitable solicitation methods. The Court first noted that “Charitable solicitations are fully protected by the First Amendment, so the State must satisfy “exacting” or “strict” scrutiny to justify content-based restrictions.” It didn’t specify which standard of review applied, because it said that TVI’s actions were protected under either. The Attorney General only challenged TVI’s marketing methods, and argued those were commercial in nature. He argued that TVI’s marketing so intertwined commercial and charitable solicitation that all the marketing had to be deemed commercial. The Supreme Court flipped that argument around and said that because the marketing inextricably intertwined protected and lesser-protected speech, under Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 764 (1976) (even commercial speech is protected against unwarranted government regulation), it would use the charitable solicitation standard, citing Village of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 628, 632 (1980), and Riley v. Nat’l Fed’n of Blind of N.C., Inc., 487 U.S. 781, 789 (1988).
The Attorney General tried to argue that TVI “could” use solely commercial marketing methods, but the Supreme Court said that the test was whether it was, in fact, using those or an inextricably mixed set of both commercial and charitable speech. “[U]nlike most other for-profit companies, it is impossible for TVI to advertise its business model without engaging in charitable solicitation. We will not force TVI to choose between the First Amendment’s protections for charitable solicitations and the First Amendment right to advertise a lawful business.” Slip op. at 22.
Washington is an unusual state in that it has both a sweeping and powerful consumer protection statute and a tradition of its Supreme Court deferring to its Attorney General on such cases. It also does not have a strong tradition of recent First Amendment activism; in fact, it is very much a “woke” State government by policy, including specific equity and inclusion rules established by the state Supreme Court. Further, the current Washington Supreme Court is decidedly different in ideology and temperament from the current U.S. Supreme Court. But here, the Washington Court decided the case before it on standard, traditional U.S. Supreme Court First Amendment doctrine. Thus, TVI is a rara avis in summarily slapping down the Attorney General, but only by applying black letter law from many years ago.
Justice Jackson Argues That Munsingwear Vacaturs Are Too Easy to Get, and Should Only Be Available In “Extraordinary” or “Exceptional” Cases: Most media coverage of the Supreme Court’s decision in Chapman v. Doe, No. 22-312 (March 20, 2023), talked about the Supreme Court’s GVR (grant cert petition, vacate the lower court ruling, and remand to the lower court for further consideration of the case) of a challenge to the refusal to grant judicial relief permitting an abortion without parental consent (not really a topic for FTLG). There is, however, another interesting aspect to the decision: Justice Ketanji Brown Jackson’s dissent to the GVR was not based on the substance of the case, but on the request for Munsingwear relief. Slip op., at 1. And she, alone on the Court, got it right.
Munsingwear is the ultimate form of vacatur, striking all of the lower courts’ opinions, and wiping the slate clean for relitigation when the losing party would otherwise lose any right to re-litigate a case which might otherwise set a dangerous precedent. Now Justice Jackson believes the Court has been much too generous in granting Munsingwear relief. Chapman was a joint request by the parties for Munsingwear relief. Slip op., at 2. And there’s lots of interesting procedural law in her explanation, including: “Chapman contributed to the mootness of this case insofar as she stipulated to its dismissal. And it is not unfair for us to now deprive her of the benefit of this bargain, since this form of relief is discretionary, and Chapman had other viable options including relying on her original request that the Court grant a petition for certiorari, vacate the Eighth Circuit’s judgment, and remand in light of Dobbs—our ordinary process for addressing intervening developments in the law.” Id.
This is actually a good jurisprudential discussion, and comes amidst recognition that Justice Jackson is maturing on the bench, invoking a traditional, indeed foundational, standard of review at the Court. As the late U.S. Solicitor Rex Lee used to explain: “the Court does not sit to decide cases; it sits to ‘protect the harbor,’” by which he meant that the Court prizes above all else the uniformity and predictability of law across the country. Munsingwear vacatur is an equitable remedy, which by its nature can disrupt the Court’s search for uniformity in the law. Where the parties have colluded in mooting a case, the Court should be reluctant to let a friendly decision become a nationally-binding precedent. As Justice Jackson ably noted: “Injudicious awards of Munsingwear vacatur can also incentivize gamesmanship, as it, for example, enables parties to disclaim potential mootness before the lower court, and, if unsuccessful on the merits at that stage, argue mootness on appeal to eliminate the adverse decision through vacatur.” Slip op., at 3-4, and *.
You Say Dissental, I Say Concurral, And Here’s An Explainational: The Florida Bar has a helpful post giving the history of the addition of “-al” at the end of various legal terms in opinions offered since 2015. According to that article, then Chief Judge of the Ninth Circuit Alex Kozinski first started using the term “dissental” to mean dissents from denied requests for en banc review, and it just grew from there.
Supreme Court Asked to Review Second Circuit Decision Involving Whether New York’s Attempts to “Financially Blacklist Their Political Opponents” Violate the First Amendment: We have recently seen several challenges to governments’ attempts to do indirectly what they could not do directly. See, e.g., Doe v. Bonta discussion in January’s Public Policy Advocacy Highlights, where the District Court judge ignored the Supreme Court’s direction in Americans for Prosperity Foundation v. Bonta, a 2021 decision protecting donor privacy against release by the California Attorney General, to permit the California Attorney General to disclose information to “bona fide” third parties.
Last September, Public Policy Advocacy Highlights discussed another such case: a Second Circuit decision reversing a District Court dismissal of a First Amendment challenge to the New York State Superintendent of Financial Service’s attempt to dissuade insurers from participating in a tax-exempt organization’s offering insurance coverage that would cover intentional violations of state law. Maria Vullo, the Superintendent, issued a press release stating that “business can lead the way and bring about the kind of positive social change needed” and demanded that insurers stop offering coverage through the tax-exempt organization. Slip op. at 11. This scenario becomes more believable when you learn that the tax-exempt organization is the National Rifle Association, and the insurance coverage “provided coverage for losses caused by licensed firearm use, including criminal defense costs resulting from using a firearm with excessive force to protect persons or property, even if the insured was found to have acted with criminal intent. In other words, it insured New York residents for intentional, reckless, and criminally negligent acts with a firearm that injured or killed another person.” Slip op. at 6-7.
The American Civil Liberties Union, no friend of the NRA, filed an amicus brief in the 2018 District Court case, written by First Amendment expert David Cole, supporting the NRA’s First Amendment position. The ACLU told the District Court:
“Political advocacy organizations throughout the United States, including the American Civil Liberties Union, rely on access to a number of basic services in order to function. Many of these services are highly regulated, including insurance, banking, legal services, and accounting.
In this case, Plaintiff National Rifle Association of America (“NRA”) has alleged that the New York Department of Financial Services (“DFS”), the Department’s Superintendent Maria Vullo, and Governor Andrew Cuomo have carried out a “campaign to chill the political speech of the NRA and other so-called ‘gun promotion’ organizations by leveraging state power to punish financial institutions which maintain business arrangements with the NRA.”… If true, those allegations represent a blatant violation of the First Amendment. Although public officials are free to express their opinions and may condemn viewpoints or groups they view as inimical to public welfare, they cannot abuse their regulatory authority to retaliate against disfavored advocacy organizations and to impose burdens on those organizations’ ability to conduct lawful business.*
The District Court agreed and held that the NRA had properly pled a First Amendment claim. Nat’l Rifle Ass’n of Am. v. Cuomo, 350 F. Supp. 3d 94, 112 (N.D.N.Y. 2018) (“The Guidance Letters and the Cuomo Press Release indisputably are directed at the NRA and similar groups based on their ‘gun promotion’ advocacy. However controversial it may be, ‘gun promotion’ advocacy is core political speech entitled to constitutional protection. The Guidance Letters and Cuomo Press Release’s comments directed to this protected speech provides a sufficient basis to invoke the First Amendment on these claims.”)
The Second Circuit reversed and remanded, saying “the First Amendment does not impose a viewpoint-neutrality requirement on the government’s own speech; a government official has the right to speak for herself (and her agency) and to select the views she wishes to express. Pleasant Grove City v. Summum, 555 U.S. 460, 467-68 (2009) … Under the government speech doctrine, public officials are generally free to favor certain views over others when they speak. Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 207-08 (2015).” Nevertheless, “although government officials are free to advocate for (or against) certain viewpoints, they may not encourage suppression of protected speech in a manner that ‘can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.’” Slip op. at 26.
The Second Circuit decided that the official documents, including Vullo’s press release, were government speech but not facial threats, and could be construed as attempts to protect financial institutions whose health she oversaw. Slip op. at 31, 33. That was enough to support qualified immunity against First Amendment claims, leading to the dismissal of claims against Vullo.
There was surprisingly little media coverage about this issue, possibly because it is a convoluted discussion of complex issues such as government speech and banking regulation. New York University’s First Amendment Watch, however, had a nice discussion of the legal and political issues involved, including such evidentiary notes as then-New York Governor Andrew Cuomo’s short tweet boasting of his political motives: “If I could have put the NRA out of business, I would’ve done it 20 years ago. I’ll see you in court.” As Gov. Cuomo noted, this is a significant case for tax-exempt organizations, particularly those who promote positions that might put them at odds with government officials.
Now, in a Petition for Certiorari filed in NRA v. Vullo, No. 22-842, that question has been sharpened to ask:
Does the First Amendment allow a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy?
The Petition, authored by eminent First Amendment scholar Prof. Eugene Volokh of UCLA Law School, begins its introduction forcefully:
The Second Circuit’s opinion below gives state officials free rein to financially blacklist their political opponents—from gun-rights groups, to abortion-rights groups, to environmentalist groups, and beyond. It lets state officials “threaten[ ] regulated institutions with costly investigations, increased regulatory scrutiny and penalties should they fail to discontinue their arrangements with” a controversial speaker, on the ground that disfavored political speech poses a regulable “reputational risk.” It also permits selective investigations and penalties targeting business arrangements with disfavored speakers, even where the regulator premises its hostility explicitly on an entity’s political speech and treats leniently, or exempts, identical transactions with customers who lack controversial views. In sum, it lets government officials, acting with undisguised political animus, transmute “general backlash” against controversial advocacy into a justification for crackdowns on advocates (and firms who serve them), eviscerating free speech rights.
Two legal experts filed an amicus brief arguing against the Second Circuit’s belief that the regulator’s informal admonition, even if buttressed by the Governor’s direction to her to attack his political opponents, was not a sufficient threat to endanger the tax-exempt organization. “The Court should grant the Petition because the court below erred in finding that the lack of explicit binding language or threats from the New York Department of Financial Services in its guidance letters meant that no reasonable regulated firm would consider itself bound by those letters. The reality of banking and insurance regulation is that firms frequently feel that they risk sanction if they do not comply with nominally non-binding guidance.”
It’s always difficult to predict whether the Supreme Court will grant a cert petition, even when there are interests of millions of tax-exempt organizations and regulated industries at stake. There is a lot of legal firepower behind this Petition, however, and the evidentiary record is crystal clear that the decision was politically-motivated. In other words, the case is teed up for a decision. The crucial question will be whether the Court wants to wade in on government speech issues yet again.
Jason Torchinsky, Steve Roberts and Other Holtzman Vogel Attorneys Write Article in Harvard Law Journal About “Sore Loser” Laws That Could Block Trump From Running As an Independent If He Loses the Republican Primaries: “If You Ain’t First, You’re Last:” The same day that Jenna Ortega hosted Saturday Night Live, long-time FTLG participant Jason Torchinsky appeared with Michael Smerconish on CNN to discuss “Sore Loser” laws that might bar Trump from running as an independent or third party candidate if he loses the Republican nomination. Jason’s star turn follows publication of a Harvard Journal of Law and Public Policy article co-authored by Steve Roberts (co-Cat Herder of the First Tuesday Lunch Group), Dennis Polio, and Andrew Pardue, all from Holtzman Vogel. The “sore loser” article’s conclusion: in 28 states, Trump could not run again if he loses the primaries, so he could potentially collect only 81 electoral votes, far less than needed to prevail. “As a result, it would be effectively impossible for him to win the general election as a third-party or independent candidate if he does not win the Republican nomination.”
Nina Jankowicz, Former “Disinformation Czar,” Describes Harassment Following Dissolution of Homeland Security’s Disinformation Governance Board: Politico sympathetically profiles the efforts of Nina Jankowicz, last seen channeling Mary Poppins tunes into an ode on regulating information, to avoid the consequences of her foray into government censorship, including a “self-styled citizen-journalist who repeatedly stalked her, doxing and recording her without her consent”, subpoenas from the House Judiciary Committee, and the release of internal government emails by Sen. John Hawley. “When she finally was notified that DHS would pause the board, she was offered an opportunity to remain in the department but felt she had no choice but to leave. ‘I said ‘I’m not going to stay if I can’t speak to media,’” she said. Jankowicz also questioned the commitment to the project because they’d “abandoned” it so quickly.”
A New Teneo Rises, to “Ensure Human Flourishing:” According to a new group using the name, “Teneo” means “Grasp. Endure”, not the consulting firm formed to be the base for many in the Hilary Clinton orbit after the 2016 election. The two firms are miles apart, but each is defined by a singular individual. The person currently being vilified as the Devil Incarnate behind the new Teneo Network is Leonard Leo, head of the Marble Freedom Trust, and ProPublica is exercised about him and it. “Leo revealed his latest battle plan in the previously unreported video for the Teneo Network, a little-known group he called ‘a tremendously important resource for the future of our country.’ Teneo is building what Leo called in the video ‘networks of conservatives that can roll back’ liberal influence in Wall Street and Silicon Valley, among authors and academics, with pro athletes and Hollywood producers. A Federalist Society for everything.” In other words, Leo plans to do more of what he’s been doing for decades, only less legally-oriented. And some people find that troubling.
Dean Jenny Martinez Rescues Stanford Law School From “Well-earned Chaos and Disrepute:” Stanford Law School has been embroiled in controversy since students and administrators shouted down visiting Fifth Circuit Judge Stuart Kyle Duncan, preventing him from speaking to the campus Federalist Society on March 9. Retired Northwestern Law Prof. Steven Lubet had one of the more balanced summaries in The Hill: “The judge, the student protesters and an on-scene administrator all played to type, exhibiting arrogance, intolerance and irresponsibility, respectively, that combined to make the afternoon a fiasco for all concerned. …Going forward, perhaps we can hope that students will learn to exercise better judgment. We ought to expect it from administrators. We must demand it from judges.”
After an initial stumble, SLS Dean Jenny Martinez rallied, earning plaudits from David Lat, who pretty much lit the fuse to the widespread explosive reaction: “This is what leadership looks like.” Dean Martinez issued a well-tuned, reasoned and welcome ten-page-with-footnotes Con Law professor-style letter response to the criticism from all sides. “I respond below to many of the questions I continue to receive about why I apologized to Judge Duncan, why I stand by that apology, and why the protest violated the university’s policy on disruption. I articulate how I believe our commitment to diversity and inclusion means that we must protect the expression of all views. And, I outline some of the steps the school will be taking in the wake of this incident, including the adoption of clearer protocols for managing disruptions and educational programming on free speech and norms of the legal profession.” Not everyone was so pleased. Worth a read.
Washington Post Asks: “Did voter fraud kill Edgar Allan Poe?” New book suggests that the long mystery of how the famous author died can be solved by his being ‘‘cooped’ — an election-rigging scheme at the time that involved snatching someone from the streets, confining and perhaps drugging him, then trotting him out to vote again and again.” Cooping or similar shaving and voting schemes seems to be something reported again and again throughout American history. It appears that Tammany Hall-style (that is, New York City) political machines would exact harsh penalties from those who refused to participate when “asked.” Or, as the New York Times reported in 1964:
BIG Tim Sullivan, a tough Tammany Hall buff alias Dry Dollar Sullivan (he was once found drying off a revenue stamp from a brewery keg under the impression it was a dollar), argued that repeaters had to have whiskers:
“When you’ve voted ’em with their whiskers on, you take ’em to a barber and scrape off the chin fringe Then you vote ’em again with the side lilacs and a mustache. Then to a barber again, off comes the sides and you vote ’em a third time with the mustache. If that ain’t enough and the box can stand a few more ballots, clean off the mustache and vote ’em plain face. That makes every one of em good for four votes.”
NY Times: “Artificial intelligence isn’t just coming soon to the 2024 campaign trail. It’s already here”: While social media erupts over faked pictures of the Pope wearing a “puffer jacket,” and Smithsonian opines about global trickery, as the first item in this month’s Public Policy Advocacy Highlights demonstrates, at this point only more sophisticated users and systems are likely to create havoc on the campaign trail, as prophesized by the New York Times’ Shane Goldmacher. For Vox PPLI’s April Fool’s edition this year, we used the top free AI image generating systems, as ranked by Gizmodo, to create images of the FEC Commissioners in wrestling costumes, and none of them could figure out that the FEC had five Commissioners, and who they were. Nor could any of them produce actual pictures of the Commissioners and superimpose them on the figures they created. Much more expensive and sophisticated systems, not to mention new occupations such as “AI whisperer” at salaries above $300,000, will likely be needed to create even the most rudimentary image sufficient to fool a lot of people. We’re not alone in believing that most people won’t be fooled by most ChatGPT output; as UC Berkeley Law Prof. Owen Kerr points out: “Because if the test is about what normal observers would think, it seems to me that no one who tries ChatGPT could think its output is factually accurate.”