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Welcome to the Bogosity Podcast for the week of April 5 2026,
the podcast that takes its eyes off of you.
This is your host, Shane Killian. Let's laicize the News of the Bogus.
So we're already seeing the consequences of the Supreme Court's amazing ruling in Cox v. Sony.
In this case, it's the battle X Corp has been having to fight against the RIAA,
through their members such as Universal Music Group, Sony Music, EMI, and others,
accusing X of "breeding" mass infringement and charging them with contributory infringement.
But the Supreme Court just said that mere knowledge of infringement isn't enough;
you have to actively encourage or participate in it.
The case seems to track Cox perfectly:
they had sent X over 300,000 notices of infringement,
and X didn't immediately jump and ban the users they had accused.
Quote: "Twitter routinely ignores known repeat infringers and known infringements,
refusing to take simple steps that are available to Twitter
to stop these specific instances of infringement of which it is aware."
Two years ago, X won a victory when the court dismissed the claims of direct and vicarious infringement,
and partially dismissed the contributory infringement.
They can't be held liable for piracy just because they made their site easy to use,
which was basically what the music cartel argued.
Now, the count that survives is that X turned a blind eye to infringers,
especially ones with a blue checkmark.
X has now informed the Middle District of Tennessee about the Cox ruling,
arguing that the case fails the new Cox test. Quote:
"Cox even expressed contempt for copyright law, writing emails with comments like 'F— the DMCA.'
Despite these facts, the Supreme Court had no trouble
reversing the jury's contributory-infringement verdict,
because such facts were not 'evidence of express promotion,
marketing, and intent to promote infringement."
Elon Musk is in a similar situation, having once described the DMCA as a "plague on humanity."
As we pointed out at the time, acting on this basis would be a blatant First Amendment violation.
They requested a status conference and said,
"If the Court would prefer to address these issues at summary judgment, X is prepared to do so.
But both sides are now poised to spend millions of dollars in fees and expert expenses in the coming months
on issues that Cox makes irrelevant as a matter of law."
The music labels are standing firm, though, so it seems they're content to ignore the law and the Supreme Court.
Hopefully this is another case that just goes away, because it should.
The big content cartels wield too much unconstitutional power.
It's long since time they were cut off at the knees.
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And speaking of the First Amendment,
right-wing religious nutbars have had to be smacked down yet again
because they just can't get the idea that they're not supposed to use the government
to push their Bronze Age mythology!
The Satanic Temple just won a fight
to have the Ten Commandments monument at the Arkansas State Capitol removed.
Yes, they put up the Ten Commandments on yet another government building.
Personally, I'd put up a monument labelled "The Ten Commandments," but they'd be the Bill of Rights.
So the Satanic Temple offered to have their own monument displayed:
a 7½-foot-tall bronze statue of Baphomet,
with head and horns like a bull and a chest like Iggy Pop.
They brought the statue to the Capitol on a forklift
in protest of the Ten Commandments display.
An organizer said: "If you're going to have one religious monument up then it should be open to others,
and if you don't agree with that then let's just not have any at all."
The state rejected the offer of the Baphomet statue,
so they joined with the ACLU, the Freedom from Religion Foundation, the American Humanist Association,
and the Arkansas Society of Freethinkers in a lawsuit against the state.
The court ruled in their favor, saying that the monument, quote:
"conveys a message that the Christian religion is favored,
and the Display Act is coercive in violation of the Establishment Clause."
And the fact that the Satanic Temple was prohibited from displaying their own monument
was a violation of the Equal Protection Clause of the 14th Amendment.
The whole point of the Satanic Temple is to make points like this,
such as when they held a "pink mass" where same-sex couples
kissed over the grave of the mother of Westboro Baptist leader Fred Phelps,
a ritual which they said would turn her gay in the afterlife.
Chronicler Penny Lane (yes, that's her real name)
has said that this is basically their mission. Quote:
"They're not going to stop.
I think most politicians are just kind of like, 'If we wait this out, they'll go away.'
And I'm telling you, they're not going away. "
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So the Supreme Court heard oral arguments in Trump v. Barbara, the birthright citizenship case,
and it seems like it's far from a slam dunk for the Trump Administration.
In fact, what's the opposite of a slam dunk? Not a sports guy.
But even the conservative judges were very skeptical of the Administration's reading of the 14th Amendment.
Fair warning: this segment is much longer than normal,
so skip to the next timecode if you're not very interested in this issue.
The Constitution says you're a citizen if you're born in the U.S. "and subject to the jurisdiction thereof."
Trump is saying that illegals don't count as citizens
since they aren't subject to the jurisdiction of the United States.
Then, how can they be arrested and deported?
Sounds like a surefire loss to me.
But let's hear the Supremes themselves, as they question Trump's counsel D. John Sauer:
ROBERTS: You obviously put a lot of weight on "subject to the jurisdiction thereof,"
but the examples you give to support that strike me as very quirky,
you know, children of ambassadors, children of enemies during a hostile invasion, children on warships,
and then you expand it to a whole class of illegal aliens are—are here in the country.
I'm not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.
SAUER: No, but, of course, we're—we're in a new world now, as Justice Alito pointed out to,
where 8 billion people are one plane ride away from having a—a child who's a U.S. citizen.
ROBERTS: Well, it's a new world. It's the same Constitution.
KILLIAN: Ohh! Good answer, Roberts!
SAUER: What I do is invite the Court to look at the intervening step,
which is the enactment of the Civil Rights Act of 1866.
And, there, they didn't say "subject to the jurisdiction thereof."
There, it says "not subject to any foreign power."
KILLIAN: So? All that means is that they knew the language they needed to use
to limit it to freed slaves if that's what they really meant.
At any rate, the language of the Constitution overturns the language of any law made before or after.
Of course, one wrinkle is that there was no such thing as illegal immigrants
back when the 14th Amendment was passed.
Anyone could just come here and live, and nothing else mattered.
That makes things a little thorny, according to Alito:
ALITO: When particular problems pop up, lawmakers may enact a general rule.
When they do that, is the application of that general rule
limited only to the situations that they had in mind when they adopted the general rule,
or do we say, they adopted a general rule, they meant for that to apply to later applications that might come up?
Justice Scalia had an example that dealt with this situation.
He imagined an old theft statute that was enacted well before anybody conceived of a microwave oven,
and then afterwards someone is charged with a crime of stealing a microwave oven.
And this fellow says: "Well, I can't be convicted under this because a microwave oven
didn't exist at that time." And he dismissed that.
There's a general rule there, and you apply it to future applications.
And what we're dealing with here is something that was basically unknown
at the time when the Fourteenth Amendment was adopted, which is illegal immigration.
KILLIAN: And from Kagan:
KAGAN: And your whole theory of the case is built on that group.
You don't get to talking about undocumented persons until quite later and at much lesser,
you know, I think it's like ten pages to three pages or something like that.
So you can't really be going with Justice Alito's theory.
You must be saying that there is a principle that was there at the time of the Fourteenth Amendment.
KILLIAN: And even Gorsuch, arguably the most conservative justice of them all:
GORSUCH: Today, you can point to laws against immigration that are much more restrictive than they were in 1868—
we really didn't have laws like that, that we do today, until maybe 1880.
So, if somebody showed up here in 1868 and established domicile,
that was perfectly fine without respect to anything, any immigration laws. There they were.
And so why wouldn't we, even if we were to apply your own test,
come to the conclusion that the fact that someone might be illegal is immaterial?
KILLIAN: And Sauer didn't really have any answer.
I won't try to play it, because he just rambles on, talking around the issue and even engaging in word salad.
The name of his pain is Wong Kim Ark.
He was born in San Francisco in 1873 to Chinese immigrant parents,
and the government argued he wasn't a citizen because of the Chinese Exclusion Act of 1882.
The court ruled 6-2 that he was a citizen, based on three concepts:
The English common law concept of jus soli (or, right of soil) as the foundation for American citizenship law;
"Subject to the jurisdiction thereof" meant U.S. laws, not owing political allegiance to the U.S.;
and that the 14th Amendment codified this principle, which applies to almost everyone born on U.S. soil,
with a few very extreme exceptions such as children of diplomats.
KAVANAUGH: General, how should we think about the text of the Fourteenth Amendment
"subject to the jurisdiction thereof" as distinct from the different language of the Civil Rights Act of 1866,
which refers, as you know, to persons not subject to any foreign power?
Those texts are on their face different,
and the history that Justice Kagan referred to might have developed quite a bit differently
if the Fourteenth Amendment's text had used the phrase that was in the Civil Rights Act.
SAUER: Again, I, I, it... [stammering] it appears they preferred the sort of positive formulation,
"subject to the jurisdiction thereof," as opposed to "not subject to any foreign power. "
KAVANAUGH: Given Wong Kim Ark, one might have expected Congress to use
a different phrase if it wanted to try to disagree with Wong Kim Ark
on what the scope of birthright citizenship or the scope of citizenship should be.
And yet Congress repeats that same language, knowing what the interpretation had been.
So how are we to think about that?
KILLIAN: And Sauer rambled on without ever answering the question,
which Kavanaugh kept calling him out on.
The opposing counsel had a much easier time of things:
CECILLIA D. WANG: Ask any American what our citizenship rule is and they'll tell you:
Everyone born here is a citizen alike.
That rule was enshrined in the Fourteenth Amendment to put it out of the reach of any government official to destroy.
When the government tried to strip Mr. Wong Kim Ark's citizenship
on largely the same grounds they raise today, this Court said no.
Thirty years after ratification,
this Court held that the Fourteenth Amendment embodies the English common law rule.
Virtually everyone born on U.S. soil is subject to its jurisdiction and is a citizen.
My friend has now clearly said that the government is not asking you to overrule Wong Kim Ark.
That is a fatal concession because Wong Kim Ark's controlling rule of decision
precludes their parental domicile requirement.
The dissent understood that,
and the majority tells us six times in the opinion that domicile is irrelevant under common law.
The Executive Order fails on all those counts.
Swaths of American laws would be rendered senseless,
thousands of American babies will immediately lose their citizenship,
and if you credit the government's theory,
the citizenship of millions of Americans, past, present, and future, could be called into question.
All of this tells us the government's theory is wrong.
The only exceptions again at common law were ambassadors, people born on foreign ships,
and people who are born during periods of foreign occupation.
The purpose of the Fourteenth Amendment was to embrace that universal rule of birthright citizenship
to embrace and incorporate the common law exceptions
with the single additional exception of the preexisting exception
for tribal Indians that we had in the United States,
which is an analogous exception, and that's the closed set of exceptions.
KILLIAN: The other big case they looked at is Elk v. Wilkins from 1884,
which is a very uncomfortable piece of U.S. history.
John Elk was a Native American who left his tribe and moved to Omaha.
He tried to register to vote and was denied.
Elk sued, saying his rights as a citizen were abridged.
But this time, the court ruled 7-2 the other way,
because of the peculiar nature of Indian tribes.
Indian nations are separate authorities with their own allegiance, a separate political community.
So they weren't subject to the jurisdiction of the United States in the sense meant by the 14th Amendment.
Being born on tribal land meant that him moving to Omaha didn't give him citizenship,
and more than that, he couldn't even go through the normal process of naturalization!
Congress would have to extend citizenship to him.
So ironically, even though he was completely born on U.S. soil,
he had fewer rights than someone who moved here from another country!
This was all changed, by the way, by the Indian Citizenship Act of 1924.
The problem with extending Elk to illegal immigrants is that they aren't sovereign nations.
They don't have diplomatic immunity and are subject to the laws of the U.S. in every sense.
WANG: The Court says there are two ways to look at this:
either you look at it as a tribal member is like an ambassador
or you can look at it like there's a territoriality issue where people are born on tribal lands
and, therefore, they are essentially, I think he says, Justice Gray says at one point
we might as well be talking about someone who is born in Mexico.
GORSUCH: Well, there's a lot in Elk, and some of it's not terribly helpful for you, it seems to me, because
Justice Gray again, strikes again, says that they may be subject in some degree or respect to the United States.
So there's some jurisdiction. He says they are born with—in the geographic limits,
they are in a geographical sense born in the United States,
but because they are not completely subject to the jurisdiction of the United States
and owe allegiance distinct from the United States, that's what takes them outside.
And that language sure sounds a lot like the Solicitor General's presentation today.
WANG: To the contrary, Justice Gorsuch. I embrace that part of Elk v. Wilkins' holding.
The government tries to make it seem as though what sets the exceptions apart,
what defines the exceptions is that the government has some maximum theoretical power.
But that's actually not true, because, remember, there's always this background notion.
Whatever the parameters of the relationship between the United States Government
and tribal nations at that time of ratification,
there was this constitutionally distinct status of the tribes and tribal members,
and that's not true of foreign nationals.
If the government were right that the question is what's the maximum theoretical power the government has,
there would be no ambassador exception because,
of course, the United States could decide in some instance to go ahead and prosecute an ambassador.
There would be inter-sovereign comity considerations there.
That's how you define the exceptions. And as Wong Kim Ark says,
Elk v. Wilkins has no bearing on the question of foreign nationals.
Congress was trying to do the same thing with both the 1866 Act and with the 14th Amendment.
They wanted to capture the common law exceptions and the Indian tribal exception.
They started out with the two separate phrases, not subject to any foreign power, plus excluding Indians not taxed.
And as Justice Gray described it in his majority opinion in Wong Kim Ark,
they decided to switch to the affirmative phrase "subject to the jurisdiction" and—
ALITO: Yeah, well, do they mean the same thing? And wouldn't it be very odd if the citizenship test in the 14th Amendment
were broader than the citizenship test in the 1866 Civil Rights Act?
WANG: Sure. The Framers were trying to do the same thing with the language in both.
ALITO: Okay, so, if those who framed and adopted the Fourteenth Amendment
had wanted to limit the citizenship test to just those specific groups
that you concede fall outside the birthright citizenship rule,
why didn't they refer specifically to those groups?
WANG: I would say the—Wong Kim Ark tells us what the explanation is,
that the Framers of the Fourteenth Amendment, after overriding President Johnson's veto,
wanted to adopt a universal rule with a closed set of exceptions,
and they believed that "subject to the jurisdiction of the United States" did that.
The Citizenship Clause of the Fourteenth Amendment, again,
has a universal rule with a closed set of exceptions. It sets a floor.
So the Congress has under the Naturalization Clause
the power to expand citizenship to other people not covered by the Fourteenth Amendment
and, obviously, they have in many ways, but they can't go below that floor that the Constitution sets.
KAVANAUGH: I think Mr. Sauer acknowledged that, and you mentioned this in your opening,
that if we agree with you on how to read Wong Kim Ark, then you win.
So that could be just a short opinion, right?
Why would we address the constitutional issue given your argument on the statutory—
our usual practice, as you're well aware, of course, is to resolve things on statutory grounds and—
and not to do a constitutional ground.
WANG: Sure. You know, I think we obviously have these two paths to a win here.
We're happy to win on either or both of them.
I do think it would be prudent for the Court to reaffirm its decision in Wong Kim Ark
where it's a landmark decision about the definition of national citizenship in this country.
I just think it would be prudent for the Court to go ahead and reaffirm that.
But, of course, we're happy to take a win on any ground.
- KAVANAUGH: Thank you. [laughter] - WANG: Thank you.
KILLLIAN: Yeah, it seems pretty straightforward to me.
It didn't help that Sauer had to keep referencing other countries
that have nothing to do with our jurisprudence,
and the Justices didn't seem happy with him there.
If the conservative and institutionalist justices did want to rule in favor of Trump,
they'll have to pull some rabbit out of their hat that wasn't argued here in oral arguments.
But then, there are over 70 amicus briefs by my count filed on the docket,
so you can probably go through them and find arguments for whatever you want.
So we'll have to see, I guess. But it still seems like Trump doesn't have a leg to stand on here.
And now it's time to vesiculate this week's Biggest Bogon Emitter.
As of this podcast prep, gasoline prices in the US are just over $4 a gallon.
In my area, they're about $3.82.
But in California, they're a whopping $5. 89 a gallon!
Of course, now that I drive a Tesla, I don't have to worry about that.
I'm paying the equivalent of 67¢ a gallon. Sorry-not-sorry, suckers!
Anyway, Californians are naturally upset at these high prices at the pump.
Gavin Newsom, of course, is blaming Trump.
Quote: "Look at your cost at the pump the last few days: That was an act of the Trump administration."
Okay, so the war in Iran certainly isn't helping matters,
and will likely result in inflation across the board,
but that doesn't explain the fact why California's prices
are so bewilderingly high compared to the rest of the nation!
Aside from wasting well over $130 billion on a high-speed rail that's no nearer to being completed,
there's the 70.9¢/gallon gas tax. Combine that with the 18.4¢/gallon federal gas tax,
and that's almost 90¢ added on to the price!
Still, that doesn't account for the $1.89 difference from the national average.
Their state tax is only about 36.6¢ more expensive than the rest of the country.
California has been closing down refineries all over the state, so it's really a supply issue.
Newsom and his cronies want to put an end to gasoline power
and are working to limit it as much as possible.
Of course, that means making it more expensive as well.
So why doesn't he just come out and admit it?
I think we all know the answer to that:
while everyone likes the idea of a cleaner environment on its own,
forcing higher gas prices on people who can't afford EVs,
and without a sufficient charging infrastructure for them,
is hideously unfair to them.
Especially when the ones who do have EVs
are told not to charge them because of electricity shortages,
which happen because they shut down most of the state's nuclear power plants!
Things have gotten so bad that Chevron as of 2024
counts itself among the numerous companies that have moved their headquarters from California to Texas,
a mass exodus we've talked about on this podcast before.
Their president of downstream, midstream, and chemicals Andy Walz said, quote:
"California has had, I think, very poor energy policy.
They've put a climate agenda ahead of reliable and affordable energy,
and the consequences of that are that energy in California— any form of it— is unaffordable."
The state's Cap-and-Invest program, essentially a carbon tax, only makes things worse.
Companies must buy a yearly carbon allowance, which the state lowers every year.
They then funnel the money to their green energy cronies,
who do absolutely nothing to help the situation.
Great scam if you can get in on it.
Chevron is now threatening to close its remaining refineries in the state.
The Trump Administration has tried to alleviate the problem by drilling off the California shoreline,
but Newsom has done everything he can to block the oil coming in from it.
So, yes, Newsom, the man bleating about how Trump is to blame for high gas prices,
is literally fighting him in court to stop him increasing the supply and thus lowering the price.
According to the Department of Energy, quote:
"California once supplied nearly 40% of U.S. oil production,
but decades of radical state policies targeting reliable energy sources
have driven a decline in domestic output while fuel demand remains among the highest in the nation.
Today, more than 60% of the oil refined in California comes from overseas,
with a significant share traveling through the Strait of Hormuz—
presenting serious national security threats."
As Michael Shellenberger pointed out, quote:
"California made itself into an energy island,
isolated from the continent's abundant oil and natural gas resources
by regulatory choice rather than geographic necessity.
Where California used to be one of America's largest oil producers,
most of the state's crude now arrives by sea.
California thus resembles Asian nations
that lack domestic hydrocarbons and depend on seaborne imports through chokepoints,
except that California sits atop a continent with the world's largest combined oil and natural gas production."
Screwing everything up and blaming others might as well be the new California state motto!
What would that be in Latin? Let's see, res perturbare alios culpare.
There you go, California! Have that for free.
So all of that makes Gavin Newsom this week's Biggest Bogon Emitter.
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And now let's overmisinterpretationalisticalize this week's Idiot Extraordinaire.
And it's another one for Donald Trump,
although I should probably thank him for showing once again
how war always results in the exact opposite of what it's supposed to.
In this case, it was supposed to prevent Iran from developing a nuclear weapon.
Iran's previous Supreme Leader, Ayatollah Ali Khamenei,
had issued a fatwa banning nuclear weapons or even research into them.
As we covered over the years, the claims made by everyone from Hillary Clinton to Barack Obama
that Iran was developing nukes just didn't hold water.
Everything was consistent with them building reactors,
which should sound familiar: this is exactly what they did with Iraq.
And the thing is, Muslims don't kid around when it comes to fatwas.
That's not a political game with them.
That's serious business, with major penalties for anyone who violates them.
But know, Khamenei's dead and Iran has got to be thinking
that some way to protect themselves from an insane superpower wouldn't come amiss.
In fact, Trita Parsi of the Quincy Institute for Responsible Statecraft said, quote:
"The nuclear fatwa is dead. Elite opinion as well as public opinion has shifted dramatically on this,
which shouldn't be surprising since Iran has been bombed twice in the midst of negotiations
by two nuclear-equipped states."
So yes, the call to develop nuclear weapons has grown louder.
When Israel, a nuclear power, ran a military operation that killed several of the country's leaders,
public perceptions about nukes began to shift.
Then, Trump used his bunker-buster to completely eliminate any possibility of Iran developing a nuke...
and then less than a year later started waging war against them because they were going to get a nuke any time now.
Iran has stockpiles of HALEU, or High-Assay Low Enrichment Uranium,
which the news stories keep wrongly calling "highly enriched uranium."
But while HALEU is used in modern nuclear power plants as well as medical reactors,
it could be enriched further into weapons-grade uranium
if the new Supreme Leader, Mojtaba Khamenei, reverses the fatwa.
Mojtaba has vowed to avenge the death of his father and others killed in the war,
although he hasn't yet spoken of anything nuclear.
But domestically, public pressure seems to be rising.
Commentator Nasser Torabi said, quote:
"We have entered a new phase. After this war, Iran will be recognized as a global superpower.
We must take measures to produce or possess nuclear weapons."
Opposition to nuclear weapons on religious grounds and by fear of reprisals
have a tendency to evaporate once the reprisals come anyway.
And there have to be a lot of other countries looking at Iran and wondering if they're next,
and if they should get a nuclear bomb as a deterrent.
In fact, in 2018, Saudi Crown Prince Mohammed bin Salman said, quote:
"Without a doubt, if Iran developed a nuclear bomb, we would follow suit as soon as possible."
Maybe we have to reprise the old Tom Lehrer song, "Who's Next?"
Or just revive the old Archer meme:
You want more nukes? Because this is how you get more nukes.
But then, anyone who paid any attention at all to recent history understood that.
So all of that gives Trump yet another Idiot Extraordinaire.
Well, that wraps up this "Pray to J I did the same-o same-o" edition of the Bogosity Podcast.
I hope you enjoyed it; if you did, please go to donate.bogosity.tv for several ways to support,
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Subscribe at the Discord, Patreon, or SubscribeStar and you can listen early and ad-free.
Thank you for listening. Until next time, here's a quote from Smedley Butler:
"At all these conferences, lurking in the background but all-powerful,
just the same, are the sinister agents of those who profit by war.
They see to it that these conferences do not disarm or seriously limit armaments."
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