Kafka's The Trial "Was Not Supposed to Be an Instruction Manual"
By Eugene Volokh · Oct 9, 2026, 4:30 PM CDT
From Fifth Circuit Judge Priscilla Richman, concurring in the 10-7 vote to deny rehearing en banc in Evans v. Garza (for more on last year's panel opinion, see here ): The statute under scrutiny made it a crime to disseminate a photograph of a person in a restroom under certain circumstances. The photo that Michelle Evans tweeted undoubtedly punctuated her political speech that accompanied the pho
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Layer 1 · Claims & fact checks
AI analysisLayer 3 · Reporting analysis
AI analysisAppeal to AuthorityThe author invokes a Supreme Court Justice’s statement to bolster a viewpoint on gender identity, without linking it directly to the legal issue at hand.
Loaded LanguageDescribes the district attorney’s actions with a pejorative metaphor, signaling bias.
Analogical ReasoningUses a literary reference to frame the legal dispute as absurd, rather than providing legal analysis.
Straw ManPresents the concurring opinion as intentionally violating the First Amendment, which may mischaracterize the judge’s actual reasoning.
Speculative QuestioningPoses rhetorical questions that suggest conclusions without providing evidentiary support.
Context
AI analysisMissing context
The article does not provide the actual text of the Fifth Circuit’s majority opinion, the specific legal standards applied (e.g., strict scrutiny analysis), or the outcome of Evans’s preliminary injunction request. It also omits any discussion of lower‑court rulings, the district court’s reasoning, or the broader legal landscape of privacy versus speech in public restrooms.
Important context
Understanding the legal standards for privacy in public spaces, the scope of Texas Penal Code § 21.15(b), and precedent cases on First Amendment protection of photographic speech is essential to evaluate the arguments presented. Additionally, the composition of the Fifth Circuit panel and the procedural posture (preliminary injunction) affect the weight of the concurring and dissenting opinions cited.
Opinion vs. reporting
AI analysisThe piece blends factual reporting of the case’s procedural history with extensive opinionated commentary, rhetorical questions, and literary analogies. While it presents some verifiable details (court votes, statutory citation), much of the text consists of the author’s interpretive analysis and speculative scenarios rather than neutral reporting.