The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Free Speech

Hotel's Defamation Lawsuit Against Rabbi Shmuley Boteach Over Anti-Semitism Allegations Can Go Forward

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An excerpt from Fontainebleau Florida Hotel, LLC v. Botach, decided today by Judge K. Michael Moore (S.D. Fla.):

This case arises from an incident that occurred at the Fontainebleau Florida Hotel …. Plaintiff alleges that the following events occurred:

After more than an hour of loitering, Defendant Boteach engaged in an uneventful conversation with a registered guest of the Hotel and the two parted ways. More than an hour later (after midnight on Sunday, December 2, 2024), Defendant Boteach engaged in a verbal altercation with the same registered guest wherein the guest and Defendant Boteach exchanged hateful words at each other.

The guest used language that was heinous and accused Defendant Boteach of being a "baby killer" and other words that are easily interpreted as antisemitic. Defendant Boteach, in turn, hurled anti-Islamic words at the registered guest and repeatedly shouted, "Allahu Akbar? Are you going to blow yourself up or something? … he uses the expressions of, like, suicide bombers." Within hours, Defendant Boteach posted an edited video of the exchange on Instagram and began his campaign of threats against the Hotel, its ownership, its outside lawyer, and its employees—who had nothing to do with the altercation except that Hotel security de-escalated and ended it.

Plaintiff alleges that following the altercation, the Defendant, who the FAC [First Amendment Complaint] describes as a "social media influencer and rabbi" with "hundreds of thousands of social media followers[,]" went on a "multi-week assault on the [Hotel], its personnel, and representatives—creating AI videos purporting to show them celebrating antisemitism, comparing them to Nazi collaborators, falsely accusing them of banning Jews from the property, and fabricating statements that they embraced a policy of Judenrein, i.e., the extermination of six million Jews." The FAC alleges that Defendant falsely stated that he was denied entry to the Hotel because he is "too Jewish," that the Hotel refused to cooperate with law enforcement's investigation of the incident, and that he "was trespassed from the Hotel for being 'too Jewish[.]'"

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Criminal Justice

Why Charlie Kirk's Murderer Is "Death Eligible" Under Utah's Death Penalty Statute

Utah prosecutors have a strong argument that the assassination created a great risk of death to another individual besides Kirk, allowing capital punishment under Utah law.

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Today state prosecutors in Utah County, Utah, charged Tyler Robinson with "aggravated murder" under Utah law, making him eligible for the death penalty if convicted. The prosecutors also announced that they will seek the death penalty. Under Utah law, a murder becomes aggravated, and thus, death eligible, if prosecutors can prove a specific aggravating circumstance connected with the murder. Here, acting under Utah's capital murder statute (Utah Code Ann. § 76-5-202) prosecutors have alleged the aggravating circumstance that Kirk's murderer "knowingly created a great risk of death to another individual other than Charlie Kirk and the defendant." In my view the prosecutors have strong case that Kirk's murder fits within that aggravating circumstance, and thus that Robinson (if proven guilty) is eligible for the death penalty.

My purpose in writing this post is to set out the specific Utah law relevant to Robinson's prosecution for a capital crime. As a criminal law professor at Utah's public law school, I teach these subjects regularly. This post addresses only Utah state law, not federal charges that may be applicable. Similarly, this post attempts to describe existing Utah law, not the desirability of seeking the death penalty in the Kirk case nor, more broadly, the desirability of the death penalty in general.

The factual circumstances surrounding Kirk's assassination are generally well known. I won't recount them all here. But it is important to dispel some misconceptions about Utah's death penalty statute.

For a murder to be death-eligible in Utah, prosecutors must prove a specific aggravating circumstance—beyond the fact of intentional murder. The facts alleged (if proven) make clear that Robinson acted with premeditation and, indeed, was lying in wait to get the opportunity to shoot Kirk. Under some homicide statutes, that premeditation alone might well be sufficient to seek the death penalty. For example, in California, a murder committed with malice aforethought (i.e., without provocation) becomes death eligible where "[t]he defendant intentionally killed the victim by means of lying in wait."

Under Utah's murder statute, however, there is no general aggravation for lying in wait or clear premeditation. With some exceptions, Utah's criminal law statutes generally follow the Model Penal Code (MPC), which was drafted by the American Law Institute in the late 1950s and early 1960s to rationalize criminal statutes. The MPC abandoned the distinction between premeditated and "merely intentional" murder, providing for only a single degree of murder. When Utah revised its criminal code in around 1973, it followed the MPC's approach to categorizing homicides. See generally Paul N. Cox, Utah's New Penal Code, 1973 Utah L. Rev. 718.

Turning to Utah's death penalty provisions in particular, some history is helpful. In 1972, the U.S. Supreme Court struck down state death penalty statutes all over the country. In  Furman v. Georgia, the Court held that the statutes in effect at the time generally led to unpredictable infliction of the death penalty. In the immediate wake of Furman, many states (including Utah) responded by re-enacting death penalty statutes that addressed Furman's concerns by guiding jury discretion on death penalty verdicts. In 1976, in Gregg v. Georgia, the U.S. Supreme Court upheld the constitutionality of these modern death penalty statutes.

In drafting more specific death penalty statutes, many states looked to the MPC death penalty provisions. These provisions made certain murders death-eligible if a specific aggravated circumstance was proven. Among other aggravating circumstances, the MPC made a murder death-eligible when "[t]he defendant knowingly created a great risk of death to many persons." See Gregg, 429 U.S. at 194 n.44.

Utah looked to the MPC as a source for its aggravating circumstances in its death penalty statute. But, in its current form, Utah's death penalty statute modifies the MPC aggravator involving risk to "many persons." Instead, Utah's statute requires proof of "great risk of death to another individual" (other than the deceased individual or the murderer). This broader language is significant, because it means prosecutors need only show a great risk to one other person—besides Kirk—to make his murder death-eligible.

What does Utah's language mean when it describes "great risk of death to another individual"? To be clear, this issue of how to interpret the aggravating circumstance is (within broad constitutional limits) solely a question of Utah state law. It appears that Utah caselaw contains only a handful of decisions interpreting the "great risk of death" provision. The gist of these decisions is that the defendant's murder is aggravated if the defendant place another person within the "zone of danger" of death.

In Utah's most recent decision on the aggravator, State v. Sosa-Hurtado, 2019 UT 65, the Utah Supreme Court considered a case where the defendant shot at one person in the course of a robbery and then shot and killed another. Here are the facts: Read More

Free Speech

Washington Court of Appeals Concurrence's >2500-Word Sharp Criticism of President Trump

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From the concurrence in Judge George Fearing's concurrence in today's Wilkinson v. Wash. Med. Comm'n. Judge Fearing wrote the majority opinion, which upheld discipline imposed on a doctor for his COVID-related treatment, but rejected such discipline for the doctor's public speech "downplaying the severity of the COVID pandemic, promoting the use of ivermectin over a vaccine, and criticizing the government's response to the pandemic." On balance, Judge Fearing's majority is quite a First-Amendment-protective opinion, and his separate concurrence also argued that the doctor's speech should be especially protected as political speech, and not just speech about medicine.

Then, several pages into his concurring opinion, Judge Fearing turned from the issues in the case to the First Amendment more broadly, and then to the political situation in the U.S. more broadly. A short excerpt from his long criticism (which offers specific details as well as general condemnation):

Not for more than two hundred years has any President sought to destroy the First Amendment as our current national leader has…. This President operates under an authoritarian and retributive agenda that trashes the First Amendment rights of those who criticize him or who support causes with which he disagrees. This President loathes the nonpartisan nature of the First  Amendment…. Our current President refuses to answer legitimate questions posed by reporters and attacks inquiring journalists as unfair and stupid….

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Free Speech

Doctor Can't Be Disciplined by Washington Medical Commission for Blog Posts About COVID

The posts were "downplaying the severity of the COVID pandemic, promoting the use of ivermectin over a vaccine, and criticizing the government's response to the pandemic."

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A short excerpt from the very long Wilkinson v. Wash. Med. Comm'n, decided today by Washington Court of Appeals Judge George Fearing, joined by Chief Judge Robert Lawrence-Berrey and Judge Tracy Staab; it strikes me as generally correct:

Dr. Richard Wilkinson challenges discipline imposed on him by the Washington Medical Commission … related to his treatment of seven patients with COVID-19 and related to his clinic website's blogs downplaying the severity of the COVID pandemic, promoting the use of ivermectin over a vaccine, and criticizing the government's response to the pandemic…. We affirm the patient care discipline and reverse the blog sanctions. WMC's discipline of Dr. Wilkinson for his website blogs breached his First Amendment free speech rights….

The First Amendment confirms that the government lacks power to restrict expression because of its message, its ideas, its subject matter, or its content. As a result, we presume content-based restrictions on speech invalid….. Critical to this appeal is the extension of First Amendment protection to false statements. U.S. v. Alvarez (2012). This protection is essential because some false statements are inevitable with an open and vigorous expression of views in public and private conversation, expressions the First Amendment seeks to guarantee. New York Times Co. v. Sullivan (1964)….

WMC suggests that speech by doctors must be consensus driven. It cites no authority for this position. The law, to the contrary, defeats this position. The First Amendment robustly protects a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream or even dangerous.

WMC's contention that it may monitor the scientific accuracy of physician's speech means that the State of Washington holds power to monitor speech and assess the trustworthiness of that speech. A government's power to protect truthful discourse would cast a chill on the exercise of free speech and thought. Alvarez.

According to Dr. Richard Wilkinson, WMC's finding that his statements were false supports Wilkinson's position. It shows punishment based on viewpoint discrimination. We agree. The First Amendment reserves to the people the right to assess truth. The state has no right to protect the public against false doctrine.

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What Does the Rabbi Who Conducted Your Wedding Say About Your Religious and Political Views?

Very little.

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I agree with everything Josh says about the inappropriateness of anyone attacking judicial nominee Rebecca Taibleson on the basis of religion, and specifically because the Reform rabbi who married Rebecca and her husband supports LGBT causes.

And while this is sort of religious attack is very inappropriate in general, I also want to point out that it's not just inappropriate but absurd in this particular context.

First, Reform Judaism openly supports allowing Jews to define Judaism in their own terms. So there is zero reason to think that because a Reform rabbi marries you, you agree with either that Rabbi or the official Reform position on any given issue, much less every issue.

For that matter, the fact that you got married by someone is a particularly poor indication of your political and religious values.

Why do people choose a particular rabbi to marry them?

"We just moved to the area, and this is the only rabbi we know."

"We have friends who referred us to this rabbi as doing beautiful ceremonies."

"It's the rabbi from my childhood who saw me grow up, and it would be particularly meaningful to have this rabbi do my marriage."

"The bride's parents live in X, where we are holding the wedding, and Rabbi Y is the only rabbi in town."

"The groom's family belongs to Temple Beth X, and as part of their membership dues the rabbi conducts weddings of congregants for free."

"This is the only rabbi in town willing to do intermarriages."

And so on. You know what I've never, ever heard any Jewish couple say?: "We chose this rabbi because we checked the rabbi's theological and political views, and they align 100% with ours."

Conflict of Interest Watch: Rebecca Taibleson's father is Michael Krauss, a retired law professor who was my colleague at Scalia Law for many years. I don't think I ever met Rebecca, though.

Random Trivia Watch: The vast majority of conservative Jewish judges since the Reagan era have been men. If Taibleson is confirmed, she will join Neomi Rao as one of two Trump-appointed Jewish women.

An Unfair and Uninformed Attack On Rebecca Taibleson's Jewish Faith

The Jewish Federation is a widely regarded Jewish charity that supports all Jews, and it is beyond the pale to attack a person based on their Rabbi.

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Last month, I wrote about President Trump's nomination of Rebecca Taibleson to the Seventh Circuit. In recent weeks, I've heard rumors of opposition to Taibleson's nomination on the right. All candidates should be subject to public scrutiny, but one set of attacks, I think, crossed the line.

Taibleson has been attacked for donating a small sum of money to the Milwaukee Jewish Federation. In most cities with a Jewish population, the Federation exists as an umbrella organization that supports all Jewish causes. The Federation supports Jewish education, summer camps, services for seniors, helps Jewish people in times of crisis, and more. To be sure, there are Jewish people on the far left of the aisle. (Trust me, I know.) And they support all sorts of DEI activities. But the Federation also supports conservative and orthodox groups as well. And in our current moment, the Federation has been steadfast on support for Israel. Am Yisrael Chai. The people of Israel live.

My kids go to a JCC camp, which is funded by the Jewish Federation of Houston. Do I approve of everything the Federation does? Of course not. But I support much of their work, and have financially supported the Federation of the years.

I agree with Mike Fragoso's analogy to Catholic Charities:

But, you see, Taibleson donated a paltry sum to the Milwaukee Jewish Federation and they support LGBT rights. The Milwaukee Jewish Federation is the blanket Jewish social-services organization in Milwaukee, sort of like a Jewish version of Catholic Charities. Should we think that Brett Kavanaugh supports open borders because he volunteered for Catholic Charities? That will be news to the illegal aliens getting caught up in Los Angeles's renewed ICE sweeps. The fact is that you can infer malice in most any charitable act if only you choose to approach it in bad faith.

Another attack is far more scurrilous: that the Rabbi who married Rebecca and her husband supports LGBT causes. I think going after a person's spiritual leader, and house of worship, is beyond the pale. Full stop. The Religious Test Cause, whatever it means, should ensure that we do not scrutinize how a person worships the almighty. Moreover, most Reform synagogues have inclusive policies for gays and lesbians. But that doesn't mean everyone who attends the synagogue agrees on those issues. As I've said many times before, there is no single standard of Judaism. There is no Jewish equivalent of a pope. In a given synagogue, worshippers are not required to agree with their rabbi on everything or anything. Indeed, it is an old pastime for people to complain about everything their rabbi says and does.

Do we really want to start scrutinizing the particular religious beliefs of a judicial candidate? I think the answer has to be no.

Tomorrow is Rebecca's hearing, on Constitution Day fittingly enough. I hope these attacks concerning religion stay out of the proceedings.

Campus Free Speech

The New Wave of Faculty Terminations

My two recent pieces in Chronicle of Higher Education

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The Fall semester is not going well so far when it comes to campus speech. Obviously the most horrible event in this regard was the murder of Charlie Kirk while he was engaged in a public speaking event on a university campus. A few years ago there were numerous instances of mobs of students and agitators disrupting conservative speakers and rioting when conservative speakers came to a college campus. The pace of such mob activity seemed to have slowed, but the Kirk shooting is a terrible escalation.

Unfortunately, the Kirk shooting is not the only news on the campus speech front. In just the past few days, I have written two pieces for the Chronicle of Higher Education on moves to fire professors for speech that has drawn the ire of politicians.

The first responded on events at Texas A&M University, where an English lecturer was quickly fired after a viral video promulgated by a Republican state legislator. The video shows a confrontation in a class on children's literature in which a student objected to the professor presenting materials on gender identity. The university president initially defended the instructor and her academic freedom, until the Texas governor started demanding that she be fired.

From the piece:

Events in Texas have been fast moving, and a great deal of factual information about the case remains unknown. What is clear is that state-government officials are extremely willing to intervene to punish professors at state universities for saying things in the classroom that those politicians do not like, and that university presidents there are under immense pressure to comply with such demands. Academic freedom is a tenuous thing in such an environment.

Read the whole thing here (you will need a free account to sign in).

The second is at the top of the website this morning. This longer piece walks through the First Amendment rights of government employees and particularly professors and other employees of state universities. Since the murder of Charlie Kirk, there has been an orchestrated campaign to identify individuals who posted on social media celebrations of his death (or worse) and to pressure their employers to fire them for those posts. University employees have been just one target of that campaign, but several universities have been extremely quick to bow to that pressure and suspend or fire professors for their speech relating to Charlie Kirk. In the process, some universities have issued public statements egregiously mischaracterizing First Amendment doctrine. The piece points out the circumstances when such terminations are constitutionally permissible -- and when they are not.

From the conclusion of the piece:

The American Association of University Professors once emphasized that, when speaking in public, professors should remember that the public will "judge their profession and their institution by their utterances," so they should conduct themselves with discretion when speaking in public. That remains good advice. Higher education is now under extraordinary political pressure, and public confidence in colleges and the academic profession is in free fall. Professors who behave immaturely (or worse) in public exacerbate those problems. Perhaps more immediately, constitutional doctrine that treats professors as different and special compared to other government employees depends on a judgment that professors make positive contributions to our public discourse, even when those contributions are controversial. If professors are seen as polluting the public environment and contributing to political polarization and intolerance, the calculation of how to balance the competing constitutional interests is likely to change. Perhaps judges should continue to insist that professors are different even when they are chanting on the campus quad or posting on social media, but they are likely to do so only if they think professors are acting responsibly.

Even if a sense of public virtue is not sufficient to encourage professors to exercise more care when speaking in public, self-interest should.

Read the whole thing here.

For a more extensive discussion of constitutional doctrine and academic freedom principles related to professors speaking in public about matters of public concern, see my law review article here.

Debating the UCLA Anti-Israel Encampment

Even if the encampment organizers' behavior was reasonable, the university's behavior was still illegal.

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UCLA law professor Joey Fishkin, an advocate for the 2024 "antizionist" encampment at his university, has a lengthy blog post defending the university from Title VI and constitutional religious discrimination allegations that were the subject of a Becket Fund lawsuit (since settled), and now a federal civil rights action. The heart of the claims is that UCLA violated the religious freedom of, and discriminated against, Jewish students, by allowing the encampment to exclude Jewish students from the encampment, which in turn at times blocked access to campus building. Fishkin responded:

I can say unequivocally based on direct observation that the language quoted above—the central allegation in the Becket Fund complaint—was false. There was no Jew Exclusion Zone. The claim that the encampment was "segregating Jewish students and preventing them from accessing the heart of campus, including classroom buildings [which must mean Royce] and the main undergraduate library [Powell]," as the Becket Fund complaint put it, is false.

I see Fishkin's post as a defense of conduct by the people who ran the encampment. But taken in its best light, it doesn't do much to exonerate UCLA.

Fishkin's argument is that those running the encampment were genuinely and reasonably concerned about avoiding disruption and, more important, the protestor's safety and security; did not intend to exclude Jews as such or otherwise have antisemitic intentions; did not intend to block access to buildings; did not believe they were doing so; and did not at least when he was there, make antisemitic statements, or put up violent or obviously offensive signs.

However, it's not the students who were sued, nor is it the students who are the subject of federal civil rights action. It's UCLA.

My bottom line: Even if the encampers reasonably feared disruption and for their safety, it was illegal of UCLA to allow them to block other students from public property based on suspicion that the students might be violent or disruptive.

Even if from the encampers' perspective it was reasonable from a safety/disruption perspective to be suspicious of Jewish students wearing kippahs or stars of David, or students who refused to pledge their adherence to anti-Zionism, and exclude them from a section of the quad, it was illegal for UCLA to allow them to do so.

Even if those who ran the encampment believed that they weren't blocking access to buildings, it was (a) illegal for UCLA to put up a barrier that even partially blocked access to buildings (including, as I understand it, blocking handicapped access!) unless students could gain access to the encampment--which Fishkin acknowledges UCLA did on April 30, and (b) to the extent that the library and other buildings were fully inaccessible unless you went through the encampment, it was even more egregiously illegal behavior by UCLA to allow access to the encampment area to be blocked.

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Politics

Campus Violence and Threats Against Jewish Students Since October 7, Part II

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Yesterday, I provide a list of physical assaults (in technical legal terms, batteries) on Jewish individuals on or near college campuses since 10/7. This post follows up with a list of threats, harassment and intimidation directed at Jews. As in Part I, this is not a complete list, but only a list of incidents which are both publicly reported and that I was able to find; the degree of seriousness varies, but I list them in chronological order; and I have deleted sources for ease of reading, but I can provide citations to those interested.

Part II. Threats, Harassment, and Intimidation
This section compiles documented incidents of threats, intimidation, and harassment targeting Jewish students or institutions on U.S. campuses. This list excludes general threatening or violent sentiment not specifically aimed at Jewish students, such as "globalize the intifada."

Oct. 2023 – Cornell University (Ithaca, NY):
A student posted violent threats online to shoot, rape, and murder Jewish students and to attack a kosher dining hall. He was arrested and later pled guilty in federal court to interstate threats in early 2025.

Oct. 25, 2023 – Cooper Union (New York, NY):
Jewish students sheltering in the library reported pro-Palestinian protesters pounding on the doors and shouting slogans. Students feared for their safety. In February 2025, a federal court rejected Cooper Union's attempt to dismiss a lawsuit filed by the students, allowing their Title VI hostile environment claims to proceed.

October/November 2023 – Columbia University (New York, NY)
A Columbia student harassed visibly Jewish students, faculty, and clergy by shouting "Fuck the Jews" at them on at least three separate occasions.

Oct. 12, 2023 – Rutgers University (New Brunswick, NJ):
A student posted in the social media app YikYak, "Palestinian protesters there is an Israeli at AEPI go kill him." The student received a one-semester suspension.

Oct. 28, 2023 – University of Pennsylvania (Philadelphia, PA)
A Penn student stole an Israeli flag from a Jewish student's residence. She then burned it at a where she glorified "joyful and powerful images which came from the glorious October 7," described how the mass murder of civilians in Israel made her feel "so empowered and happy," and told the crowd to "hold that feeling in your hearts" and "bring it to the streets." The student victim "reported feeling 'terrified' after the theft of the Flag," because it was "anti-Semitic and targeted their home." The victim felt "threatened" by the perpetrator's actions, and "reported feeling isolated and very uncomfortable continuing to wear markers of their Jewish faith."

Nov. 9, 2023 – Ohio State University (Columbus, OH):
Two people entered the OSU Hillel Wexner Jewish Student Center building and started taking photos and vandalizing Israeli flags in the lobby, and shouting anti-Israel statements and threats.

Fall/Spring 2023-2024 - UCLA (Los Angeles, CA)
The UCLA task force on antisemitism surveyed 428 UCLA students and staff members in June who were Jewish or Israeli. Over 100 of the respondents state that they had been physically attacked or threatened. "I would spend much more time at home than at the UCLA dorms in fear of my safety," one respondent told the task force.

Nov. 20, 2023 – UC San Diego (San Diego, CA)
Jewish students at UC San Diego attending an Associated Students meeting were given a police escort after a hostile protest by Students for Justice in Palestine outside the meeting, where protesters carried an Al-Qaeda flag and shouted pro-terror slogans. UCSD initially downplayed the incident but later clarified that the escort was a pre-planned safety measure arranged with student groups, not an emergency evacuation.

Nov/Dec. 2023 – San Francisco State University (San Francisco, CA):
Graffiti was scrawled in a restroom at San Francisco State University on November 28 that read, "Kill all Zionists." Two weeks later "Kill the Jews" was graffitied on a campus wall.

2023–2024 – New York University (New York, NY):
Jewish students reported repeated harassment, including chants of 'gas the Jews' and 'Hitler was right.' A group of students filed a civil-rights lawsuit; NYU settled without admitting wrongdoing.
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Politics

Freedom Fighters

What coins and papyri tell us about the ideals of ancient Jewish rebels.

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Historians of the ancient world depend on the writings of elite historians like Thucydides, Livy, and Josephus, but they consult other sources as well, especially the evidence of material culture. Archaeologists have unearthed cities, fortresses, roads, aqueducts, bridges, pottery, jewelry, sculpture, frescoes, and the minutiae of everyday life. They have also found writing, most often inscribed on stone or written in ink on papyri which were preserved by dry conditions in the desert.

They have also discovered coins, gold, silver and bronze, which are of no small value to scholars. Coins provide the message that the people who issued them wanted to convey. We can read that message in both the images on the coins and the legends (writing). For example, one of the most famous coins of the ancient world reads "Ides of March" and it displays two daggers and the cap of a freed slave. Unmistakably, it advertises the assassination of Julius Caesar, the most famous assassination in history.

The Jewish rebels of both the Great Revolt (66-70 CE) and the Bar Kokhba Revolt (132-136 CE) also issued coins. They open a window into the goals and ideals of the rebels. Robert Silverman offers an accessible and perceptive discussion of these coins in two recent articles here and here.

I discuss the coins of the Great Revolt as well as other related documents in this excerpt from my new book, Jews vs. Rome: Two Centuries of Rebellion Against the World's Mightiest Empire (Simon & Schuster, 2025):

The rebels of 66 believed that they were building a government and they thought it would last. The coins they struck testify to their hopes and beliefs. During the five years of the rebellion (66-70), they issued both silver and bronze coins. The coins were notably precise, professional, and pure, with an impressive silver content of 98 per cent, making them purer than Nero's silver coins. More important, they were the first, and perhaps the only true rebel coinage ever issued in the Roman Empire. From Augustus on, only the emperor had the right to mint silver (or gold) coins. The Jewish silver coins marked a real break. They were a clear declaration of independence….

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Copyright

Ex-Congressman George Santos Loses Lawsuit Against Jimmy Kimmel and ABC

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From Santos v. Kimmel, decided today by Second Circuit Judge Raymond Lohier, joined by Judges José Cabranes and Richard Sullivan:

Santos's suit arose after Kimmel, using various fictitious names, submitted requests to Santos for personalized videos through the Cameo platform. Santos fulfilled each request, and Kimmel then aired the videos on JKL as part of a mocking series of segments titled "Will Santos Say It?" …

[1.] In a copyright action, the affirmative defense of fair use "excuses what might otherwise be considered infringing behavior, allowing courts to avoid rigid application of the Copyright Act when it would stifle the very creativity the Act is meant to promote." Under the Copyright Act, we consider the following non-exclusive factors in determining whether fair use has been established: "(1) the purpose and character of the use … ; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used … ; and (4) the effect of the use upon the potential market for or value of the copyrighted work."

In assessing the "purpose and character of the use" factor, we "focus[ ] chiefly on the degree to which the use is transformative, i.e., whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character." … Santos does not dispute the District Court's finding that the purpose of [Kimmel's] allegedly infringing use was "to comment on the willingness of Santos … to say absurd things for money." He argues instead that this was also his original purpose in making the videos.

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Free Speech

Plaintiff Must "Reconcile Herself to the Fact That Litigation Is Often Accompanied by Public Attention and Scrutiny"

"Outside of certain narrow and presently inapplicable circumstances, federal lawsuits are public proceedings and members of the public are free to comment on them."

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Owen v. Askew, decided today by Judge Ann Aiken (D. Ore.) rejected Plaintiff's Emergency Motion for Order to Show Cause (see also this supplement), seeking to hold defendant Boyce "in contempt for violation of the preliminary Injunction." That preliminary injunction, which was narrower than the TRO I had blogged about, "enjoin[ed] Defendants from engaging in harassment directed at Plaintiff or her business and particularly from seeking to have Plaintiff's online storefronts removed during the pendency of this action." From the court's opinion:

Plaintiff asserts that Ms. Boyce has commented on the ongoing lawsuit and that Plaintiff has been the target of hostile commentary on the Internet by third parties. The motion and its supporting exhibits do not show that Ms. Boyce has engaged in harassment of Plaintiff.

Nor does it show, beyond Plaintiff's speculation, that she has encouraged others to do so. The various Emergency Supplements include voluminous exhibits showing third parties expressing their support for Ms. Boyce or their antipathy to Plaintiff, but these comments do not constitute harassment and, even if they did, the Preliminary Injunction does not serve to enjoin individuals who are not before the Court.

Plaintiff complains that Ms. Boyce has "mocked" these proceedings and expressed her opinion that she will ultimately prevail, but it is not clear how Plaintiff believes either sentiment is a violation of the Preliminary Injunction. Outside of certain narrow and presently inapplicable circumstances, federal lawsuits are public proceedings and members of the public are free to comment on them. If Plaintiff wishes to proceed with this action, she must reconcile herself to the fact that litigation is often accompanied by public attention and scrutiny.

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shadow docket

What Should We Call the "Shadow Docket"?

Should it be the interim docket? The emergency docket? The emergency orders docket? The short order docket? Something else?

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In today's New York Times, Adam Liptak reports on the emerging debate among commentators and Supreme Court justices about what to call the Supreme Court's docket of requests for emergency or interim relief.

As Liptak notes, this docket was initially coined the "shadow docket" by Will Baude in an article that sought to draw attention to this component of the Court's work, and bring it out of the shadows. Mission accomplished. This aspect of the Court's work is now analyzed and debated.

Now that the "shadow docket" is no longer in the shadows, does it need another name? As I noted here, Justice Kavanaugh thinks it should be called the "interim docket." Liptak reports on what other justices have said.

Justice Elena Kagan said in July at a judicial conference that she has used the term "shadow docket" in dissent "when I was feeling particularly annoyed." . . .

Justice Samuel A. Alito Jr. is not a fan of such critiques. In a 2021 speech, he said the term "shadow docket" was nothing less than an assault on the legitimacy of the court.

"The catchy and sinister term 'shadow docket' has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways," he said. "This portrayal feeds unprecedented efforts to intimidate the court and to damage it as an independent institution."

Most justices seem to have settled on the "emergency docket" to describe the court's fast track. Justice Kagan said that was her preferred term, and Justice Amy Coney Barrett said the same thing last week on the "Advisory Opinions" podcast. . . .

Professor Baude, whose article started the debate, said last week that "interim orders docket" was fine with him. But he added that he regrets nothing about coming up with "shadow docket."

Climate Change

Why Trying to Undo the Endangerment Finding Is A High-Risk (and Low-Reward) Deregulatory Strategy

EPA Administrator Lee Zeldin says the Endangerment Finding is the "holy grail" of climate policy. Perhaps it's really they great white whale.

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Environmental Protection Agency Administrator Lee Zeldin is pursuing an aggressive strategy to reduce the burden of environmental regulation on the American economy. In line with the Trump Administration's Executive Orders, he is emphasizing deregulatory measures relating to energy development and consumption, with a particular focus on climate change. As I have noted before, some parts of this deregulatory agenda are more legally defensible than others.

My latest Civitas Outlook column focuses on Zeldin's effort to roll back EPA climate regulation, and where the EPA may face difficulty.

Zeldin's most ambitious undertaking in this regard may also be the most legally vulnerable. On July 29, the EPA proposed to not only repeal regulations limiting greenhouse gas emissions from new motor vehicles, but also to rescind the so-called "endangerment finding"—the legal predicate for nearly all of the EPA's greenhouse gas regulations under the Clean Air Act. In this regard, the EPA is not seeking merely to undo regulations from the Obama and Biden administrations. It is also seeking to make it more difficult for future administrations to put such regulations back in place unless and until the EPA is instructed to do so by Congress. This is a high-risk strategy. . . .

The primary reason it is difficult to undo the endangerment finding is that the statutory standard is so easy to meet. For purposes of the Act, the question is not whether climate change is catastrophic, nor whether climate adaptation is preferable to mitigation, nor whether federal regulation of sector-specific emissions is rational or cost-beneficial, nor whether such regulations represent a serious or rational way to address the threat of climate change. Nor is the question whether the science is unequivocal, nor is it whether there is certainty about the likely effects of increased atmospheric concentrations of greenhouse gas emissions over any given time period. Rather, the question is simply whether the EPA Administrator can "reasonably anticipate" that the accumulation of greenhouse gases in the atmosphere can have negative effects on health or welfare—effects which the Act defines to include the impact on climate, "economic values," and "personal comfort and well-being."

While the EPA suggests that a less-alarmist interpretation of existing climate science is one reason to undo the endangerment finding, relying upon a draft report prepared for the Department of Energy, its primary argument is that the Clean Air Act "does not authorize the EPA to proscribe emission standards to address global climate change concerns." The problem is that this argument is almost certainly foreclosed by Massachusetts v. EPA, which expressly concluded that the Act "authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a 'judgment' that such emissions contribute to climate change." The EPA suggests one way to address this constraint is to note that domestic motor vehicle emissions are a small (and shrinking) share of global emissions, but Section 202 of the Clean Air Act (unlike some other provisions of the Act) conspicuously lacks any requirement that motor vehicle emissions contribute significantly to the problem.

In its proposed rulemaking the EPA tries to argue that intervening Supreme Court decisions counsel a reconsideration of what the Clean Air Act means. Under these decisions, most notably West Virginia v. EPA and Loper Bright Enterprises v. Raimondo, the EPA argues that the Clean Air Act should not be interpreted to grant the EPA authority to regulate greenhouse gas emissions in order to control climate change. Were it a matter of first impression, this argument would have substantial force (especially before the current court), but that is not where we are. The Massachusetts decision may have been wrong (as I believe it was), but it nonetheless represents the Court's authoritative interpretation of what the Clean Air Act provides on this point, and the Supreme Court rarely reconsiders its prior statutory holdings.

While many critics of the endangerment finding want to focus on climate science, it is worth noting that the primary arguments the EPA put forward in its proposed rulemaking are legal, not scientific. The EPA references the recent Department of Energy Climate Working Group report that critiques prior National Climate Assessments and presents a less alarmist view of climate science, but the EPA (correctly) recognizes that it is the legal issues here that will (and should) predominate.

Speaking of the Climate Working Group, it is apparently no more. After the initial report was released and put out for public comment, environmentalist organizations sued, claiming DOE violated the Federal Advisory Committee Act (FACA), and asked a court to enjoin the federal government from relying upon the report in any form. While it was unlikely a court would embrace this extreme remedy, it appears concerns about FACA compliance going forward convinced DOE to disband the working group, and that is what the Energy Secretary did. Going forward, this may make it more difficult for the EPA to rely upon the group's work in the endangerment finding repeal rulemaking, as it was only a draft report, and it is not clear how it will be revised in response to public comment if the working group no longer exists.

My Civitas Outlook column concludes:

Administrator Zeldin has referred to the endangerment finding as "the holy grail of the climate change religion." Perhaps so. But recall that in the Arthurian legend, only the purest of heart and soul may reach the grail. Accordingly, it may take a purer legal strategy, and one that relies upon Congress, if the endangerment finding is to be undone.

Leonard Cohen's "There Is a War" (First Released 1974)

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There's more going on in the song, but here's an excerpt (actually, two excerpts merged, out of order) that's been on my mind; it seems pretty clear that Cohen's commentary is not an endorsement:

There is a war between the rich and poor
A war between the man and the woman
There is a war between the left and right
A war between the black and white
A war between the odd and the even …
There is a war between the ones who say there is a war
And the ones who say that there isn't

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