The Volokh Conspiracy

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

Fox News' Gillian Turner noted during her interview with [Secretary of State Marco] Rubio that Deputy Secretary of State Christopher Landau had been "calling out on social media foreigners who he says are celebrating, glorifying" the fatal shooting of Kirk in Utah last Wednesday.

Landau had indicated in his Thursday post that the State Department would review the legal status of immigrants "praising, rationalizing, or making light" of Kirk's killing and Turner asked Rubio about plans for those U.S. visa holders.

Rubio said a visa "means you're a visitor to the United States" and "we are not in the business of inviting people to visit our country who are going to be involved in negative and destructive behavior."

People who "celebrate the murder, the execution, the assassination, of a political figure" should not be allowed in the country, he said. "And if they're already here, we should be revoking their visa."

Is that legal?

[1.] Since 2005, federal immigration law (8 U.S.C. § 1182(a)(3)(B)(i)(VII), (B)(iii)) has provided that:

Any alien who … endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization … is inadmissible….

And "terrorist activity" is defined very broadly; it's not limited to actions by designated foreign terrorist organizations, and it's not even limited to actions by organized groups. Rather,

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I recently flew to Israel on El Al, Israel's national airline. I was on my way to teach a summer course at Shalem College and to give a public lecture at the Menachem Begin Center on my new book, Jews vs. Rome: Two Centuries of Rebellion Against the World's Mightiest Empire (Simon & Schuster, 2025). I was surprised to discover that among the movie choices there was a Clint Eastwood retrospective. On reflection, it doesn't seem surprising.

As far as I know, Eastwood is not a public advocate of Israel although he may support it privately. The former Israeli consul general in the USA, Ido Aharoni Aronoff, reported in 2015 that Eastwood told him that "I am a big supporter of Israel." Aronoff posted a picture of the two of them together.

But the issue is less what Eastwood says than what he and his films represent. I googled "Clint Eastwood" and "Israel" after I landed and discovered that a blogger named Sebastian Wright had noticed an affinity. A few months ago he wrote that "Eastwood's works touch upon themes that resonate deeply with Israeli culture," namely "moral dilemmas, the complexities of war, and the quest for justice."

I would add that both Eastwood movies and Israeli life take place in tough neighborhoods. "Mystic River," for instance, the 2003-Oscar-winning neo-noir that I watched on the flight, is set in a hardscrabble part of Boston. It's a world of violence and family bonds where law enforcement must struggle to prevail.

Barry Strauss is the Corliss Page Dean Senior Fellow at the Hoover Institution, and the Bryce and Edith M. Bowmar Professor of Humanistic Studies Emeritus at Cornell University, where he taught for over four decades. He is a military and naval historian with a focus on ancient Greece and Rome and their lessons for today; his books include The Battle of Salamis (2004), Masters of Command (2012), Ten Caesars (2019), and The War that Made the Roman Empire (2022). He is also a winner of the 2025 Bradley Prize, honoring his lifelong dedication to the study and teaching of Western civilization and classical and military history.

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On Constitution Day, the Heritage Foundation hosted the launch event for the Heritage Guide to the Constitution, Third Edition.

The two panels walked through how originalism has changed in the academy and the judiciary over the past four decades:

Panel I | Originalism in Theory and Practice: Insights from the Legal Academy

Charles J. Cooper, JD, Founding Member and Chairman, Cooper & Kirk, PLLC

Kurt Lash, JD, E. Claiborne Robins Distinguished Chair in Law, University of Richmond School of Law

Randy E. Barnett, JD, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center and Faculty Director, Georgetown Center for the Constitution

Josh Blackman, JD, Senior Editor, The Heritage Guide to the Constitution and Centennial Chair of Constitutional Law, South Texas College of Law Houston (moderator)

Panel II | The Originalist Turn: A Judicial Perspective

The Honorable William H. Pryor Jr., Chief Judge, U.S. Court of Appeals for the Eleventh Circuit

The Honorable David R. Stras, Judge, U.S. Court of Appeals for the Eighth Circuit

The Honorable Elizabeth L. Branch, Judge, U.S. Court of Appeals for the Eleventh Circuit

John G. Malcolm, Executive Editor, The Heritage Guide to the Constitution and Vice President, Institute for Constitutional Government, The Heritage Foundation (moderator)

Amazon is currently selling the pre-order at 40% off. I would place your order now!

9/18/1857: Justice John Hessin Clarke's birthday.

Today, Rebecca Taibleson had her confirmation hearing. Despite some opposition from conservative groups, I did not see any indication that a single Republican Senator would oppose her nomination. She should be confirmed easily. Though, following up on my post yesterday about Rebecca's faith, I did want to flag one exchange with Senator Cruz that the WSJ picked up:

"I have had people reach out to me on this nomination more than any other judicial nomination in the second Trump term," Sen. Ted Cruz said Wednesday at a hearing for Ms. Taibleson, a 42-year-old Wisconsin federal prosecutor. The anxieties on the right, Mr. Cruz added, "boil down to a concern that you're secretly a closet liberal, and that you'd be an activist on the bench."

Ms. Taibleson replied ably. "I was raised by a very conservative law professor," she said. "It has stuck." (Her father is George Mason University's Michael Krauss.) Growing up, "it felt like we were the only conservatives at our Jewish day school in the 1990s," she added. "Especially back then, if you were Jewish and conservative, you had to really mean it, and we did."

Sen. Cruz gave Taibleson an opportunity to respond to her critics. I've been at this for a while and I don't think I've ever seen an answer quite like it. pic.twitter.com/OKDjduzDlH

— Mike Fragoso (@mike_frags) September 17, 2025

To start, I give Senator Cruz some credit. He walked a tightrope here. It was obvious he was responding to concerns raised by various conservative groups that he respects. At the same time, he recognized that Rebecca should be able to address concerns about her own political views. I've seen Senator Cruz destroy nominees from the dais. This was not Cruz's mission today. She was given space. Mike Fragoso aptly observed, "I've been at this for a while and I don't think I've ever seen an answer quite like it." Cruz was respectful, but probing.

Rebecca's answer was perfect in ways that most people will not understand. And I can relate as a Jew, and a conservative. At least since the New Deal, the experience of the American Jew was to be a Democrat. Period. Growing up, there was not a single member of my extended Jewish family who was a registered Republican. I heard stories that my late grandmother voted for Nixon in 1972--a 49 state landslide--and she was still mocked for it. My family managed to vote against Reagan, twice. In 1998, then Representative Chuck Schumer spoke to my Hebrew school class while campaigning for the Senate. In 2000, I advocated for Al Gore and Joe Lieberman! This was the default rule for Jewish people.

After 9/11, I started my journey to the political right. And I felt the backlash. Conversations at the Passover table were unpleasant. My grandfather wanted to ban all guns and could not understand why I owned one. My family could not understand how I could back President George W. Bush. They could not fathom why I would oppose President Obama. And once President Trump came on the scene, I was ostracized. My family was at the Woman's March! It got to the point where I simply would not talk about politics with my family. If they ever asked me about something political, I would smile and try to change the topic. It drove my late mother crazy, but I used the pivot as a defense mechanism. This approach was essential to preserve shalom bayit (peace in the house). My silence infuriated them even more since I would express my views publicly on TV and radio. One of my last conversations with my mom was about the Dobbs case. I ducked it. I would have just made her upset, which I didn't want to do.

To quote Rebecca, to be a politically conservative Jew, you really had to mean it. You have to be willing to express your views, even in a community where you will be shunned. I have to imagine that being a conservative Jew might be something like being a conservative black person: liberals looks at you like a traitor for abandoning the cause. And it takes some fortitude to push back against those liberal orthodoxies. (I attended a fascinating conference at Heritage today, titled "Black Family Blueprint," which I would recommend to everyone.) This is the point that Rebecca was conveying, and it is a message that should resonate with anyone who read Justice Thomas's biography.

In my initial post on Rebecca, I focused a lot on her father, Professor Michael Krauss. And I did so quite deliberately. If a person was raised in a politically conservative Jewish family, it will be very hard to avoid absorbing those values. And if a person's father was Michael Krauss, the most influential professor I've ever had, it would be damn near impossible. To be sure, conservatives can arise from a liberal Jewish family (see me). But the opposite is much more unlikely.

Thankfully, the number of conservative Jews is on the rise. Look to President Trump's judicial nominees: David Stras, Neomi Rao, Steve Menashi, Dan Bress, Robert Luck, Roy Altman, Lee Rudofsky, Matt Solomson, Steve Schwartz, and others. Now, there is Rebecca Taibleson. If you consider the percentage of Trump's Jewish judicial nominees against the percentage of Jews in America, we are punching way above our weight class. Plus, the Trump Administration is stacked with Jewish people. A friend remarked that he recently had dinner with about ten Orthodox Jews who work in the administration.

In popular culture, I can look to Mark Levin and Ben Shapiro, who are leading conservative talk radio hosts. I recently spoke at NatCon 25, which is led by Yoram Hazony, an Orthodox Jew from Israel. I've never been at a conference with so many Jewish people. I was nudged to join a Whatapp group to organize minyans for daily prayers. In the legal sphere, friends like Josh Hammer and Ilya Shapiro demonstrate that there is a place for Jews on the right. The Federalist Society and the Israel Legal Fellowship are taking bold steps to forge relations to Jewish lawyers in Israel.

I hope that our public advocacy, as proud Jews, gives space to other right-curious Jews to speak up. I also hope that more conservatives come to understand Jews as natural and capable allies.

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The complaint for Donald Trump against the New York Times reads like a long press release. It says little to show the falsity of the factual statements it identifies, and mainly praises Trump. Among the many examples: in its second paragraph it states that in the 2024 election "President Trump secured the greatest personal and political achievement in American history." Or from paragraph 12:

Thanks solely to President Trump's sui generis charisma and unique business acumen, "The Apprentice" generated hundreds of millions of dollars in revenue, and remained on television for over thirteen years, with nearly 200 episodes. "The Apprentice" represented the cultural magnitude of President Trump's singular brilliance, which captured the zeitgeist of our time.

Beyond that, what jumped out at me is the complaint's repeated references to the subjective "malice" that the complaint says the defendants have toward Trump. As every law student who has taken a First Amendment class knows, "actual malice" in New York Times v. Sullivan is a term of art – the Court has repeatedly made clear that it is an objective standard that focuses on whether the defendant was reckless about the possible falsity of a factual claim, and not on the defendant's hatred, ill will, or enmity. But the complaint's references to actual malice focus on subjective hostility to Trump. For example, paragraph 117 begins:

Defendants' actual malice manifested in numerous ways. Defendants launched investigations into President Trump, his family, and his businesses for the express purpose of harming all three.

In the claims for relief, the complaint says that the defendants were aware of falsity but emphasize subjective dislike of Trump. Paragraphs 139 and 153 both say:

The statements were published by Defendants with actual malice, as part of a long term pattern, with oppression and fraud in that they were aware at the time of the falsity of the publication and thus, made said publications in bad faith, out of hatred and ill-will directed towards President Trump without any regard for the truth.

I assume that the lawyers know that judges who care about the law will focus on the objective standard as laid out by the Supreme Court. So why the focus on hatred and ill will? It's possible they think this will help persuade the public, but it's hard to imagine that many members of the public (other than Volokh Conspiracy readers!) will learn anything about this complaint, much less care. Maybe they believe that the judge who will hear this case is likely to be a political hack who will like the invocations of ill will, but even then an ordinary complaint seems like the smarter move, as it would give a political hack more cover to be political. Maybe they think this will persuade journalists, but journalists who are not ardent Trump supporters will likely call lawyers or law professors and be told that actual malice is an objective standard.

My guess is that the answer is tied to the lavish praise of Trump I noted at the beginning of this post: I think the complaint centrally has an audience of one (Trump), and more broadly his hardest core supporters. It's not written to persuade, but instead to affirm – that Trump is the greatest and that his opponents are deranged (from paragraph 107: "Defendants baselessly hate President Trump in a deranged way"). So maybe it reads like a press release because it is a press release – to the most devoted devoted sliver of his base.

[Edit: I initially used the term "brief" to avoid having readers think I was talking about a complaint in the ordinary sense rather than the legal sense, but a user comment led me to conclude otherwise, so I changed it "complaint."]

From Red, White & Booze, LLC v. City of St. Pete Beach, decided yesterday by Judge Kathryn Kimball Mizelle (M.D. Fla.):

A city-issued permit allows a restaurant to play outdoor music using only string instruments and allows amplified music for only a few hours each weekend…. Because I conclude that the permit's prohibition of certain kinds of instruments is a content-based restriction on First Amendment-protected expression and the city fails to show that the conditions survive strict scrutiny, I preliminarily enjoin the city from enforcing parts of the permit….

Some excerpts from the court's long analysis:

[1.] The First Amendment protects music, including instrumental music…. [I]nstrumental music can be communicative in at least two ways apart from lyrics ….

First, instrumental music can communicate by association. Certain tunes or musical arrangements, even those without words, can become associated with a concept or message such that the music itself carries that message independent of any verbal accompaniment. For example, John Phillips Sousa's "Stars and Stripes Forever," usually performed without its little-known lyrics, conveys a sense of American national pride through long association with patriotic occasions, even in listeners who may not know the song's patriotic name….

Second, and perhaps more fundamentally, instrumental music is expressive in its own right. It can lift up or cast down the spirit, raise the mind to heaven or distract with terrestrial matters, and stir the human soul to heroic or base deeds, all of which prove instrumental music's power to communicate. Music can evoke these responses in a hearer "completely disassociated from titles, linguistic signals, and other forms of art."

The inherent power of instrumental music to communicate has been recognized for millennia and by many. See, e.g., Plato, The Republic l. 401d (Allan Bloom trans.) ("[R]hythm and harmony most of all insinuate themselves into the inmost part of the soul."); St. Thomas Aquinas, Summa Theologica Pt. II-II, Q. 91, Art. 2 (Fathers of the English Dominican Province trans.) ("[It] is evident that the human soul is moved in various ways according to various melodies of sound.")….

[2.] Music is "[t]he art or science of combining vocal or instrumental sounds to produce beauty of form, harmony, melody, rhythm, [and] expressive content." Music's content, then, is the way in which different sounds are combined to create a particular expressive musical work. Thus, a regulation that prohibits certain musical combinations of sounds is content based, while a regulation that may be justified without reference to how sounds are combined to create instrumental music is not….

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At Masada in the year 74, over 900 rebels chose death before surrender, an extreme stand for freedom. Masada is a famous episode in Jewish history. It was long an icon of Israeli nationalism, although recently some Israelis have turned away from it and what its suicides symbolize.

The Romans attacked Masada four years after they destroyed Jerusalem and the Temple in 70, thereby wiping out the center of the Great Revolt of Jews against Rome (66-70). It was the last of several mopping-up operations. The historian Josephus attributes two speeches to the leader of the rebels at Masada, Eleazar son of Yair.

I discuss those speeches in this excerpt from my new book, Jews vs. Rome: Two Centuries of Rebellion Against the World's Mightiest Empire (Simon & Schuster, 2025):

Masada is a steep-sided plateau, crowned by two palaces and a set of fortifications, that rises dramatically in the wilderness. Masada lies in the desolate and forbidding landscape of the Judean Desert. To the west rise scarred and craggy hills. To the east, the Dead Sea. Beyond the Dead Sea rise the rugged mountains of Moab. The Dead Sea is the lowest place on the surface of the earth….

Masada was a station on an ancient version of an Underground Railroad. It was a place where Sicarii ["dagger men," among the most determined of Rome's Jewish opponents]and other freedom seekers might stop before continuing to Egypt, Libya, Arabia, the Parthian [Iranian] Empire, or Galilee….

For all his harsh criticism of Eleazar and the Sicarii, Josephus attributes two speeches to Eleazar that are moving encomiums of freedom. Indeed, they are among the classic statements on freedom written in ancient Greek. (Josephus wrote in Greek, but Eleazar would no doubt have spoken in Aramaic or possibly Hebrew.)

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In honor of Constitution Day, and the launch of the Heritage Guide to the Constitution, John Malcolm and I authored an essay on National Review Online, titled: "This Constitution Day, Celebrate the Triumph of Originalism."

Five decades ago, originalism wasn't even an -ism. In the academy, at the bar, and on the courts, the Constitution was interpreted as a living, breathing document. Contemporary values mattered more than text, history, and tradition. Yet today, as we celebrate the Constitution's 238th birthday, originalism is now the dominant approach — on the left and the right — to interpret the Constitution.

Even Justice Ketanji Brown Jackson said during her confirmation hearing, "I believe that the Constitution is fixed in its meaning" and that looking to "original public meaning" is "a limitation on my authority to import my own policy." Still, critics charge that lawyers and judges, lacking Ph.D.s, are not qualified to perform historical research and that originalism is partisan and lacking in any sort of neutrality. These claims do not hold up.

For nearly five years, a coalition of 30 judges, 60 academics, and 60 practitioners united to assemble a definitive, comprehensive, and neutral statement about the entire Constitution's original meaning. This ground-breaking research will be published in the fully revised third edition of the Heritage Guide to the Constitution. Justice Samuel A. Alito wrote in his preface that "the new edition of The Heritage Guide is a great place to start" for all Americans who "want to understand what our Constitution means."

These judges, scholars, and advocates who contributed to this book teach us how to determine the Constitution's original meaning in the right chronological order: the history before 1787; the records of the Constitutional Convention; the ratification debates; early practice in the legislative and executive branches; and finally, judicial precedent. More than 200 essays break down every clause of the Constitution through these five steps.

Here are the five steps:

First, what were the origins of the text in the Constitution? . . . .

The second part of the originalist inquiry focuses on what the 55 delegates accomplished in Philadelphia to frame the Constitution. . . .

The third, and perhaps most important phase, was the ratification debates. . . .

The Constitution was formally ratified in 1788, and the new government assembled in 1789. At that point, the fourth phase began. How did the early actors in our government understand the Constitution? . . .

The fifth inquiry, finally, turns to the courts: What have judges, especially on the Supreme Court, said about a particular clause of the Constitution?

We conclude:

This five-step approach reflects originalist best practices that students, lawyers, and the judiciary should follow. The Supreme Court has often referred to the Constitution's text, history, and tradition to understand the document's original meaning. It is important to approach these inquiries in the right order.

9/17/1787: The Constitution is signed.

Happy Constitution Day!

Since 2021, I have served as the Senior Editor of The Heritage Guide to the Constitution. After nearly four years, the work is complete. Today, on Constitution Day, we will launch the fully revised third edition.

You can register to virtually attend our event at this link. Here is the program:

Panel I | Originalism in Theory and Practice: Insights from the Legal Academy

Charles J. Cooper, JD, Founding Member and Chairman, Cooper & Kirk, PLLC

Kurt Lash, JD, E. Claiborne Robins Distinguished Chair in Law, University of Richmond School of Law

Randy E. Barnett, JD, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center and Faculty Director, Georgetown Center for the Constitution

Josh Blackman, JD, Senior Editor, The Heritage Guide to the Constitution and Centennial Chair of Constitutional Law, South Texas College of Law Houston (moderator)

Panel II | The Originalist Turn: A Judicial Perspective

The Honorable William H. Pryor Jr., Chief Judge, U.S. Court of Appeals for the Eleventh Circuit

The Honorable David R. Stras, Judge, U.S. Court of Appeals for the Eighth Circuit

The Honorable Elizabeth L. Branch, Judge, U.S. Court of Appeals for the Eleventh Circuit

John G. Malcolm, Executive Editor, The Heritage Guide to the Constitution and Vice President, Institute for Constitutional Government, The Heritage Foundation (moderator)

Description

Over the past two decades, the federal judiciary has increasingly grounded its cases in the Constitution's original meaning. Students, scholars, lawyers, and judges are now expected to understand and apply the text, history, and tradition of the Constitution. The Third Edition of The Heritage Guide to the Constitution will provide a comprehensive starting point to research issues from before, during, and after the Constitution's adoption. It equips all Americans with an authoritative and accessible introduction to our foundational charter.

Each of these 216 essays, written by over 150 distinguished jurists, scholars, and practitioners, was carefully reviewed to ensure they are of the highest quality and accuracy. This once-a-decade publication strives to be the definitive compendium of each of the provisions of the Constitution.

Join us for this two-panel launch event that includes authors from the both the judiciary and legal academia.

"The time is now right for a third edition of The Heritage Guide to the Constitution. The project continues under the leadership of Josh Blackman and John Malcolm. They are building on the proud legacy of the prior editions. I am confident that this volume will serve a new generation of lawyers, professors, students, and ordinary citizens who are deeply committed to the jurisprudence of originalism I spoke about four decades ago."

— The Honorable Edwin Meese III, Seventy-Fifth Attorney General of the United States

"'We the people' adopted the Constitution, and it is important that all Americans understand what our founding document means. Since the publication of the first edition twenty years ago, The Heritage Guide to the Constitution has been an invaluable resource for judges, lawyers, and the public at large. It marries scholarly depth and sophistication with prose that is readily accessible. The new third edition of the Guide retains the virtues of its predecessors while deepening the discussion of how constitutional provisions were understood when they were adopted. . . . Today, no savvy attorney would disregard original meaning in briefing or arguing an unsettled constitutional question in federal court. For attorneys involved in such cases—and for all other Americans who want to understand what our Constitution means—the new edition of The Heritage Guide is a great place to start."

— Justice Samuel A. Alito, Jr., U.S. Supreme Court

I will have much more to say about this important work very soon.

The Hill (Ashleigh Fields) reports:

Attorney General Pam Bondi on Monday said the Justice Department was investigating an incident involving a Michigan Office Depot employee who refused to print flyers advertising a vigil for conservative activist Charlie Kirk…. Office Depot said last week they removed the employee responsible for denying the order placed by the Kalamazoo County Republican Party.

Here's the Bondi quote, from Hannity on Fox, starting about 4:42:

Businesses cannot discriminate. If you wanna go in and print posters with Charlie's pictures on them for a vigil, you have to let them do that. We can prosecute you for that. But I have Harmeet Dhillon right now in our Civil Rights unit looking at that immediately, that Office Depot had done that. We're looking at that.

But no federal law, to my knowledge, purports to ban stores from discriminating based on the political expression of the material they're asked to print.

Title II of the Civil Rights Act of 1964 bans discrimination by certain places of public accommodation—such as restaurants, hotels, theaters, and places of public amusement—based on race, religion, and national origin. But it doesn't ban discrimination based on political views, and it doesn't apply to retailers, so it wouldn't apply here. It also bans discrimination based on disability, but that's not applicable here either. Businesses can discriminate, just not on bases that the law forbids; and here, federal law doesn't appear to forbid this sort of discrimination.

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The Foundation for Individual Rights and Expression (Aaron Terr & Angel Eduardo) have a good rundown. An excerpt:

While discussing the assassination of Charlie Kirk and campus antisemitism on The Katie Miller Podcast, Bondi said the Justice Department would investigate and prosecute incidents of "hate speech." While she's trying to go into damage control mode and walk back some of her mistakes, it's important to correct our nation's chief law enforcement officer on what is and isn't protected expression….

The idea that "hate speech" is a separate and unprotected category of expression is one that we, unfortunately, have had to debunk time and time again. The fact is there is no "hate speech" exception to the First Amendment, and there can't be. The Supreme Court has rejected the notion on multiple occasions, and the reasons for this should be obvious to someone in Bondi's position….

Early this morning, Bondi published a post on X, attempting to clarify her comments after a wave of negative response. Unfortunately, she only introduced more confusion:

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The charges in the Charlie Kirk case include:

VICTIM TARGETING ENHANCEMENT: In violation of Utah Code Ann. § 76-3-203.14(2), Tyler James Robinson intentionally selected Charlie Kirk because of Tyler James Robinson's belief or perception regarding Charlie Kirk's political expression.

The Utah hate crimes sentencing enhancement statute indeed includes "political expression" alongside race, religion, and the like as covered "personal attributes," and provides,

A defendant is subject to enhanced penalties under Subsection (3) if the defendant intentionally selects … the victim of the criminal offense because of the defendant's belief or perception regarding the victim's personal attribute or a personal attribute of another individual or group of individuals with whom the victim has a relationship….

Some other jurisdictions do the same, though I can't say how many; my quick search pointed to D.C., Iowa, and West Virginia. Some states also impose civil liability for violence targeting people based on, among other things, their political affiliation; consider, for instance California's Ralph Civil Rights Act of 1976:

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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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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

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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