The Volokh Conspiracy

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

From Wednesday's decision in Fontainebleau Florida Hotel, LLC v. Botach [Rabbi Shmuley], decided by Magistrate Judge Marty Fulgueira Elfenbein:

Plaintiff's four subpoenas to the AI Providers and its Seventh RFP seek the same information, specifically Defendant's communications with AI platforms since December 3, 2024, concerning various categories of subjects:

All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to the Fontainebleau Hotel.

All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to this litigation.

All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to counsel for Plaintiff.

All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to any employee, owner, or representative of the Fontainebleau Hotel.

All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to any Court Order entered during this litigation.

All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to Judge K. Michael Moore or the undersigned.

In addition, to these six categories, Plaintiff seeks one more category of documents in the subpoenas to the AI providers (but not in the Seventh RFP), consisting of:

All of Defendant's AI Communications regarding Requests 1 through [6] that have, since their creation, been deleted….

Plaintiff [argued] that Defendant's AI communications may reveal the extent of his alleged malice toward Plaintiff, the intentionality underlying his conduct, and evidence relevant to the determination of punitive damages, including whether an exception to Florida's statutory cap applies….

Federal Rule of Civil Procedure 26(b)(1) permits discovery of nonprivileged matters relevant to a party's claims or defenses and proportional to the needs of the case. The Rule expressly recognizes that information within the permissible scope of discovery need not be admissible in evidence to be discoverable…. The District Court's Order at ECF No. [261], which authorized the Parties to conduct "discovery limited to damages," also governs the scope of discovery at this juncture…. Thus, the relevant inquiry is whether the particular AI communications sought by Plaintiff bear a sufficient relationship to the damages issues remaining in this action….

The degree of reprehensibility, the defendant's intent, and the circumstances surrounding the wrongful conduct are … relevant to determining an appropriate punitive-damages award…. To the extent Defendant used AI platforms to generate, revise, or refine statements concerning Plaintiff, its counsel, or its representatives, those communications may reveal not merely the final content of Defendant's statements but also the purpose for which the statements were created, the instructions Defendant supplied, and the effects he sought to achieve. Such information may provide evidence of the intent underlying Defendant's conduct that cannot necessarily be discerned from the resulting public statements alone. The Court does not determine that those communications will establish malice or specific intent to harm; it determines only that they bear a sufficient relationship to those disputed damages issues to warrant discovery….

According[] to Defendant, his alleged hostility does not necessarily prove constitutional actual malice, and it therefore should not be considered when deciding whether punitive damages are appropriate. Constitutional actual malice in a defamation action concerns knowledge of falsity or reckless disregard for truth. By contrast, the reprehensibility inquiry and the specific-intent exception under section 768.73(1)(c) require consideration of the defendant's culpability and intent to harm the claimant. Evidence of hostility, planning, or deliberate efforts to inflict or amplify injury to Plaintiff may be relevant to those questions when sufficiently connected to the alleged wrongful conduct here.

Plaintiff seeks evidence not simply to establish that Defendant disliked the Hotel, but to determine whether Defendant deliberately engaged in conduct intended to cause injury and whether that intent bears on the reprehensibility and statutory treatment of the punitive damages sought. The Court therefore rejects Defendant's argument that because hostility does not necessarily prove constitutional actual malice, it should not be considered when deciding whether punitive damages are appropriate.

Nor does the fact that some requested communications postdate the original publications render them categorically undiscoverable. Subsequent statements and conduct may, depending on their content and context, provide circumstantial evidence of a defendant's earlier intent or reveal a continuing course of conduct relevant to the injury. The temporal relationship between a communication and the alleged injury may affect its probative value, but it does not create an absolute bar to discovery….

The Court does not hold that every subsequent statement by Defendant may support an award of punitive damages. The Supreme Court has cautioned that punitive damages may not be used to punish a defendant for unrelated or dissimilar conduct merely because that conduct reflects poorly on the defendant's character. But the permissible scope of discovery is broader than the scope of evidence that may be ultimately admitted at trial. The present inquiry is whether the requested information is relevant and proportional under Rule 26(b)(1) to the damages issues remaining in this case.

Here, Plaintiff alleges a continuing course of conduct directed toward the Hotel, its personnel, and its representatives, including conduct involving AI-generated content. Plaintiff has also identified testimony from its damages expert concerning the alleged cumulative effect of Defendant's continuing online activity on the Hotel's reputation and business. As such, Defendant's communications with AI platforms concerning the Hotel and the Hotel's employees, owners, or representatives, including Plaintiff's counsel, may reveal information relevant to Defendant's alleged intent to harm Plaintiff, the nature and persistence of the challenged conduct, and the extent to which that conduct allegedly amplified Plaintiff's injuries. The Court therefore concludes that Request Nos. 1 (seeking AI communications about the Hotel), 3 (seeking AI communications about Plaintiff's counsel), and 4 (seeking AI communications about any employee, owner, or representative of the Hotel) in the subpoenas to the AI providers and the Seventh RFP fall within the scope of damages discovery authorized by the District Court….

Further, to the extent Request No. 7 in the subpoenas to the AI providers … seeks Defendant's AI communications regarding Requests Nos. 1 through [6] that have been deleted since their creation, the Court concludes that this Request is authorized by the District Court's Order only to the extent it seeks any deleted AI communications regarding Request Nos. 1, 3, and 4….

But the court rejected the other requests, which dealt with AI communications "concerning or relating to this litigation" (2), "concerning or relating to any Court Order entered during this litigation" (5), and "concerning or relating to Judge K. Michael Moore or the [Magistrate Judge]" (6):

Starting with Request No. 2 in the subpoenas and the Seventh RFP, it seeks all AI communications concerning or relating to "this litigation." That formulation is exceptionally broad. It encompasses potentially every AI exchange on matters having no meaningful connection to the amount of damages or Defendant's alleged intent to harm Plaintiff. Plaintiff has not established that every communication relating to this litigation bears on an issue remaining for the damages trial….

Turning to Request No. 5 in the subpoenas and the Seventh RFP, it seeks all AI communications concerning or relating to any Court Order entered during this litigation. Such communications may include Defendant's attempts to understand an Order, research its consequences, consider procedural options, or evaluate the litigation. The fact that Defendant may have expressed disagreement with, frustration about, or hostility toward a Court Order does not, without a sufficient connection to the alleged injury, make the communication relevant to Plaintiff's damages. Although Plaintiff contends that Defendant's reactions to Court Orders reflect the depth of his hostility and the reprehensibility of his conduct, that theory is too attenuated to justify discovery of every AI exchange concerning every Order entered in this case. The Court therefore finds that Request No. 5 exceeds the permissible scope of damages discovery.

Finally, Request No. 6 in the subpoenas and the Seventh RFP seeks all AI communications concerning or relating to District Judge K. Michael Moore or the undersigned Magistrate Judge. The Court likewise finds that Defendant's private communications with AI platforms concerning judicial officers, without more, do not bear a sufficient relationship to the damages Plaintiff seeks for the alleged harm to the Hotel. The discovery inquiry is not whether Defendant has criticized the judiciary; it is whether the requested information is relevant and proportional to the damages issues remaining in this action. A request encompassing every AI communication about the judges presiding over this litigation exceeds that scope. The Court thus finds that Request No. 6 exceeds the permissible scope of damages discovery.

The Court recognizes Plaintiff's argument that Defendant's criticism of the judicial process may demonstrate the persistence of his alleged hostility. But the Supreme Court has cautioned against using dissimilar conduct as a basis for punishing a defendant for being an objectionable person rather than for the conduct that injured the plaintiff….

And the court rejected the argument that the communications were categorically "protected work product":

Federal Rule of Civil Procedure 26(b)(3)(A) generally protects "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative." The doctrine is designed to protect the adversarial process by preserving the privacy necessary for litigation preparation….

The Eleventh Circuit's interpretation of Rule 26(b)(3)(A) confirms that work-product protection is not limited to materials prepared by counsel but extends to materials prepared by or for a party or its representative in anticipation of litigation….

When determining whether a document is protected under the work-product doctrine, "litigation need not necessarily be imminent … as long as the primary motivating purpose behind the creation of the document was to aid in possible litigation." The document must have been "created principally or exclusively to assist in anticipated or ongoing litigation." "Just because a document may have been used later to assist in litigation … does not mean it was principally prepared for such purpose." …

Here, communications independently generated by Defendant to create, revise, or disseminate content concerning the Hotel, its personnel, or Plaintiff's counsel are not transformed into attorney work product merely because Defendant is a litigant or because the resulting content may bear on this action. To the extent such communications were created for the purpose of producing public-facing statements or pursuing Defendant's independent activities, rather than preparing the defense of this litigation, they ordinarily would not satisfy Rule 26(b)(3)(A). The Court therefore rejects Defendant's blanket work-product objection to Request Nos. 1, 3, 4, and 7.

However, that conclusion does not foreclose a properly supported, document-specific claim of protection. If a particular communication was prepared because of this litigation and otherwise satisfies Rule 26(b)(3), Defendant may assert the protection in accordance with the Federal Rules. Defendant must, however, identify the withheld material and describe the nature of the asserted protection sufficiently to permit Plaintiff to assess the claim without revealing the protected information itself….

[I]f Plaintiff serves the subpoenas on the AI providers and requires them to produce the document directly to Plaintiff's counsel, Defendant will be deprived of the opportunity to determine whether there are any work-product protected documents within the production that should otherwise be withheld and identified on a privilege log. For that reason, the Parties are DIRECTED to meet and confer to discuss the logistics of how the AI providers, to the extent they have responsive materials, will be instructed to produce such materials….

Some backstory on the lawsuit from an earlier post, Magistrate Judge Recommends Massive Sanctions on Rabbi Shmuley Boteach for Violating Court Order in Anti-Semitism Lawsuit (District Judge K. Michael Moore had since adopted the Magistrate Judge's Report):

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[.]'"

Plaintiff further alleges that "Defendant Boteach published a statement that, in part, called for guests 'who have booked' at the Hotel to 'cancel your reservations'" and to "'be smart and cancel and give your hard-earned money to a hotel that doesn't abide antisemites.'" Moreover, Plaintiff alleges:

At all hours of the day and night, Defendant Boteach proceeded to harass the Hotel and its representatives. For example, he posted a "headshot" photograph of the head of the Hotel's outside counsel with the words "DIGITALLY DECAPITATED" and later, at 3:49 am, menacingly threatened that counsel was "about to have a really interesting Shabbat" when he arrived at his synagogue, which Defendant Boteach identified by name and location. Defendant Boteach directly contacted counsel's clergy and posted harassing images of them.

That post also explains the Magistrate Judge's conclusion that the defendant had repeatedly and willfully violated a court order, and therefore ought to have default judgment entered against him as to liability (with further proceedings to take place as to damages).

Sean Alexander Burstyn (Burstyn Law PLLC), Christopher Ara Ajizian (Christopher Ajizian P.A.) and Todd Rapp Friedman represent the hotel.

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10/24/1894: U.S. v. E.C. Knight argued.

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Today the en banc Fifth Circuit ruled that illegal aliens do not have a constitutional right to a bond hearing pending deportation. The vote was ostensibly 10-7, although the vote is better characterized as to 9-8. Judge Richman only concurred in judgment. As I've said many times before, the en banc Fifth Circuit is effectively split on a razors-edge.

Guess which judge wrote the lead dissent finding that illegal aliens have the right to roam freely "to whatsoever place" their "own inclination may direct; without imprisonment or restraint"? I'll give you a hint: it's the same judge that President Trump made a deal with to pick his own replacement.

Let's start with Judge Ho's concurrence:

A nation ceases to be a nation if it can't protect its borders. Congress has chosen to police our borders by detaining illegal aliens found in our country pending their removal proceedings. See 8 U.S.C. § 1225(b)(2)(A).

According to our dissenting colleagues, however, illegal aliens have not only a de facto constitutional right to remain in our country unlawfully, but an incentive to make this their home. That's because, to quote the principal dissent, once an alien has "acquired a domicil or residence" in America, it no longer matters that they are breaking the law to be here—their detention becomes an offense to "'liberty' . . . at its core," and an affront to freedom "at its most basic," namely, "freedom from physical restraint." Post, at 101, 102, 115 (Southwick, J., dissenting). So they must have "the power of locomotion" and the right to roam freely "to whatsoever place one's own inclination may direct." Id. at 102, 103 (quoting 1 William Blackstone, Commentaries on the Laws of England 130 (1769)).

Judge Southwick's dissent was joined by Judges Stewart, Graves, Higginson, Douglas, and Ramirez--all of the Democrat-appointed judges on the court. Judge Richman concurred in the judgment. Judge Haynes did not join the dissent. She did a bit more than her usual practice on the en banc court of saying nothing--a topic for a future post--and actually wrote a full paragraph.

Why would the Trump Administration actually trust Judge Southwick to pick a replacement who would even be marginally conservative?

Does Todd Butler agree with Judge Southwick that denying a bond hearing to illegal aliens is an affront to freedom "at its most basic"? Does Butler agree with Judge Southwick that illegal aliens have the right to roam freely "to whatsoever place" their "own inclination may direct; without imprisonment or restraint"? Would Butler compare, as Judge Oldham noted, "modern-day immigration detention to the Tower of London, where English monarchs would 'secretly hurry[a man] to gaol, where his sufferings are unknown and forgotten,' and where clandestine detention was worse than 'open despotism.'"

Would Butler possibly agree with this passage from Judge Ho:

Americans like to boast that we live in a country where no one is above the law, not even the President. But if that is so, then there's no denying that these habeas petitions, far from affirming American liberty, are profoundly un-American—because they send the message that the only people who are above the law in our country are the ones who violated our laws to get in.

Consider a world where Judge Butler was on the court. Imagine that Senior Judge Southwick was on the original three-judge panel (he was in fact on the three-judge panel). Remember, Judge Richman only concurred in judgment, as she disagreed with the majority's habeas ruling. With this divide, the whole court would have split 9-9 on the constitutional question. And that is the cost of allowing Judge Southwick to stay on the court and giving Judge Butler another vote. As I noted before, "I would prefer Judge Southwick to have one vote rather than two votes."

For people who actually care about the en banc Fifth Circuit, and not just maximizing the number of total Trump circuit court appointments, the Butler nomination is an unforced error. Let Judge Southwick keep extolling the constitutional rights of illegal aliens from his chambers in Austin. He's choosing Texas, I can tell. At some point, adverse possession kicks in, right?

And for those keeping track at home, Mississippi has three circuit judges for about three million people and Texas has nine circuit judges for more than thirty million people. The math just doesn't math. Hillary Clinton said the Supreme Court should be expanded to thirteen so that there could be one Supreme Court Justice for each circuit. (Because of course the Federal Circuit needs its own circuit justice.) If that's the case, then make Texas its own circuit to justify yet another Supreme Court justice. That math does math!

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New case! In Feb. 2025, federal agents raided IJ client Mario Ayala Cruz's check cashing and money transfer business in Glendale, Ariz., seizing computers, cell phones, documents, and over $450k in cash and checks. And then … nothing. Mario, who runs the business (by the book) with his wife and adult children, has not heard anything for 20 months. No charges have been filed, and the feds are way past the 60-day deadline to either initiate civil forfeiture or return the property. Which violates the Fourth Amendment and federal law—and was extra crummy because it forced Mario to cut short his final visit with his dying father in Mexico. Click here to learn more.

New on the Short Circuit podcast: We get a Rocky Mountain high at the Tenth Circuit Bench & Bar Conference. Learn all about what makes the circuit tick from the experts we met there, including our first guest from a circuit historical society.

For decades, federal guidance has limited immigration enforcement at "sensitive locations," including houses of worship. Recently, DHS and ICE release new policy guidance allowing "discretion" and "case by case" decisions regarding enforcement at churches, synagogues, and mosques. Religious organizations sue. D.C. Circuit (over a dissent): And they have standing.
After spending 7.5 years in pretrial detention at Rikers, man is finally sentenced to a max of 7 years—time to let him out! But prison officials drag their feet for another 17 days. Second Circuit: Case undismissed. He plausibly alleged the city and its officials are turning a blind eye to overdetention.
Sure, says two-thirds of this Third Circuit panel, the plaintiff church has shown a good bit of evidence that Collier, Penn. officials rejected its application to build a 13k-square-foot shrine out of animus towards the church's pro-life advocacy, but that doesn't mean it gets a preliminary injunction because there's absolutely nothing "preliminary" about building a 13k-square-foot shrine. Read More

Sen. Dan Sullivan (R-Alaska). (US Senate)

Today, the Trump Justice Department filed a federal lawsuit seeking to block Alaska Senate election results on the grounds they might be influenced by voter "confusion" between incumbent Republican Senator Dan S. Sullivan and a separate Republican candidate with a very similar name (Dan L. Sullivan). I previously wrote about the issues raised by the two Dan Sullivans here. As I pointed out in the earlier post, there is no legal basis for overturning congressional election results based on voter confusion, and any such action would likely violate the First Amendment. See also this analysis by election law specialist Rick Hasen.

I would add that any such federal action also runs afoul of states' primary authority over election procedures. The Elections Clause of the Constitution gives states primary authority over "The Times, Places and Manner of holding Elections for Senators and Representatives," subject to Congress' power to modify these rules by legislation. Congress has not enacted any statute allowing overturning of election results based on possible "voter confusion."

If "voter confusion" were a legitimate reason to overturn election results, that would imperil a great many election winners, as voter ignorance - and exploitation thereof by candidates - is a widespread and longstanding problem. I covered some of these points in my previous post about the two Dan Sullivans:

Donald Trump is a particularly egregious example, going all the way back to his first campaign in 2016, and more recently with his lies about the 2020 election and other issues. But more conventional politicians also often resort to lies and deception, even if not to the same degree. President Obama, for example, famously lied when he claimed that, under the Affordable Care Act, "if you like your health care plan, you can keep it." That deception won the 2013 Politifact Lie of the Year award. But it still helped Obama get reelected in 2012. I am not sure exploiting voter confusion about names is any worse than exploiting their ignorance about policy issues like crime, immigration, and health care….

Ultimately, both exploitation of voter confusion about names and other deceptions used in campaigns seek to exploit widespread voter ignorance. Because of the combination of "rational ignorance" (lack of incentive to seek out political information) and "rational irrationality" (lack of incentive to engage in unbiased evaluation), most voters know little about government and public policy, and often do a poor job of evaluating the information they do know. This makes them vulnerable to deception and manipulation, and incentivizes politicians to lie and otherwise distort the truth.

Voter confusion about candidates with similar names is just another example of this broader problem….

There is no easy solution to the problem of voter ignorance. But I assess a range of possible options in my 2023 article on "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance, and in my earlier book Democracy and Political Ignorance. I believe the best approach is to make fewer decisions at the ballot box and more by "voting with your feet," where incentives to seek out information and evaluate it wisely are much better. But I recognize that any effective approach will take time, and there may be no one fix that is sufficient by itself. We may need to pursue multiple strategies. In the meantime, voters are likely to continue to be ignorant and confused about a variety of issues, and politicians and interest groups are likely to keep on exploiting that.

Many of these other voter ignorance problems are far worse than any potential confusion between candidates with similar names, a problem that only comes up relatively rarely.

UPDATE: Rick Hasen has a helpful analysis of the Alaska lawsuit here:

DOJ has no power to decide which candidates can appear on the ballot. The sole basis that DOJ asserted for trying to block the state's certification process is the National Voter Registration Act's preamble that reads that the act is designed to "protect the integrity of the electoral process." That preamble of course gives no power whatsoever to the federal government to do anything. It does not give DOJ the power to determine ballot access or block certification of a federal election. The Alaska Supreme Court decided the state law ballot access question back in June, allowing the second Sullivan to appear on the ballot.

A short excerpt from the long opinion in Jackson Fed. of Teachers v. Fitch, decided yesterday by Fifth Circuit Judge Jerry Smith, joined by Judge Kurt Engelhardt:

In April 2025, Mississippi enacted House Bill 1193 (H.B. 1193), a law designed to keep Mississippi public education funds from being spent on diversity, equity, and inclusion ("DEI") initiatives and similar controversial programs. The law prevents government-run institutions from requiring activities such as diversity training or pushing DEI ideology, so defined, in the course of government-funded business.

H.B. 1193 does four main things. First, it prevents educational institutions from mandating DEI programs and diversity trainings in a variety of contexts. Second, it stops public educational institutions from punishing students for their views on DEI. Third, it prohibits regulated institutions from endorsing or promoting DEI through course materials. Finally, it prevents institutions and their educators from otherwise engaging in DEI methods or actions, preventing bad actors from circumventing prohibitions and frustrating its purposes. The statute also creates an administrative process to handle claims that a given educational institution is not in compliance. H.B. 1193 excepts several activities from its sweep, including scholarly work, the activities of students and their groups, and creative engagement.

Plaintiffs sued, claiming (among other things) that the law violated the First Amendment, but:

The proceedings in the district court were a botch job, to say the least. Judge Henry Wingate issued a temporary restraining order ("TRO") enjoining enforcement of H.B. 1193 that contained several factual assertions nowhere to be found in the record, or indeed, in any proceeding of the case. Those included mention of plaintiffs and defendants not in the complaint, supposed "declarations" from non-existent or never-present individuals, false quotations purporting to be taken from the text of H.B. 1193, and several erroneous claims that the law had already led to the demise of apparently fictitious programs.

After this came to light, Judge Wingate replaced the TRO without explaining.

Forging forward despite the bungled TRO, Judge Wingate issued a pre-enforcement preliminary injunction. The various state defendants appeal.

At oral argument in this court, it was discovered that even the "corrected" TRO—which was incorporated by reference into the preliminary injunction order—still contained hallucinated information (namely, a citation to a purported Fourth Circuit case, "Cousins v. School Bd. of City of Norfolk," that does not exist).

AI in Court Free Speech

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10/23/1991: Justice Clarence Thomas takes oath.

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From N.Y. State Div. of Hum. Rts. V. D. Auxilly NYC LLC, decided today by New York appellate judges Sallie Manzanet–Daniels, Manuel Mendez, Barbara Kapnick, Bahaati Pitt–Burke, and Matthew Parker–Raso:

Complainant, at the time a Missouri resident, emailed D. Auxilly, a New York based business that produces and sells attire, including bridal outfits, to inquire about a bridal jumpsuit she had seen advertised on one or more of D. Auxilly's social media pages. Specifically, complainant requested information about payment options for the jumpsuit. Complainant also informed D. Auxilly that as her fiancé had "fallen in love" with it after struggling to find anything she liked, complainant wanted to purchase it for their upcoming wedding.

Dominique Galbraith, D. Auxilly's owner and operator, responded on behalf of D. Auxilly advising complainant of the payment requirements of the business but that she would not be able to make the garment for a same-sex wedding because it would go against her religious beliefs. She also urged complainant and her fiancé to reconsider getting married….

The First Amendment does not shield D. Auxilly from liability for this discrimination. Unlike the baker in Masterpiece Cakeshop v. Colorado Civil Rights Comm (2018), D. Auxilly was not asked to design and create customized items which might constitute an "expressive statement." Nor was it tasked with creating a customized wedding website, as in 303 Creative LLC v. Elenis (2023). Instead, D. Auxilly refused to sell the wedding garment it had previously designed and which it had marketed to the public. While the garment likely would need to be adjusted for sizing, this potential sizing alteration would not constitute an expressive statement. Neither would D. Auxilly's "speech" be compelled here by requiring it to sell the previously designed and marketed garment.

Free Speech Religion and the Law sexual orientation

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Way back in May 2024, I wrote about Miller v. McDonald. Amish parents challenged New York's vaccine mandate on Free Exercise Clause grounds. In December 2025, the Supreme Court GVR'd the case in light of Mahmoud. Unsurprisingly, the New York courts thought Mahmoud changed nothing. The case is now back before the Supreme Court. A cert petition was filed on September 28.

The New York Times covered the case in an article titled, "Amish Families Pushed to Undo a Vaccine Law. Then Measles Arrived." The undercurrent of the article is that Amish children deserve to become sick because their parents did not vaccinate them. The New York Health commissioner made this point expressly:

In a petition filed on Sept. 28, the Amish asked the U.S. Supreme Court to force New York to grant religious exemptions to immunization rules, as most states do. A previous ruling gave the Amish reason to think they might have a chance at prevailing.

But then a wave of measles cases began sweeping through Amish communities. Gov. Kathy Hochul declared a statewide health emergency this month after more than 100 people fell ill with measles.

"Perhaps Mother Nature, by delivering a measles outbreak in New York's Amish community coincident with this case returning to the Supreme Court, is her not-so-subtle hint," said Dr. Howard Zucker, who was state health commissioner when New York eliminated religious exemptions.

If only the Amish people chose the state over their religion, and took the hint, they wouldn't have so many sick children! I am appalled by Zucker's arrogance and hostility to religion. He is stating that "Mother Nature" is sending a signal to the Amish that adhering to their religion is making children sick. In effect, nature is punishing the Amish for not submitting to Kathy Hochul.

Chief Justice Burger described this unique community in the Supreme Court's unanimous Wisconsin v. Yoder decision:

The history of the Amish sect was given in some detail, beginning with the Swiss Anabaptists of the 16th century, who rejected institutionalized churches and sought to return to the early, simple, Christian life deemphasizing material success, rejecting the competitive spirit, and seeking to insulate themselves from the modern world. As a result of their common heritage, Old Order Amish communities today are characterized by a fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence. This concept of life aloof from the world and its values is central to their faith.

A related feature of Old Order Amish communities is their devotion to a life in harmony with nature and the soil, as exemplified by the simple life of the early Christian era that continued in America during much of our early national life. Amish beliefs require members of the community to make their living by farming or closely related activities. Broadly speaking, the Old Order Amish religion pervades and determines the entire mode of life of its adherents. Their conduct is regulated in great detail by the Ordnung, or rules, of the church community.

It is especially awful for Zucker to weaponize "Mother Nature" (capital letters) against a people whose life is devoted to "harmony with nature."

This is not the first time New York has accused insular religious communities of spreading diseases. In October 2020, then-Governor Andrew Cuomo shared a photograph of religious Jews congregating in close quarters as evidence they were spreading the disease. He said, "I'm going to say to the orthodox community tomorrow if you don't agree then we will have to close down your religious institutions." The only problem was that the photograph was from the 2006 funeral of Hassidic rabbi Moshe Teitelbaum. And the photo wasn't even from New York City. It was taken in the Orange County village of Kiryas Joel. This charge really isn't new. Jews were blamed for the spreading of the Bubonic Plague, among other pandemics.

The Times gestures at the religious reasons why the Amish oppose the vaccines:

But many Amish families regard vaccine mandates — and government intrusion in their schools — as a greater threat to the health of their community than measles. Their religion calls for adherents to live together in tightknit religious communities apart from the modern world and its influences.

"Our almighty God wants us to fully put our faith and trust in him, which is in conflict to put our trust in vaccines," Ezra Wengerd, an Amish leader who represents the 26 families that send their children to the three schools, told a judge in 2022.

The Amish have been practicing their faith for more than three centuries and have principled reasons to oppose vaccines. Indeed, the Amish have a far stronger case to object to vaccines than many people who made up their beliefs during the pandemic. Shame on the New York government for singling out this tradition in such hostile terms.

Zucker and others do not seem to know or care what it means to place faith in a higher power. Instead, Zucker thinks Mother Nature is seeking retribution against the Amish children.

Yet, perhaps we should be grateful. This sort of statement should feature prominently in future briefing. Indeed, Zucker demonstrates the sort of hostility we've seen in past victories for religious liberty. In the leadup to Fulton v. City of Philadelphia, a government official said that "things have changed since 100 yearsago," and "it would be great if we followed the teachings of Pope Francis, the voice of the Catholic Church." And in Masterpiece Cakeshop, a commissioner said "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust." These statements are prima facie evidence of religious hostility.

So thank you Mr. Zucker. You've made the odds of your state losing far greater.

People sometimes ask me whether I would ever want to live in New York again. The answer is 1000% no. This state consistently exhibits so much hostility towards people of faith. Here in Texas, some people object to posting the Ten Commandments on the wall of classrooms as some evidence of hatred. But no piece of paper can compare to the overt disdain towards traditional religions that people like Zucker and Cuomo demonstrate. So long as religious people get vaccinated and attend services on Zoom, they are in good standing with the government. But as soon as any person of faith deigns to disagree with elite opinions, then Gaia will seek vengeance.

These people are living in an episode of Captain Planet. (I cringe that as a child I absorbed this Turnerfied propaganda.)

I'm delighted to be able to pass along this item from University of Chicago law professor Albert Alschuler:

Gemini Explains to a User (Me) Why Its Programming Produces Poppycock

I didn't mean to summon AI from the vasty deep. Professor Bradley A. Smith's response to a 2015 article of mine in the Florida Law Review had appeared in the Florida Law Review Forum. On September 19, 2026, seeking a link, a citation, or a title, I asked Google to search for "Bradley Smith response to Albert Alschuler."

Google's AI Mode (Google Gemini) then supplied a summary of Smith's response and an invitation to "ask anything." I accepted its invitation.

ME: Did Alschuler reply to Smith?

GEMINI: Yes, Albert Alschuler replied to Bradley A. Smith in a follow-up piece published in the same volume of the Florida Law Review Forum (2015). [Note: I hadn't replied. Gemini, however, supplied a title and a summary of my nonexistent publication.]

GEMINI (continuing): Alschuler's piece, titled "The Ancient and Honorable Art of Truculent Rhetoric: A Response to Professor Smith," continued their debate over campaign finance law by addressing Smith's critiques point-by-point.

Key Points of Alschuler's Reply:

Deconstructing "Truculent Rhetoric": Alschuler lightheartedly but firmly addresses the aggressive nature of Smith's libertarian style, defense of Citizen's United, and absolute deregulation approach.

Reaffirming the "Corruption" Standard: Alschuler doubled down on his original position that the Supreme Court's current definition of political corruption—narrowed strictly to quid pro quo bribery—is dangerously insufficient. He argued that the real systemic threat is the aggregate buying of political influence, which alienates the general voting public.

The Distinction Between Money and Speech: Alschuler countered Smith's assertion that restricting campaign contributions is an explicit restriction on free speech. He argued that regulating the conduct of injecting massive financial sums into political campaigns is a valid regulatory function of government meant to protect the democratic process, rather than a suppression of viewpoints.

Artificial Intelligence

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From Judge Kenneth Bell (W.D.N.C.) today in Global Plasma Solutions, Inc. v. Elsevier Ltd Inc.:

In this action, now spanning over four and a half years and nearly 400 docket entries, Plaintiff Global Plasma Solutions, Inc. ("GPS") contends that its air purifier business was greatly harmed by a defamatory article published in Building and Environment ("BAE"), a scientific journal owned by Defendant Elsevier …. Specifically, GPS alleges that several critiques of its "bipolar ionization" technology were false and Elsevier's advertisement of BAE's articles as "peer reviewed" violated the Lanham Act….

The law provides strong protection for scientific inquiry and debate on matters of public concern. This includes the allegedly defamatory article, which was published in March 2021 at the height of the COVID-19 pandemic when air purification technologies were under intense scrutiny.

Because the Court finds that GPS was a limited purpose public figure with respect to the safety and efficacy of its bipolar ionization technology and cannot establish by clear and convincing evidence that Elsevier published the article with "actual malice," Elsevier is entitled to summary judgment on GPS's defamation claim. Similarly, a reasonable jury could not find that Elsevier is liable for false advertising under the Lanham Act, where there is insufficient evidence that a substantial portion of the intended audience would be misled by the truthful statements that the article was "peer reviewed" or that an Elsevier advertisement was a proximate cause of GPS's claimed diminution in its corporate value….

Free Speech Libel Right of Access

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[This post was co-authored with Professor Seth Barrett Tillman.]

There have been many news reports suggesting that the United States Department of Justice may pursue denaturalization proceedings against Representative Ilhan Omar. These proceedings can take the form of a civil suit under 8 U.S.C. § 1451. The United States may also bring a criminal indictment under 18 U.S.C. § 1425. While the criminal statute has a ten-year statute of limitations, the civil statute does not have any statute of limitation. Moreover, the civil statute requires a lower burden of proof: "clear, convincing, and unequivocal evidence which does not leave the issue in doubt." The civil proceeding also does not afford the defendant a jury trial. USCIS and Congress.gov have published detailed analyses of how denaturalization operates.

Here, we do not opine on the merits of a potential civil or criminal denaturalization proceeding against Omar, or what sorts of procedures and defenses she would have access to. Instead, we intend to explain what would happen to her congressional seat in light of denaturalization proceedings.

We start with the relevant constitutional text. Article I, Section 5, Clause 1 provides that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . ." (emphasis added) And Article I, Section 2, Clause 2 provides that "No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."

Since the beginning of the Republic, there have been challenges as to whether a member-elect has the requisite years of citizenship. Professor Derek Muller's entry in The Heritage Guide to the Constitution (3d) on the Judge of Elections Clause explains two historically noteworthy challenges to qualifications:

In the decades after the Founding, both houses of Congress routinely judged the elections, returns, and qualifications of their members. One early and contested instance arose in 1793. The Pennsylvania legislature elected Albert Gallatin to the [United States] Senate. Gallatin, a member of the [Jeffersonian] Democratic-Republican party, was a rival of Alexander Hamilton, a prominent Federalist. Doubts arose about Gallatin's eligibility for the Senate. He was born in Switzerland and had resided in the United States for thirteen years. But it was unclear whether Gallatin had been a U.S. citizen for the requisite nine years. Two Senate committees dominated by Federalists found against Gallatin, and he was barred from the seat. . . .

A[] notorious contest during Reconstruction came from the election of Hiram Revels [in 1870], the first black Senator. Opponents first charged that his election was improper because the governor of Mississippi who signed his certificate of election was only the provisional governor and therefore not authorized to certify the legislature's selection of Revels. Challengers also claimed that Revels was not "nine years a citizen" because he was not a citizen under the Supreme Court's decision in Dred Scott until the ratification of the Fourteenth Amendment in 1868 [and so Revels was only a citizen between 1868 and 1870]. Defenders noted that Revels had previously resided in Ohio, where he had voted in that state and must have been a citizen. In the end, the Senate seated him over the objection of a few Democrats.

For the sake of argument, let us assume that the United States initiates civil denaturalization proceedings before the new Congress meets in January 2027. This procedure would certainly take some time, and it may not even reach a final judgment (up to the resolution of certiorari) during the duration of Omar's (likely) elected two-year term. Still, absent a final judgment, we sketch out several possible issues.

First, could the House of Representatives determine that Omar lacks the qualifications to be a member of Congress (i.e., a citizen for seven years) in the absence of some judicial finding by a federal district court? The answer is "yes." The House of Representatives is a coordinate branch of government that can make its own determinations of fact when seating a member. The Constitution empowers the House to determine if a member-elect is a citizen and for how long he has been a citizen. There is no need to wait for a federal court to rule on the matter. No such prior judicial proceedings occurred in the case of Albert Gallatin. That question and its answer, we think, should not be controversial.

Second, could the House of Representatives judge Omar's qualifications in the middle of her elected term? Or, can those qualifications only be judged at the time when she is seated? We think it is reasonable to suggest, based on the text, that qualifications should only be determined at the outset of the new Congress, or when a member is first admitted and allowed to take her oath, but we admit there is no definitive answer here. The alternative view is that a member must have the requisite qualifications over the entire course of her elected term, and her house always retains the ability to adjudicate those qualifications if an objection is raised by another member. In these circumstances, a member could simply raise an objection to Omar's qualifications and seek a roll call vote. If determinations about qualifications continuously require a mere majority, as they do at the start of a two-year congressional term, then a mere majority might effectively "expel" Omar. On the other hand, it might be argued that where a mid-session disqualification vote has the effect of expulsion, then a two-thirds vote is required. We are not aware of any congressional precedents that provide clear analogues or guidance on this point.

Third, what happens at noon on January 3 when the new Congress meets? At that juncture, a member could raise an objection to Omar's qualifications. And under established House precedents, Omar would be asked to "step aside" until her qualifications are settled. The potential chaos that could follow is ably described in an excellent article by Professor Brian Kalt:

Back in February, I submitted a letter to the editor of the New York Times objecting to how I was often labelled as a "conservative" even as liberal law professors did not receive that label. The Times did not publish the letter, so I posted it on the blog. I thought that was the end of the matter, but I was wrong. Patrick Healy, is the assistant managing editor for Standards and Trust, reached out to me. He was starting a newsletter and podcast that responds to reader concerns. We spoke for about fifteen minutes about this issue.

That interview has now been posted here. It begins this way:

PATRICK: So Josh, you reached out after The Times twice described you as a, quote, conservative, end quote, law professor. And you said the conservative label was accurate, but that The Times applies labels like conservative and liberal inconsistently to law professors and analysts, and that a scholar's view should speak for itself. I'd welcome you unpacking that.

JOSH: Sure. This has been a longstanding grievance of mine, and not just against The Times, against all the major media outlets. I'll frequently talk to a reporter and they'll say something like, "How would you identify yourself?" And they're not asking for my pronouns. They're trying to get at my politics. And sometimes I'm of course like, you know, "I'm a law professor." And they say, "Well, how do you characterize yourself?" It's like, "Well, I'm a constitutional law professor," and I know what they're getting at. Eventually I just say, fine, if you want to call me conservative, you can.

And I suspect the reason why they do this is to give their readers sort of a grounding of where I'm coming from. And if this was sort of a neutral policy that's applied across the board, I wouldn't have much ground to object, but I find that it's not.

Back in February of this year, I was quoted twice in The New York Times back to back in the span of 24 hours, which is, you know, pretty cool. But I sort of noticed that both of the references were to Josh Blackman as a "conservative" law professor. And I just thought that was strange. So I went through the Westlaw archives and just sort of searched for "liberal" law professors and "conservative" law professors in the New York Times database, and it was far more likely that you're identifying a conservative than a liberal. And those numbers are stacked because liberals are quoted even more often. So the numbers even have a greater disparity.

And this sort of reinforces, I think, a perception that both the academy and frankly the media views a liberal position as a neutral position. And the conservative position is the other, the outlier. And that's why you have to have this sort of nomenclature, this sort of adjective to describe it. So I wrote a letter to the editor back in February. You did not publish it. OK. That's your prerogative, but I do appreciate the chance that you reached out to me and I'm glad to talk with you about it right now.

PATRICK: Yeah. Josh, I think there's real truth to your critique and it's something we need to do a better job on. It's kind of exactly what you said in terms of why we do it. We're trying to give readers more factual context about who's speaking or why their views rise to the level of a story. Sometimes it's notable that it's a conservative legal scholar criticizing President Trump's politics more than it might be surprising that a liberal is doing that.

Read the whole interview. I thought Healy was very fair. I hope journalists at the Times and other outlets give more consideration to this issue.

It's been a busy week for the mainstream media. I was also interviewed by NPR for All Things Considered about the Supreme Court publisher recusals.

From Knife Rights, Inc. v. Blanche, decided yesterday by Fifth Circuit Judge Jennifer Walker Elrod, joined by Judges Don Willett and Cory Wilson:

This case presents a Second Amendment challenge to the Federal Switchblade Act (FSA)'s restrictions on switchblade knives. {Section 2 of the FSA, codified as 15 U.S.C. § 1242, … place[s] a fine of up to "$2,000 or imprison[ment] not more than five years, or both" for anyone who "knowingly introduces, or manufactures for introduction, into interstate commerce, or transports or distributes in interstate commerce, any switchblade knife."}

Applying the framework articulated in New York State Rifle & Pistol Association, Inc. v. Bruen, we hold that the FSA is unconstitutional. We determine that switchblade knives qualify as "Arms" and are covered by the "plain text" of the Second Amendment. Because the regulation implicates the amendment, the government bears the burden of establishing that the FSA comports with well-established principles of the Second Amendment and its regulatory tradition. The government fails to meet its burden. Specifically, the FSA's restrictions on the introduction, manufacture, transportation, and distribution of switchblades fail step two's "how" analysis….

Self-Defense Guns

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From Butler v. Lipscy, decided Monday by Minnesota Court of Appeals Judge Keala Ede, joined by Judges Diane Bratvold and Jon Schmidt:

Butler alleged that Lipscy engaged in acts of harassment targeting Butler and her children, including: following, monitoring, or pursuing Butler; making unwanted visits to Butler; frightening Butler with threatening behavior; taking pictures of Butler without permission; and using social media to harass Butler….

The facts, according to the appellate court's summary of the trial court findings, were this:

At the time the district court issued the HRO, Butler was a licensed marriage and family therapist who served "historically marginalized communities." This included members of "the Queer community," which Butler defined as "the Two Spirit (2S)/Gay/Lesbian/Bisexual/Transgender/Intersex/etc. community as a whole and individually." Butler was also "active in her local Itasca Pride board and community as a volunteer and current board member." She has three children, one of whom is "non-binary."

Lipscy held "Christian beliefs" that she posted about on the internet. And Lipscy administered a webpage called "Grand Rapids Rant."

Itasca Pride held a festival on June 23, 2024. Before that event, Lipscy posted on the internet about a public gathering called, "Protect the children from Pride/Drag show and Walk with Prayer," which Lipscy scheduled for the same date, time, and location as the Itasca Pride Festival. Before the events occurred, Lipscy wrote on the internet: "But if you cause one of these who trust in me to fall into sin, it would be better for you to have a large millstone tied around your neck and drowned in the depths of the sea. #BeTheirVoice Matthew 18:6." Lipscy also used the internet to encourage people to attend and to wear white shirts in opposition to Itasca Pride and in celebration of "traditional family values." At the June 23 Itasca Pride event, Lipscy took pictures of Butler's children, and Butler's husband told Lipscy to stop.

Free Speech Harassment Trans sexual orientation

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10/22/1915: Hadacheck v. Sebastian argued.

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