Eugene Volokh's Blog, page 11

[Josh Blackman] What It Means To Be A (Politically) Conservative Jew

[Rebecca Taibleson stated it plainly: "If you were Jewish and conservative, you had to really mean it, and we did."]

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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[Stuart Benjamin] Trump's Complaint Against the New York Times: A Long Press Release that Mangles "Actual Malice"

[It’s mainly praise for Trump: “President Trump secured the greatest personal and political achievement in American history.”]

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."]

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[Eugene Volokh] String-Instruments-Only City Rule for Restaurant's Outdoor Music Is Unconstitutional Content-Based Restriction

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….

For example, the regulation in Ward v. Rock Against Racism (1989) was content neutral because it did not regulate which sounds may be used or how they may be arranged. In Ward, the Supreme Court upheld a New York City regulation requiring private parties renting a Central Park bandshell to use a city-provided technician and sound equipment to control noise. Because "the city require[d] its sound technician to defer to the wishes of event sponsors concerning sound mix" and the policy otherwise limited only noise levels, not what kinds of music the performers could play, the Court concluded that the regulation had "nothing to do with content." …

Ordinances that restrict which instruments may be used, on the other hand, distinguish based on a musical work or performance's content. One of the "large array of elements" that makes up a musical composition or performance is "timbre." "Timbre," also known as "tone color," is the "quality of sound characteristic of a particular type of instrument or voice, as opposed to its register or pitch." For example, while Beethoven's Moonlight Sonata (originally for piano) may be arranged for classical guitar, the piece's content is altered by the change in instrumentation. And one would be hard pressed to claim that Disturbed's heavy-metal cover of The Sound of Silence left unaltered the content of Simon & Garfunkel's original acoustic version….

While the City does not address it, instrument-based regulations pose a real risk of "excising certain ideas or viewpoints from the public dialogue." Regulations of instruments (or other components of music) might have the effect—or be enacted for the purpose—of suppressing musical expression that depends on those instruments. In the case of New York City's cabaret laws, for example, a city regulation "permit[ed] only a piano, organ, accordi[o]n, guitar or string instrument" in jazz clubs and coffeehouses. Though these regulations spoke in "a lingua franca of zoning policy," they were at least arguably motivated by "racism, the contempt for vernacular arts, [and] the fear of what is oppositional or bohemian," including the desire to suppress jazz music. A New York court ultimately refused to enforce the instrument-based restriction, and the city removed it.

To be sure, there is no allegation here that any impermissible purpose motivated the City. Based on the record that the parties submitted, noise reduction, particularly near residential areas, seems to be the goal. Yet "[i]nnocent motives do not eliminate the danger of censorship presented by a facially content-based [rule], as future government officials may one day wield such statutes to suppress disfavored" expression. Instruments are central to music's communicative content, and instrument-based regulations, even if enacted for a content-neutral purpose, risk suppressing musical expression based on "its message, its ideas, its subject matter, or its content." …

[3.] Because the City contends that intermediate scrutiny applies, the City does not argue that the permit survives strict scrutiny [the test for content-based speech restrictions -EV]. Accepting that the City has a compelling interest in limiting excessive noise, nothing in the record shows why a total ban on non-string instruments and bass and a capacious limitation on amplification is "the least restrictive means of" doing so. That conclusion is hardly surprising, given that the Supreme Court has only once held that a law triggered yet survived strict scrutiny in the First Amendment context. Free Speech Coalition v. Paxton (2025) (citing Holder v. Humanitarian L. Project (2010)). The Restaurant has therefore made a substantial showing that the permit violates its First Amendment right to free speech and that it is likely to succeed on the merits….

Kyle David Bass and Timothy W. Treble Weber (Weber, Crabb & Wein, PA) represent the restaurant.

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[Barry Strauss] Masada Speeches

[Two memorable speeches in defense of freedom.]

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.)

As we saw, when Eleazar realized that there was no longer any hope of resisting the Romans or of escaping them, he concluded that mass suicide was the honorable choice, and tried to persuade his followers of that. In the first speech he addressed what Josephus calls only the bravest of his comrades, all males. Josephus's Eleazar reminded them of the creed that inspired the founder of his sect generations earlier: to serve neither the Romans nor anyone else other than God, the only true and righteous Master of humanity. Eleazar stated his pride in being descended from the first Jews to rebel against Rome, and now being the last to bear arms against them (at least the last in Judea).

Josephus has Eleazar admit that he and his followers deserved to die for their crimes—something that Eleazar surely did not say, no matter how much Josephus wanted to believe it. Eleazar urged his men to slaughter their families and each other, and so to choose to die nobly rather than to live on in slavery or be killed by the Romans. He summed up his advice with this exhortation:

Let our wives die unravaged and our children innocent of slavery, and after them let us do each other a generous favor, preserving our freedom as a noble winding sheet.

But many of his followers were unconvinced, so Eleazar gave a second speech, in which he supposedly went on a rhetorical flight of fancy about the immortality of the soul. Once again, he foregrounded freedom. He stated that death is the ultimate liberator of the soul, sounding as much like a Greek philosopher as a believing Jew.

He maintained that there was no shame in being defeated by the Romans, especially since the Romans could not even take credit for the many defeats inflicted on the Jews in recent years by Egyptians in Alexandria, and by Greeks and Syrians in and around Judea. With Jerusalem in ruins, he argued, it seemed hard to continue living. He summed up his advice with an appeal to family and freedom:

Unenslaved by the enemy let us die, and as free men let us leave life together with our children and our wives.

[I]t is unlikely that Eleazar ever uttered the beautiful words that Josephus gave him, although some of those words might have been true to Eleazar's thinking.… [H]istorians in Greece and Rome considered it their responsibility to compose beautiful speeches based on what they believed the occasion called for. Accurate knowledge of what was said was optional. The two speeches by Eleazar, therefore, are probably largely Josephus's creations. And that makes them even more striking.

Josephus chose to give noble words to a man he despised. Furthermore, he graced Eleazar and his followers with what the ancients called "a beautiful death." When the Romans discovered the dead, as previously described, they were amazed at the nobility of the plan, their unhesitating behavior, and their contempt for death.

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[Josh Blackman] New on NRO: "This Constitution Day, Celebrate the Triumph of Originalism"

["As we celebrate the Constitution’s 238th birthday, originalism is now the dominant approach — on the left and the right — to interpret the Constitution."]

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.

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[Josh Blackman] Today in Supreme Court History: September 17, 1787

9/17/1787: The Constitution is signed.

The Constitution

Happy Constitution Day!

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[Josh Blackman] Introducing the Third Edition of "The Heritage Guide to the Constitution"

[Attend the live virtual launch on Constitution Day at 9:30 a.m.]

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.

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Eugene Volokh] AG Pam Bondi Says "We Can Prosecute You" for Refusing to Print Posters for Charlie Kirk Vigil

[But there doesn't seem to be any federal law actually authorizing such prosecutions (or civil lawsuits).]

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.

Now some jurisdictions do ban political discrimination in places of public accommodation (see this article). If such a ban were applied to a print shop that deliberately refused to process an order based on its political content, then it might violate the First Amendment (see the concurrence in Lexington-Fayette Urban County Human Rights Comm'n v. Hands On Originals (Ky. 2019), a case in which Cato Institute and I filed an amicus brief making the First Amendment argument).

That First Amendment claim would be strengthened, of course, by 303 Creative LLC v. Elenis (2023), which recognized a First Amendment right not to create a website for same-sex weddings. It's conceivable that a court might limit the First Amendment defenses to small businesses where the owner would have to do the work personally; cf. Rumsfeld v. FAIR (2006), which upheld certain requirements that universities host certain speech, and distribute related speech, though perhaps the reasoning of 303 Creative would apply even to a large business such as Office Depot.

But none of that even arises here, because those jurisdictions are certain cities and counties, some territories, D.C., and perhaps a few states. None of those laws applies to the Office Depot involved in this incident; and even if there was such a law in Michigan or in the town of Portage (where the store was apparently located), it wouldn't be enforced by the U.S. Justice Department. Perhaps I'm missing something here, but it's hard to see a credible legal basis for AG Bondi's statements.

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[Eugene Volokh] "Why Everything Pam Bondi Said About 'Hate Speech' Is Wrong"

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:

Hate speech that crosses the line into threats of violence is NOT protected by the First Amendment. It's a crime. For far too long, we've watched the radical left normalize threats, call for assassinations, and cheer on political violence. That era is over….

However, Bondi quickly shows that she doesn't understand [the] narrow [true threats] exception, which doesn't cover abstract advocacy of violence or "cheering on" political violence — speech that is, in fact, protected ….

I have some minor quibbles here: The main one is that I wouldn't quite say, as the article does, that "you can call for someone's murder as long as you're not inciting it," since there's also a solicitation exception that may target solicitation of specific crimes (especially against specific victims) even when the "incitement" test isn't satisfied. But on balance, FIRE's statement is excellent, and Bondi's statements on this have been very far from that.

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