Eugene Volokh's Blog, page 12

[Eugene Volokh] Hate Crimes Targeting People Based on Political Speech (as in the Charlie Kirk Murder)

The charges in the Charlie Kirk case include:

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

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

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

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

All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51 [California's public accommodations antidiscrimination statute], or position in a labor dispute, or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.

I leave it to others to decide whether it's good to set up special hate crimes enhancements (the Court has held they are constitutional, see Wisconsin v. Mitchell (1993)), and to include targeting based on political expression; I just wanted to report that these laws do exist in some jurisdictions.

The post Hate Crimes Targeting People Based on Political Speech (as in the Charlie Kirk Murder) appeared first on Reason.com.

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

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

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

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

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

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

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.

The hotel sued, and the court allowed the defamation claim to go forward:

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[.]'" Defendant argues that "alleged defamatory statements amount to pure opinion" and that "expressions of opinion, regardless of how offensive, [including] that a party or entity is 'racist' or 'Nazi'[,] are not actionable as defamation[.]"In Response, Plaintiff argues that "[w]hether the Hotel trespassed Defendant Boteach because he is 'too Jewish' is capable of being proven true or false." In Reply, Defendant argues that "[t]he statement that Defendant was banned for being 'too Jewish' is obviously Defendant's hyperbolic opinion based on the sequence of events and circumstances laid out in [the FAC]."  The Court disagrees. The FAC alleges that:

Defendant Boteach knew that he was disseminating false statements because his claims were about events in which he purported to have been personally involved. For example, Defendant Boteach edited a letter that stated he was trespassed because of his threats of litigation by misleadingly deleting from that letter—that he had access to and read—the basis of the trespass (i.e., his threats of litigation) and then he claimed the Hotel trespassed him because he is "too Jewish" (i.e., falsely attributing those words to the Hotel). The claim that Defendant Boteach was trespassed from the Hotel for being "too Jewish" was false because Defendant Boteach was trespassed pursuant to Hotel policy to not entertain people who are threatening litigation against the Hotel.

Accepting the FAC's allegations as true, the Court finds that Defendant's statement that he was "banned for being 'too Jewish'" is capable of being proven false, and thus, a statement of fact or, in other words, the statement is actionable as defamation.

Sean A. Burstyn (Burstyn Law PLLC) represents the hotel.

The post Hotel's Defamation Lawsuit Against Rabbi Shmuley Boteach Over Anti-Semitism Allegations Can Go Forward appeared first on Reason.com.

[Paul Cassell] Why Charlie Kirk's Murderer Is "Death Eligible" Under Utah's Death Penalty Statute

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

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

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

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

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

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

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

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

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

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

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

Sosa-Hurtado entered the smoke shop and pulled an assault rifle from his jacket. According to Isabel's testimony, when Sosa-Hurtado entered the shop, Stephen and Isabel were standing three to four feet apart from each other behind the counter. A witness who was inside of the shop at the time of the shooting, however, said that Isabel and Stephen were closer—perhaps only two feet apart. Stephen stood at the cash register behind the north counter while Isabel stood behind the east counter. Sosa-Hurtado fired one shot at Isabel with his assault rifle, missing him but shattering a glass case, which hurled glass and wood into Isabel's leg, causing him to fall to the ground.

Sosa-Hurtado then turned towards Stephen. He fired a shot at Stephen, which hit Stephen's hand. Stephen fell on the floor behind the counter. Isabel began to get up and move towards Stephen. With his back to Isabel, Sosa-Hurtado leaned over the counter, positioned the rifle only inches from Stephen's chest, and shot him twice more. These shots killed Stephen. Only a few feet away, Isabel felt the air displaced by the bullets. Sosa-Hurtado exited the smoke shop and fired several shots into the air outside.

Id. at ¶¶ 7-8.

In affirming a conviction for aggravated murder (albeit not in a capital case), Sosa-Hurtado described the caselaw in this area. It pointed to an earlier decision, in which a defendant had used a caustic substance to kill three individuals and serious injure two others. In State v. Pierre, 572 P.2d 1338 (UT 1977), the Utah Supreme Court concluded that the evidence demonstrated "that the killing of the three victims and the creation of a setting of great risk of death to the two surviving victims occurred within a brief span of time in which were formed a concatenating series of events." 572 P.2d at 1355.

Sosa-Hurtado also pointed to another case, in which the Utah Supreme Court found that the grave risk of danger aggravator was not proven. In State v. Johnson, 740 P.2d 1264 (Utah 1987), a defendant bludgeoned a victim/husband to death, and then raped a victim/wife. The Court concluded that there was insufficient evidence that the defendant's murder

of [the husband] on the other side of a basement, separated from [his wife] by shelving, constitutes the kind of conduct described by [the great risk of death to another provision]. The State produced no evidence indicating the at [the wife] was placed at grave risk of death by defendant's battery of [the husband], nor did it produce evidence indicating that defendant knew that his conduct toward [the husband] placed [the wife] at great risk. This case resembles State v. Clark, 616 P.2d 888 (Ariz. 1980). In that case, the Arizona Supreme Court held that the victim's wife, who was in another room of the home when her husband was shot by the defendant, was not, even assuming the possibility of a ricocheting bullet, within the zone of danger. 

In Johnson, in referring to a "zone of danger," the Utah Supreme Court cited favorably to a New Jersey Supreme Court's interpretation of a similar first degree murder statute. There, the New Jersey court explained that, to fall within the aggravator

the facts must include a knowing or purposeful state of mind vis-a-vis the creation of a great risk of death, that there be a likelihood or high probability of great risk of death created, not just a mere possibility … and that there be at least another person within the "zone of danger" created by defendant's conduct.

State v. Price,  478 A.2d 1249, 1260 (N.J. Super. 1984) (citations omitted).

In Johnson, the Utah Supreme Court specifically stated that it also agreed "with the New Jersey court that there may be circumstances in which a defendant may be guilty although the endangered person is physically removed from the defendant's conduct, but we note that such cases require a careful consideration of a defendant's intent and knowledge of the risk and the endangered person's proximity in time and place to the murder."

The state prosecution is being capably led by Utah County Attorney Jeff Gray, who has considerable experience in serious criminal cases—and has covered these issues in the charges he filed today. The prosecutors will need to show that at least one other individual was within the "zone of danger" from the deadly bullet fired by Robinson from a high-powered rifle, specifically, a Mauser Model 98 .30-06 caliber bolt action rifle with a mounted scope. This issue of risk to another person becomes essentially a factual question, which the jury will need to resolve after hearing evidence from the prosecution and defense.

Below is a photograph of multiple people in close proximity in time and place to Kirk just moments before he was murdered:

Whatever else may be said about this photo, it makes clear the shooting was not a covert, private vendetta but rather a public assassination of a victim surrounded by hundreds of people.

The Criminal Information filed today lays out strong evidence of at least one of these other persons being in the zone of danger:

Mr. Kirk's team members were very close to him on his right and left, as well as some behind his canopy and others at various close locations near him. The large crowd surrounded Mr. Kirk on three sides. Temporary metal fencing separated attendees from Mr. Kirk by only a matter of feet. Directly above and behind Mr. Kirk was the UVU Hall of Flags, an indoor walkway spanning several hundred feet with floor-to-ceiling glass windows which overlook the plaza where Mr. Kirk was seated. People were in the walkway at the time of the shooting.

Approximately fifteen minutes into the event, Mr. Kirk was answering a question about mass shootings by transgender individuals when a gunshot rang out. The bullet struck Mr. Kirk in the neck. He slumped to the ground almost immediately. The bullet's trajectory passed closely to several other individuals beside Mr. Kirk, including the questioner who was standing directly in front of Mr. Kirk.

Further supporting this conclusion about risk is the fact that, immediately after the shooting, according to a Salt Lake Tribune timeline, "swarms of attendees bolted from the area, some wading through water in a campus fountain as they sought shelter." Presumably people were fleeing because of the great risk they were exposed to.

Robinson can be expected to challenge this conclusion that he placed others at risk. Presumably his lawyers will point to the fact that only a single person died. And his lawyers can point to the mounted scope and Robinson's deadly accuracy in carrying out the execution to suggest that the only person at risk was Kirk. But in asking whether there was a "great risk" to another person, part of the calculation is presumably the nature of the risk that is involved. The risk that Robinson created was, of course, a criminal risk of death from a bullet flying dangerously close to others. Robinson's crime seems to have created exactly the kind of danger that Utah's death penalty statute covers—making Robinson death-eligible if the prosecutors prove their case.

The post Why Charlie Kirk's Murderer Is "Death Eligible" Under Utah's Death Penalty Statute appeared first on Reason.com.

[Eugene Volokh] Washington Court of Appeals Concurrence's >2500-Word Sharp Criticism of President Trump

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

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

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

Our current President criticizes federal judges who rule against him…. Unknown individuals have sent pizzas to federal judges' home addresses to menace them. One pizza arrived at the home of United States District Court Judge Esther Salas under the name of Daniel Anderl, the judge's son who was killed by a disgruntled gunman targeting Salas. Judges increasingly receive threats for rulings issued unfavorable to the presidential administration. Attacks on the judiciary impede the checks and balances intended by the framers of the United States Constitution. The sidelining of the judiciary permits rule by political power and brute force rather than by law. Other judges warn, both inside and outside the context of written rulings, of a clear and present danger to the judiciary and the rule of law by the current administration….

In the face of violence against his adherents, the present president, instead of elevating tolerance and preaching liberty of thought and freedom of speech, weaponizes the deaths and injuries for political gain. He immediately demonizes an unidentified "them," meant to refer to anyone who opposes his agenda. He does not then concede the existence of good people who hold liberal political views….

I encourage Dr. Wilkinson and all Washingtonians to recognize, as this concurring opinion has, the nonpartisan nature of the First Amendment and to condemn the violations of the First Amendment by any President who bestows free speech protections only on his votaries….

I share much of Judge Fearing's disapproval of the President's particular actions related to free speech (see, e.g., my views as to the administration's actions with regard to Harvard, law firms, and more). But such a thoroughgoing condemnation of an elected official's overall behavior and attitudes, in a case that doesn't even directly deal with the official's actions, struck me as quite unusual (even in an opinion issued by an elected judge, as Washington judges in part are), and in my tentative view not really fitting for a judicial opinion. In any case, it was noteworthy, so I'm noting it; I'd love to hear others' views on the subject.

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[Eugene Volokh] Doctor Can't Be Disciplined by Washington Medical Commission for Blog Posts About COVID

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

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

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

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

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

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

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

We deem the rule that fallacious statements receive First Amendment protection to control this appeal. Since WMC grounds its discipline of Dr. Richard Wilkinson on a claim of falsity, this sole rule could dispense of the appeal. But we also conclude that the First Amendment rule prohibiting content-based governmental action controls this appeal….

WMC next contends that, even if the state cannot preclude a member of the general public from spreading false information about COVID-19, it may punish such dissemination in the context of professional licensing. The state may control speech within the context of professional licensing if such regulation is incidental to actions it may regulate, such as treatment of an individual patient. For example, the state may enforce informed consent laws, which require disclosures by the physician, since the law relates to provision of a specific medical treatment….

We agree with WMC that a state law that regulates the practice of medicine and only incidentally burdens speech is subject to only rational basis review and must be upheld if it bears a rational relationship to a legitimate state interest…. The principles asserted by WMC fail, however, in the context of Dr. Richard Wilkinson's website blog. If discussions between a doctor and patient do not directly implicate care of that patient, the First Amendment shields the speech….

Dr. Richard Wilkinson offered no medical treatment through his public blog statements. WMC could constitutionally discipline Dr. Wilkinson for his prescribing ivermectin to COVID patients, for his failure to disclose relevant information to patients about ivermectin, and for his violation of the standard of care when directly advising a patient to shun COVID-19 vaccines. WMC could not regulate Dr. Wilkinson's speech on his website blog when he preached the same themes….

Supreme Court precedent suggests that, even assuming the state establishes a strict link between its compelling interest and measure to further that interest, the government still carries the burden of demonstrating that counterspeech would not suffice to achieve its interest. For example, WMC could have engaged in a public information campaign promoting the vaccine and condemning the use of ivermectin. WMC presented no evidence of whether it had engaged in opposite speech and the impact of this speech.

Finally, WMC asks us to fashion a new narrow exception for a physician's knowing misrepresentations of verifiable medical facts. The Commission primarily substantiates this request based on dicta in Alvarez that the Supreme Court may not protect some forms of speech historically lacking constitutional protection. The Court further declined to delineate an exhaustive list of modes of speech circumventing First Amendment shelter and left open the possibility of new exceptions beyond the stated exemptions of obscenity, fighting words, conspiracy to commit a crime, slander, and true threats….

We doubt this clodhopper court holds the status to create exceptions to the First Amendment. We decline to do so. WMC provides no authority supporting its postulation of a long tradition of regulating false speech by physicians outside of the physician-patient relationship. To the contrary, we have analyzed decisions that express concern about regulating physician speech, even if the speech advocates for treatments not generally accepted by the medical community….

Judge Fearing also added a separate concurrence, arguing that the WMC's actions also improperly punished Wilkinson's political speech:

I write this concurring opinion in part because, in today's incendiary political environment, I would prefer to promote the importance of protecting political speech, including protests, and rest our decision on the First Amendment's neutral treatment of political speech….

I recognize that a speaker's opinion can be both political and scientific in nature. Nevertheless, assuming Dr. Richard Wilkinson's blogs dipped in part into the cabin of science, its other nature, the political nature of his COVID statements, bolsters his position that WMC could not discipline him for the publication of his opinions….

Judge Fearing also had a >2500-word condemnation of President Trump, in my experience quite unusual for a judicial opinion; but I saved that for a separate post, focusing here just on the First Amendment doctrinal questions.

Thanks to Mark Leen for the pointer.

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[David Bernstein] What Does the Rabbi Who Conducted Your Wedding Say About Your Religious and Political Views?

[Very little. ]

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

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

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

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

Why do people choose a particular rabbi to marry them?

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

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

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

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

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

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

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

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

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

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[Josh Blackman] An Unfair and Uninformed Attack On Rebecca Taibleson's Jewish Faith

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

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

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

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

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

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

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

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

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

The post An Unfair and Uninformed Attack On Rebecca Taibleson's Jewish Faith appeared first on Reason.com.

[Eugene Volokh] Ex-Congressman George Santos Loses Lawsuit Against Jimmy Kimmel and ABC

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

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

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

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

But whether a secondary use is transformative turns on what a reasonable observer thinks, not the subjective intent of the copyright holder or that of the secondary user. As Santos's original allegation acknowledges, a reasonable observer here would think the videos conveyed "feelings of hope, strength, perseverance, encouragement, and positivity," not a willingness to say absurd things for money.

Santos also contends that Kimmel's false representations demonstrate bad faith and thus nullify the fair use defense. We disagree. It is true that "[f]air use presupposes good faith and fair dealing." But Santos's complaint contradicts any claim of a purpose on the Defendants' part to "supplant" Santos's "commercially valuable right" in the videos. To the contrary, the complaint paints a portrait of defendants motivated by (sarcastic) criticism and commentary. We thus agree with the District Court that the first factor strongly supports a finding of fair use….

[I]t is [also] clear on the face of Santos's complaint that Santos has not suffered market harm within the meaning of the fourth fair use factor because "[w]e ask not whether the second work would damage the market for the first (by, for example, devaluing it through parody or criticism), but whether it usurps the market for the first by offering a competing substitute." … "[T]he unlikelihood that creators of imaginative works will license critical reviews or lampoons of their own productions removes such uses from the very notion of a potential licensing market." …

[2.] Santos[ alleges] direct breach of contract … under the Cameo Terms of Service. Santos is not party to the Terms of Service to which users (like Kimmel) must agree and that Santos alleges were breached. Under Illinois law, which governs the Terms of Service, there is a "strong presumption against conferring benefits to noncontracting third parties." Indeed, "the implication that the contract applies to third parties must be so strong as to be practically an express declaration." Here, Santos identifies nothing close to an "express declaration" that the relevant provisions of the Terms of Service apply to him or other noncontracting parties. Indeed, other provisions of the Terms of Service do contain third-party beneficiary language, indicating that when the parties to that agreement intended to allow provisions of the contract to be enforced by third parties, they said so expressly.

[3.] We next address Santos's breach of implied contract claim. Under New York law, which governs this claim, we consider "the intent of the parties and the surrounding circumstances" to determine "[w]hether an implied-in-fact contract was formed and, if so, the extent of its terms." In this case, however, Santos's complaint does not "allege, in nonconclusory language, … the essential terms of the parties' … contract, including those specific provisions of the contract upon which liability is predicated." Nor does Santos plausibly allege that there was "an indication of a meeting of minds of the parties constituting an agreement" that Kimmel would adhere to the Terms of Service.

[4.] Finally, Santos challenges the District Court's dismissal of his fraudulent inducement claim for failure to allege any out-of-pocket loss as required under New York law. We agree with the District Court's conclusion that Santos failed to allege that he suffered any actual out-of-pocket loss as the victim of the alleged fraud…

Nathan Siegel, Eric Feder, and Raphael Holoszyc-Pimentel (Davis Wright Tremaine LLP) represent defendants.

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

The post Monday Open Thread appeared first on Reason.com.

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

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

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

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

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

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

Plaintiff's filings point to various statements made about the case by third parties, some of which are just harsh criticism of plaintiffs, but some of which might be seen as threats (e.g., "White bitches always steal ima kill you"). It also points to what seems to be a call for violence against the judge ("The judge who put a gagging order on the true creators of the magnetic hair clip, needs to be taken out! It's because of racist white people in positions of authority, why racism still goes unjecked today. The judge needs to be eradicated, eliminated, taken out!!"). But the judge's point is that Boyce can't be held in contempt based on those third party statements, even if they stemmed from Boyce's criticisms of plaintiff and of the earlier TRO opinion.

The general sentiments in the opinion are right, I think, though this still leaves the question of what constitutes forbidden "harassment." The short opinion doesn't tell us. Neither does the preliminary injunction. And, based on decades of studying harassment laws of various sorts, I don't think there's a well-established legal definition of the word "harassment."

Lay dictionary definitions (e.g., "to vex, trouble, or annoy continually or chronically") are generally too vague to be useful. There are more precise definitions in various laws, but they vary sharply from law to law.

Some statutes define harassment to include only threats. Some define it as unwanted speech to a person. Some define it as including at least certain kinds of unwanted speech about a person that is sufficiently distressing. Some define it to cover speech that creates a "hostile, abusive, or offensive environment" in a workplace, educational institution, place of public accommodation, or the like based on race, religion, sex, sexual orientation, and the like. Some expressly exclude speech or conduct that has a "legitimate purpose," though generally without defining which purposes count. I therefore worry about these sorts of injunctions that ban "harassment," without any real definition of the term.

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