Eugene Volokh's Blog, page 9

[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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

[Stuart Benjamin] The FCC Chair's Unprecedented, and Constitutionally Problematic, Response to Jimmy Kimmel

[And Trump's much more extreme one. [EV writes: I bumped this post from yesterday, because it struck me as especially timely and substantively valuable.]]

On Monday Jimmy Kimmel said:

We hit some new lows over the weekend with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them and doing everything they can to score political points from it. In between the finger-pointing, there was, uh, grieving on Friday − the White House flew the flags at half-staff, which got some criticism, but on a human level, you can see how hard the president is taking this. Yes, he's at the fourth stage of grief: construction. Demolition, construction. This is not how an adult grieves the murder of someone he called a friend; this is how a four-year-old mourns a goldfish, OK? And it didn't just happen once. And then we installed the most beautiful chandelier. Responses you wouldn't believe. Who thinks like that, and why are we building a $200 million chandelier in the White House? Is it possible that he's doing it intentionally so he can be bad about that instead of the Jeffrey Epstein list?

Yesterday, FCC Chair Brendan Carr said:

Public interest means you can't be running a narrow partisan circus and still meeting your public interest obligations. That means you can't be engaging in a pattern of news distortion.

It appears to be some of the sickest conduct possible. In some quarters, there's a very concerted effort to try to lie to the American people about the nature of one of the most significant, newsworthy, public interest acts that we've seen in a long time.

Frankly, when you see stuff like this — I mean, we can do this the easy way or the hard way. These companies can find ways to change conduct and take action, frankly, on Kimmel, or there's going to be additional work for the F.C.C. ahead.

A few hours after Carr's remarks, ABC indefinitely suspended Kimmel's show.

And this evening, Donald Trump said of broadcasters:

They give me only bad publicity or press. I mean, they're getting a license. I would think maybe their license should be taken away.

What Is the FCC's Statutory Authority?

47 U.S.C. 301 grants the FCC control over the radio spectrum and directs the FCC to grant licenses to use specified frequencies for a specified number of years. So wireless broadband providers, satellite television providers, local broadcast stations, etc. must obtain FCC licenses. Licenses are generally very valuable (broadband auctions for initial licenses have yielded more than $200 billion to the Treasury), and a licensee really wants to be able to renew its license and to sell it to someone else who will then be able to renew it (otherwise, the buyer would not pay very much). This creates two principal levers the FCC uses to control licensees.

First, under 47 U.S.C. 310 the FCC must approve any proposed transfer of a license as long as it finds that "the public interest, convenience, and necessity will be served thereby." This was the source of the FCC's leverage with respect to the CBS/Skydance transaction: CBS wanted to transfer the licenses for the local TV stations it owned, and the FCC had to approve. As readers know, the FCC did approve that transfer after (in the words of the FCC press release) Skydance committed not to have any DEI policies, to "ensur[e] that the new company's array of news and entertainment programming will embody a diversity of viewpoints across the political and ideological spectrum," and to invest new capital. And of course the FCC approved the transfer shortly after Stephen Colbert's show was cancelled – at a minimum creating an appearance problem (or an opportunity, for those who want future transferees to fear the FCC).

The second key source of authority is 47 U.S.C. 309, which specifies that the FCC can similarly deny renewal of a license if the FCC does not find that the licensee "has served the public interest, convenience, and necessity."

Is This Consistent with the First Amendment?

At this point a key question may occur to you: how can it be consistent with the First Amendment for any FCC renewal or transfer decisions to turn in any way on the content, much less the viewpoint, of a licensee's speech? Content-based regulation of cable television providers (whose systems often require rights-of-way from a government) or websites that transmit content via wireless frequencies would be subject to strict scrutiny, which is nearly always fatal, and viewpoint-based regulation is always invalidated. Indeed, even without the use of any rights-of-way or frequencies (which the Court never mentioned in its cable and internet cases), the Court would apply strict scrutiny. (And by the way, the Court has invalidated the regulation of knowingly false speech -- indeed, particularly offensive false speech, in the form of lying about receiving military medals.)

So how can the FCC look at content under sections 309 and 310?

The answer in the case law has been that in FCC v. Pacifica Foundation the Supreme Court held that broadcasting is subject to less rigorous First Amendment scrutiny primarily because it is uniquely pervasive, and secondarily because it is uniquely accessible to children. And in Red Lion Broadcasting Co. v. FCC, the Court allowed mandates that broadcasters host speech the government deemed valuable, based largely on spectrum scarcity. (Red Lion does not suggest that scarcity justifies restricting harmful speech, but rather justifies requiring broadcasters to air valuable speech.)

Denying a renewal or transfer based on viewpoint goes beyond Pacifica and Red Lion, and there is a reasonable argument that neither decision extends that far. Even if they did, it would not follow that the Supreme Court would permit such actions.

Pacifica and Red Lion have been subject to persuasive criticism for years. As to Pacifica, broadcasting is just another medium of communication. The government powerfully argued in cases involving cable television, the internet, and telephones, (all of which Congress chose to regulate) that those other media are just as pervasive, and just as available to children, as broadcasting, and in each case the Supreme Court rejected the government's argument and invalidated the regulation under strict scrutiny, making it harder and harder to defend Pacifica.

Regarding Red Lion, to quote from my Internet & Telecommunications Regulation casebook, "almost all resources —e.g., wires, labor, steel, land, and investment capital —are scarce in that (a) if given away at no charge people would request more of them than is available and (b) if we could create more of them, that additional increment could also be put to productive use." Indeed, in some respects radio frequencies are less scarce than land: the range of usable frequencies has increased more than 10-fold in the last 50 years – as if we had discovered 10 new usable Earths. And the Court declined the opportunity to apply Red Lion in later cases like Miami Herald v. Tornillo (newspapers) and Moody v. NetChoice (social media), making it harder and harder to defend Red Lion.

As Justice Thomas noted in FCC v. Fox,

Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity. The text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have done so in these cases.[Internal quotation marks omitted.]

FCC commissioners and staff are aware of the First Amendment problems with content-based FCC decisionmaking, and the broader governance concerns raised when government wields so much power. Indeed, the FCC repealed the Fairness Doctrine (whose legal hook was the threat of non-renewal) and later (after much prodding from the D.C. Circuit) the Personal Attack and Political Editorial rules (which were similarly predicated on the threat of non-renewal) on First Amendment grounds. And see the final block quote below. Many people (myself included) expect that if the Supreme Court squarely confronted Pacifica and/or Red Lion, it would overrule them.

But the costs for a licensee to challenge a non-renewal or transfer denial are very high. The Court has made it clear that only it can overrule its cases, so a licensee would face months if not years of delay on a transfer (often fatal to transfer deals) or on a renewal, with no guarantee of success. The obvious incentive is for the private party to do what the government wants. That is why Trump had leverage over ABC, leading it to settle a very weak lawsuit. That's how things work in lots of countries we don't want to emulate.

Would This Be an Ordinary Application of FCC Standards?

First things first: Trump said the quiet part out loud tonight – he thinks that broadcasters have been too critical of him and thus maybe their licenses should be taken away. That has never happened, and here's hoping it never will.

Now to Carr's stated focus – news distortion. First, it has been applied only to news shows (which of course Kimmel's show is not). Second, the FCC has created guardrails around it that seem to exclude Kimmel's monologue. As the FCC stated in rejecting a news distortion complaint against a Fox television station in 2007:

In evaluating whether an allegation of news distortion impacts the licensee's ability to serve the public interest, the Commission analyzes both the "substantiality" and "materiality" of the allegation. An allegation is "material" only if the licensee itself is said to have participated in, directed, or at least acquiesced in a pattern of news distortion. An allegation of news distortion is "substantial" if it meets two conditions: it is deliberately intended to slant or mislead; and it involves a significant event and not merely a minor or incidental aspect of the news report. It is sufficient for a petitioner to raise a "substantial and material question of fact" as to intent, and the Commission cannot require a petitioner to demonstrate "intent." However, the Commission determines in the first instance whether the evidence submitted raises a substantial question of fact.

Section 326 of the Act prohibits the Commission from censoring radio communications, and the First Amendment to the Constitution strictly limits the Commission's authority to interfere with the programming decisions of licensees. In light of these limitations, and because journalistic or editorial discretion in the presentation of news and public information is the core concept of the First Amendment's Free Press guarantee, "the Commission's policy makes its investigation of an allegation of news distortion 'extremely limited in scope.'" In showing an intent to distort, "[i]t is not enough to dispute the accuracy of a news report…or to question the legitimate editorial decisions of the broadcaster." Allegations of deliberate distortion must be supported by extrinsic evidence "such as written or oral instructions from station management, outtakes, or evidence of bribery." With respect to a report's accuracy in particular, the Commission has stated that it possesses "neither the expertise nor the desire to look over the shoulder of broadcast journalists and inquire why a particular piece of information was reported or not reported." To do otherwise "would involve the Commission deeply and improperly in the journalistic functions of broadcasters."

In the Matter of TVT License, Inc., 22 F.C.C. Rcd. 13591, 13592 (2007).

Third, the FCC has found distortion in only eight cases since 1969, and just once since 1982. Fourth, in none of those cases did the FCC revoke the license based on the distortion. A representative example involved a "letter of admonishment" that had no impact on the licensee (and proved to have no impact on its future renewals) despite the FCC

finding "repeated instances of deceptive programming broadcast by the station" in five different news programs over a two-year period. Deceptions included staff members concocting letters and phone calls that were presented on the air as having been issued from viewers, supposedly spontaneous questions by members of studio audiences which were prepared by staff members and fictitious interviews with various people misidentified as members of the public.

The only finding of news distortion since 1982 was a similar letter of admonishment in 1993 for NBC

staging a segment of a "Dateline NBC" report on unsafe gas tanks in General Motors trucks. The report showed video of what it called an "unscientific" test crash in which a GM truck exploded into flames after being hit from the side. GM's investigation found that NBC producers had rigged the test by attaching incendiary devices to the truck's gas tank.

The most recent attempts at news distortions were A) a claim, piggybacking on the state court determination in Dominion Voting System's suit against Fox News, that a Fox television station disseminated false statements about Dominion, and B) claims that CBS distorted the news by airing different footage of Kamala Harris's response to the same question on 60 Minutes and Face the Nation. The FCC rejected all these challenges shortly before Trump took office without holding any hearings, as it should have. It began all the orders by stating:

The freedom of speech and the press is enshrined in the First Amendment of the United States Constitution, and is necessary to promote the vigorous dialogue necessary in a representative democracy. When the government — including Congress, the Courts, and the Executive Branch (and States and local government) — seeks to curtail the freedom of expression on ""matters of valid public interest," doing so implicates the very heart of speech that the First Amendment is meant to protect. Accordingly, for nearly a century since the Commission's inception in 1934, the Communications Act has expressly prohibited the Commission from engaging in the "power of censorship," or issuing regulations or conditions that "interfere with the right of free speech." It has instead plainly recognized that "[b]roadcasters—not the FCC or any other government agency—are responsible for selecting the material they air" and that "our role in overseeing program content is very limited." Moreover, "the Commission does not—and cannot and will not—act as a self-appointed, free-roving arbiter of truth in journalism."

In the Matter of Preserving the First Amendment, Application of Fox Television Stations, LLC for Renewal of License of WTXF-TV, Philadelphia, Pa (Jan. 16, 2025).

(By the way, that last quotation was from a 2020 order rejecting a challenge to the airing of allegedly false statements about Covid-19 by President Trump and others.)

The only remotely analogous FCC action was Carr's decision, upon becoming chair, to reopen the challenges to CBS's handling of Kamala Harris's answers (but not to Fox's statements about Dominion). But it would take chutzpah for Carr to claim that his Kimmel comments are not unprecedented simply because he did something roughly analogous nine months ago.

The bottom line: treating Kimmel's statement as news distortion would be unprecedented. Indeed, that understates the point. The idea that his statement resembles anything the FCC has punished as news distortion is somewhere between strained and frivolous.

[Edit to make explicit that the first two limits on news distortion knock out application to Kimmel's monologue.]

The post The FCC Chair's Unprecedented, and Constitutionally Problematic, Response to Jimmy Kimmel appeared first on Reason.com.

[John Ross] Short Circuit: An Inexhaustive Weekly Compendium of Rulings from the Federal Courts of Appeal

[A dogfighting legend, false positives, and 69 guns.]

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

New on the Short Circuit podcast: An IJ victory for free speech over licensing.

Another week, another First Circuit decision denying a Trump Administration emergency motion to stay an injunction against dismantling a federal agency (here, four sub-agencies of HHS). Does this presage another trip to One First Street?By statute, Congress gives the President discretion both to parole immigrants into the country on a case-by-case basis and to terminate that parole. Biden Administration had a program that paroled in about 532,000 people from Cuba, Haiti, Nicaragua, and Venezuela for humanitarian purposes. Trump Administration revokes that parole en masse. Paroled immigrants sue and win a stay of that revocation in district court. First Circuit: Gov't by executive fiat cuts both ways. Stay vacated.Police follow a car with a broken headlight and taillight. When driver refuses to exit and resists officers' efforts to pull him out, police punch and tase him to get him out of car. Driver sues. First Circuit: Quickly escalating to punching and tasing without giving some time for driver to respond to lesser efforts crosses the line into being unreasonable and violates Fourth Amendment. But prior case law was sufficiently murky that officer gets qualified immunity."I wish that my son will grow up to be a legend in his chosen field." [Finger on monkey's paw curls.] First Circuit: This legendary dogfighting trainer's seven-year sentence for animal cruelty is affirmed.Traders bring anti-trust claims, alleging that Lloyds, Barclays, RBS, and others conspired to rig LIBOR. Second Circuit: Yeah, well, rates go up, rates go down. Do you have an injury?If you are a drug dealer texting other drug dealers, maybe don't consent to a search of your phone? (The Third Circuit is not going to care if you asked for a lawyer first.)In August 1978, five teenage boys disappeared in Newark, N.J., never to be found. Thirty years later, an Essex County cold-case unit secures a statement from a man who implicates his cousin in locking the five boys in a house and burning it to the ground. The alleged arsonist is arrested and tried for murder. And acquitted. Twist: His cousin later recants and avers that his inculpatory statement was coerced, false, and wholly concocted by two detectives. Qualified immunity for the malicious-prosecution claim that ensues? Third Circuit: Decidedly not. To trial the case must go.Thief stole 69 guns from gun stores—but says the restitution order stole from him, charging double for the same guns. Third Circuit: Agreed. Restitution can cover the guns' value but not lost sales on top. Victims get made whole, not paid twice.The 1870s weren't a great time for voting laws in North Carolina, featuring, among other innovations, a (maybe?) strict liability statute making it a crime for felons to vote. North Carolina: Yes, that original statute was shot through with racial animus. But we tweaked the predicate state constitutional provision in 1971, so the statute isn't racist anymore! Fourth Circuit: Yet you didn't amend the actual statute being challenged. The equal-protection taint remains unpurged. (And in a sign of great personal growth, your summarists will resist the urge to sigh resignedly at the presence of footnote seven.)Man under state felony indictment in Arizona travels to Maryland with a pistol, where he is arrested and federally charged with illegally transporting a gun across state lines. He argues that the charge violates his Second Amendment rights. Fourth Circuit: The Second Amendment applies to his actions, and a lot of the gov't's arguments are bunk, but disarming people under indictment isn't all that different from having them post a bond, so there's a historical precedent.During a roadside stop in Harris County, Tex., officer smells pot, calls for backup, and orders the driver out of the car. Instead, driver starts the engine and begins moving. Officer jumps on the hood and then shoots and kills the driver. Fifth Circuit (2024): Our hands are tied by our precedent. We thus rule in favor of the officer. SCOTUS (2025): Your precedent was wrong. Consider the totality of the circumstances. Fifth Circuit (2025): We agree, but the officer still wins.Allegation: Mentally ill Nashville woman calls police and asks them to come shoot her. The police come, tase her after a few minutes because the situation "wasn't going anywhere," and then do, in fact, shoot her. Qualified immunity? That's gonna be a no, holds the Sixth Circuit.The First Amendment provides a qualified right of access to the gov't's adjudicatory proceedings, says the Sixth Circuit, but no right at all to access non-adjudicatory proceedings, even when those non-adjudicatory proceedings are run by judges.Transgender professor at Kent State alleges that they were discriminated against because the university did not select them to lead its Center for the Study of Gender and Sexuality and denied the professor's request to transfer to a different campus. Sixth Circuit: Seems like, if they discriminated against the professor at all, it was because of the professor's extensive, profanity-filled public tirades against their colleagues and the university.Lawful permanent residents are allowed to make contributions and expenditures in federal elections but are prohibited from doing so in Ohio state elections. They challenge the Ohio law as a First Amendment violation, and the district court grants a preliminary injunction. An earlier Sixth Circuit panel stays the injunction. Sixth Circuit (per curiam): And now we hold plaintiffs are unlikely to win, for largely the same reason the last panel articulated. Concurrence (by two judges): We'd like to add that strict scrutiny is a mess! And the Privileges or Immunities Clause would help out a lot in cases like this. Dissent: This law violates the First Amendment.If the first paragraph of an opinion tells you the defendant has used either crack or heroin every day for 20 years, such as in this one from the Seventh Circuit, it's a good signal that his Second Amendment challenge to the federal law making it a crime for users of illegal drugs to have guns will fail.Eighth Circuit (over a dissent): We have held several times that officers cannot use more than minimal force against a person who is neither suspected of a serious crime nor threatening anybody nor resisting arrest, which means there is no qualified immunity for the officers who caused permanent nerve damage to a guy who was neither suspected of a serious crime nor threatening anybody nor resisting arrest. (IJ urged this result in a salubrious amicus brief.)In which the Eighth Circuit grants qualified immunity to two officers who were bamboozled into letting blackguards bogart a bloke's bike.Naifs in the audience might assume that this Ninth Circuit case asking whether Washington state medical regulators can punish a doctor for writing a newspaper column will be about the First Amendment, but loyal Short Circuit heads have already guessed it's about Younger abstention.In May, the Supreme Court stayed a preliminary district-court order delaying the revocation of the Temporary Protective Status of certain Venezuelan immigrants. Gov't: And the Supreme Court's earlier stay means we should get an emergency stay after the district court ruled against us on the merits! Ninth Circuit: We're not totally sure that one-paragraph stay means much of anything, so we're just going to do law stuff and see what happens.Nonprofits challenge provisions of the 2023 Arizona Elections Procedures Manual. One requires the Secretary of State to omit the vote totals of counties that do not certify their totals by a certain deadline following the election, the other purports to summarize the state's voter intimidation laws. Ninth Circuit: No standing to challenge the vote-counting provision because there's no way to know when or if it will apply to anyone. But the voter-intimidation provisions are too speech-y, so they're enjoined.This Tenth Circuit opinion holds that a case challenging a visa denial is mooted when the plaintiff gets a visa, but it also has a nice little discussion of when mootness at the en-banc stage requires vacatur of the panel opinion under Munsingwear, if that's your kind of thing. (If you didn't understand the end of that sentence, it's not your kind of thing, and that's probably a good life choice.)Public school ends multi-million-dollar contract with veggie farmer after he blasted COVID-19 and Black Lives Matter as "hoaxes" duping "lemmings." Farmer claims speech retaliation; school cites food-safety worries. Eleventh Circuit: the school acted to protect kids' lunches, not punish speech.And from the Court of Appeals for the Armed Forces we have a Brady violation (the rule that prosecutors must turn over potentially exculpatory evidence) in a case involving cocaine, Fourth of July parties, roommates, workout supplements, and false positives.

The Marshall family has owned property and passed it down in the East End of Freeport since 1940. Historically, this was because of redlining laws. Now their ownership is a symbol of resiliency and resolve. The Port of Freeport, however, wanted to take it via eminent domain. Do you know why? Neither did the Port! It just wanted to take the land and figure it out later. That's not enough under the Constitution and under Texas law. So IJ teamed up with the family and this week the Texas Court of Appeals agreed. "Private property cannot be imperiled with such nonchalance."

The post Short Circuit: An Inexhaustive Weekly Compendium of Rulings from the Federal Courts of Appeal appeared first on Reason.com.

[Josh Blackman] Would A Subsidy To Encourage Young Men and Women To Marry Be Constitutional?

[The government would offer a graduated subsidy, based on the age of the mother, to marry under the age of 30, with the goal of promoting natural child conception.]

One of Charlie Kirk's primary platforms was to encourage young men and women to get married early and have babies. The New York Times recounted one of his final messages:

At a young women's leadership conference this summer, Mr. Kirk warned women about waiting too long to get married. He argued that their chances of finding a life partner dropped if they were still single by the time they turned 30 — a message he reiterated on Fox News just days before his death.

"I would also tell young ladies: You can always go back to your career later," he said early last week, adding "that there is a window where you primarily should pursue marriage and having children. And that is a beautiful thing."

This proposal ginned up an idea. What if the government tried to subsidize men and women to get married young, with the goal of promoting natural child conception? The subsidy would not be available to older opposite-sex couples. The subsidy would also not be available to same-sex couples, regardless of their age, who could not naturally conceive a child within that marriage. Call it the Charlie Kirk Family Bonus.

If a woman under the age of 21 gets married to a man, there is a subsidy of $100; at the age of 22, a subsidy of $90; at the age of 23, $80; and so on. Once the wife reaches the age of 30, the subsidy drops to $0. The exact dollar amounts can be adjusted. The important point is that state is using subsidies to expressing its preference for natural child conception within a marriage.

Would such a regime be constitutional? Let's walk through the analysis.

First, this law would impose an age-based classification, which is generally reviewed with rational basis scrutiny (see Skrmetti). The fact that women over the age of thirty are ineligible for the subsidy would pass muster. The state can rationally conclude that older women are less likely to be able to conceive naturally. The law would easily satisfy this deferential standard. But that is not the end of the analysis.

Second, does this law impose a classification on the basis of sex? (I'll get to sexual orientation later.) Well in a sense, no. Married couples with one man and one woman are eligible. This law does not treat men different from women. Indeed, the couple would jointly receive the subsidy. It's true that people who do not get married would never receive the benefit. But there are many benefits--tax and otherwise--that are afforded to married couples. I think a law that favors married couples over unmarried people would be reviewed with rational basis scrutiny.

Still, for the sake of argument, I will presume this law imposes a sex classification. This sort of law is reviewed with intermediate scrutiny standard. Under VMI, would the state have an "exceedingly persuasive" justification to offer these graduated subsidies? I think it is fairly well established that as a woman gets older, her ability to reproduce decreases. Don't take my word for it. The American College of Obstetricians and Gynecologists explains "A woman's peak reproductive years are between the late teens and late 20s. By age 30, fertility (the ability to get pregnant) starts to decline." (Men, by contrast, have higher fertility rates at older ages.)

A likely response is that women above the age of thirty can be aided in conception through various forms of IVF or fertility treatment. But here, the state is encouraging natural child conception, not the more expensive and less effective artificial means. The state may also conclude that IVF creates a false sense of security, whereby women can postpone conception till much later, only to find the process is difficult or unsuccessful. I think the state could also reject IVF from a moral perspective, in that it necessarily entails the destruction of many fertilized embryos. Certainly under Dobbs, the state can make that judgment. Couples can also adopt, but the state may determine that the primary interest is in promoting new lives.

Is this law promoting an important interest? The state could cite the crisis of underpopulation, and argue that it needs to promote conception to sustain the social fabric and economy of the polity.

What about the substantial relationship? Here, there is a very close relationship between the means (young couples marrying) and the ends (natural conception). Not all young couples will be able to have children, for a host of reasons. But encouraging opposite-sex marriage is the traditional means of encouraging responsible procreation. I think this graduated subsidy regime would pass muster under intermediate scrutiny.

Third, does this law impose a classification on the basis of sexual orientation? On its face, the answer is no. The law doesn't purport to define what marriage is or say anything at all about homosexuality. Rather, the law applies to a man and a woman who chose to get married by a certain age. Nothing stops a gay man from marrying a woman, and nothing stops a lesbian from marrying a man. This sort of arrangement happened throughout much of history. But I'll resume for the sake of argument that this law imposes a classification on the basis of sexual orientation. Would such a classification be reviewed under a rational basis or an intermediate scrutiny standard? Neither Obergefell nor Lawrence settled this issue. And I'm not sure it matters. I think this law survives scrutiny under the VMI test as described above.

Fourth, what about the substantive due process analysis from Obergefell? This law would not violate the square holding from Obergefell. Same-sex couples would still receive marriage licenses. But Obergefell seems to have gone further:

There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage.

Pavan v. Smith (2017) ruled that the state must issue a birth certificate with the name of the mother's wife, just as the state would list the name of the mother's husband. People forget that Pavan was decided on (gasp!) the shadow docket through a summary reversal. Justice Gorsuch, Thomas, and Alito dissented here. I suspect this case might come out differently today.

Would the baby bonus be within the "constellation of benefits" of marriage? Yes and no. Only some married couples can receive it. The subsidy is only available to opposite-sex couples, but more precisely, the subsidy is only available to young opposite-sex couples. And the state has a fairly weighty interest to limit the availability of the subsidy. Women in opposite-sex marriages above the age of thirty are categorically ineligible for the subsidy. In this regard, gay couples are not singled out for disfavored treatment. By contrast, in Pavan, listing a name on a birth certificate has no consequences, beyond the recognition of a same-sex marriage. And in Windsor, all gay couples were denied the tax benefits. Windsor rejected "moral disapproval" as a justification for DOMA, but that decision did not address the state's interest in promoting natural child conception.

Wouldn't the baby bonus "demean" or deny the "dignity" of same-sex couples who are not eligible? Again, the law also does not apply to women over the age of thirty, writ large. This law is not premised on "moral disapproval" of gay couples, but instead, is designed as a way to promote natural conception within marriage.

Chief Justice Roberts stated the issue plainly in his Obergefell dissent:

The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child's prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.

Wait a minute, you might ask. Didn't the Obergefell majority reject the "procreation" justification for traditional marriage laws?

People often ask me whether Obergefell would be overruled. I think the answer is no, for the stare decisis reasons that Justice Alito identified in Dobbs. But I am skeptical the Court would extend Obergefell to new contexts. This sort of conception-subsidy would be such a new context.

This post is mostly a thought experiment. I'm curious to see what others think.

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[Ilya Somin] Video of Education Law and Policy Panel on "Federal Efforts to Combat Antisemitism: Restoring Campus Civil Rights or Infringing Academic Freedom?"

[I was one of the participants.]

NA

Below is a video of the panel on "Federal Efforts to Combat Antisemitism: Restoring Campus Civil Rights or Infringing Academic Freedom?" from the recent Education Law and Policy Conference, co-sponsored by the Federalist Society and the Defense of Freedom Institute. I was one of the participants. The others were Tyler Coward (Lead Counsel, Government Affairs, Foundation for Individual Rights and Expression (FIRE)), Ken Marcus (Chairman & Founder, Brandeis Center), and  Sarah Perry (Vice President & Legal Fellow, Defending Education). Carlos Muniz, Chief Justice of the Florida Supreme Court, moderated.

Not surprisingly, Tyler Coward and I were much more critical of the the Trump Administration's policies than Perry and Marcus. In my view, much of what is being done under the pretext of combatting campus anti-Semitism is actually undermining freedom of speech and academic freedom, and also illegally seeking federal control over state and private universities. But there were more areas of agreement. For example, we all agreed that the federal government cannot properly seek control over university curricula (Perry even said the Trump Administration's efforts to do so at Harvard gave her "apoplexy") and that campus protests that devolve into violence and disruption must be banned, and are subject to punishment. Though in my view, not all of the latter qualify as anti-Semitic, and some are properly addressed by state and local law, rather than federal enforcement.

We also all agree that Jews are among the groups protected by Title VI (the federal law banning racial and "national origin" discrimination in educational institutions receiving federal funding). This position was once controversial, but has gained widespread cross-ideological acceptance more recently. On the other hand, Marcus and I differed over whether the very broad IHRA definition of anti-Semitism is the right one to apply in this context. In my view- as applied to anti-discrimination law, that definition creates dangers similar to those of overbroad definitions of racism and sexism, traditionally decried by conservatives and libertarians.

 

I have previously written about campus anti-Israel protests here and about far-left versions of anti-Semitism here (discussing, among other things, how they differ from right-wing/nationalist anti-Semitism).

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[Eugene Volokh] Judge Strikes Trump's Complaint in Libel Lawsuit Against N.Y. Times

["The complaint continues ... with much more, persistently alleged in abundant, florid, and enervating detail." "[A] complaint is not a public forum for vituperation and invective—not a protected platform to rage against an adversary. A complaint is not a megaphone for public relations or a podium for a passionate oration at a political rally or the functional equivalent of the Hyde Park Speakers' Corner."]

From today's order by Judge Steven Merryday (M.D. Fla.) in Trump v. N.Y. Times Co.:

As every member of the bar of every federal court knows (or is presumed to know), Rule 8(a), Federal Rules of Civil Procedure, requires that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8(e)(1) helpfully adds that "[e]ach averment of a pleading shall be simple, concise, and direct." Some pleadings are necessarily longer than others. The difference likely depends on the number of parties and claims, the complexity of the governing facts, and the duration and scope of pertinent events. But both a shorter pleading and a longer pleading must comprise "simple, concise, and direct" allegations that offer a "short and plain statement of the claim." Rule 8 governs every pleading in a federal court, regardless of the amount in controversy, the identity of the parties, the skill or reputation of the counsel, the urgency or importance (real or imagined) of the dispute, or any public interest at issue in the dispute.

In this action, a prominent American citizen (perhaps the most prominent American citizen) alleges defamation by a prominent American newspaper publisher (perhaps the most prominent American newspaper publisher) and by several other corporate and natural persons. Alleging only two simple counts of defamation, the complaint consumes eighty-five pages. Count I appears on page eighty, and Count II appears on page eighty-three. Pages one through seventy-nine, plus part of page eighty, present allegations common to both counts and to all defendants. Each count alleges a claim against each defendant and, apparently, each claim seeks the same remedy against each defendant.

Even under the most generous and lenient application of Rule 8, the complaint is decidedly improper and impermissible. The pleader initially alleges an electoral victory by President Trump "in historic fashion"—by "trouncing" the opponent—and alludes to "persistent election interference from the legacy media, led most notoriously by the New York Times." The pleader alludes to "the halcyon days" of the newspaper but complains that the newspaper has become a "fullthroated mouthpiece of the Democrat party," which allegedly resulted in the "deranged endorsement" of President Trump's principal opponent in the most recent presidential election. The reader of the complaint must labor through allegations, such as "a new journalistic low for the hopelessly compromised and tarnished 'Gray Lady.'" The reader must endure an allegation of "the desperate need to defame with a partisan spear rather than report with an authentic looking glass" and an allegation that "the false narrative about 'The Apprentice' was just the tip of Defendants' melting iceberg of falsehoods." Similarly, in one of many, often repetitive, and laudatory (toward President Trump) but superfluous allegations, the pleader states, "'The Apprentice' represented the cultural magnitude of President Trump's singular brilliance, which captured the [Z]eitgeist of our time."

The complaint continues with allegations in defense of President Trump's father and the acquisition of the Trumps' wealth; with a protracted list of the many properties owned, developed, or managed by The Trump Organization and a list of President Trump's many books; with a long account of the history of "The Apprentice"; with an extensive list of President Trump's "media appearances"; with a detailed account of other legal actions both by and against President Trump, including an account of the "Russia Collusion Hoax" and incidents of alleged "lawfare" against President Trump; and with much more, persistently alleged in abundant, florid, and enervating detail.

Even assuming that each allegation in the complaint is true (of course, that is for a jury to decide and is not pertinent here; this order suggests nothing about the truth of the allegations or the validity of the claims but addresses only the manner of the presentation of the allegations in the complaint); even assuming that at trial the plaintiff offers evidence supporting every allegation in the complaint and that the evidence is accepted by the jury as fact; and even assuming that after finally "melting" the defendants' alleged "iceberg of falsehoods" the plaintiff prevails for each reason alleged in the complaint—even assuming all of that—a complaint remains an improper and impermissible place for the tedious and burdensome aggregation of prospective evidence, for the rehearsal of tendentious arguments, or for the protracted recitation and explanation of legal authority putatively supporting the pleader's claim for relief. As every lawyer knows (or is presumed to know), a complaint is not a public forum for vituperation and invective—not a protected platform to rage against an adversary. A complaint is not a megaphone for public relations or a podium for a passionate oration at a political rally or the functional equivalent of the Hyde Park Speakers' Corner.

A complaint is a mechanism to fairly, precisely, directly, soberly, and economically inform the defendants—in a professionally constrained manner consistent with the dignity of the adversarial process in an Article III court of the United States—of the nature and content of the claims. A complaint is a short, plain, direct statement of allegations of fact sufficient to create a facially plausible claim for relief and sufficient to permit the formulation of an informed response. Although lawyers receive a modicum of expressive latitude in pleading the claim of a client, the complaint in this action extends far beyond the outer bound of that latitude.

This complaint stands unmistakably and inexcusably athwart the requirements of Rule 8. This action will begin, will continue, and will end in accord with the rules of procedure and in a professional and dignified manner. The complaint is STRUCK with leave to amend within twenty-eight days. The amended complaint must not exceed forty pages, excluding only the caption, the signature, and any attachment.

You can read the now-struck Complaint here. To be fair, the Complaint is a specimen of a broader phenomenon I've seen in other cases—but it is indeed an unusually aggravated specimen. These sorts of complaints, in criminal and civil cases, are sometimes called "speaking complaints," and have both defenders and opponents; this one, though, speaks a lot, and about many things that don't seem quite relevant to the matter.

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[Eugene Volokh] Sealing and Malawi

(Map from the CIA Factbook.)

 

From Republic of Malawi v. Columbia Gem House, decided Wednesday by Judge David Estudillo (W.D. Wash.):

On April 11, 2025, Plaintiff filed an application to conduct discovery for use in contemplated foreign criminal and civil proceedings pursuant to 28 U.S.C. § 1782. Shortly thereafter, the Clerk's Office sealed this case, based upon guidance provided to Clerk's office employees that cases of this nature should generally be opened under seal. On May 23, 2025, the Court granted Plaintiff's application….

Plaintiff argues the Court should unseal this case in its entirety because there is no compelling reason to maintain the seal. Plaintiff contends there is no confidential information in any of the Court filings and argues the presumption of access to judicial records should therefore prevail….

In general, "compelling reasons" sufficient to outweigh the public's interest in disclosure and justify sealing court records exist when such "court files might have become a vehicle for improper purposes," such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets. However, "[t]he mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records."

Here, Defendants argue Plaintiff will "use and misconstrue the Court's records and orders to perpetuate an ongoing false scandal" to advance the re-election prospects of politicians in Malawi. Defendants contend the scandal allegedly perpetuated by the Malawian government threatens the future of their business and the livelihood of their employees. Defendants argue the government of Malawi has been using false accusations against them "to whip up public scandal" for years, and have recently resurrected these allegations in the run up to Malawi's 2025 presidential election. Defendants argue Plaintiff has already used and misconstrued the Court's rulings for political purposes, citing an article published on a Malawian news website that quotes from the Court's sealed order granting Plaintiff's application to conduct discovery pursuant to 28 U.S.C. § 1782. {Plaintiff and Plaintiff's counsel both deny sharing the Court's order with any third parties.}

The Court finds Defendants have not met their burden with respect to maintaining the case under seal. The Court notes this case was sealed pursuant to general guidance issued to the Clerk's Office, not because of any specific, compelling reasons that would justify sealing. In addition, while parties in Malawi may attempt to misconstrue aspects of the Court's rulings, those parties are capable of publishing derogatory information about Defendants with or without access to Court documents. As Defendants assert, they have been subject to a long running "shakedown" by parties in Malawi that began in 2011 and led to the publication of a report in 2014 alleging Defendants plundered hundreds of billions of dollars of Malawi's mineral wealth. Moreover, by having access to the positions taken by each party and the Court's ultimate rulings, the public will have accurate information about findings and conclusions made in this case.

Some backstory from the now-unsealed order granting discovery (though recall that these are all just allegations by the Malawi government):

This matter arises out of an investigation initiated by Thabo Chakaka-Nyirenda, the Attorney General of Malawi, into an alleged scheme to defraud Malawi out of billions of dollars in royalties and taxes related to the mining of rare rubies and sapphires at the Chimwadzulu mine, which is located on Chimwadzulu Hill in the Ntcheu District of Malawi. Malawi alleges Nyala Mines Limited ("Nyala Mines"), which held a license from Malawi's government granting it the exclusive right to mine rubies and sapphires from the Chimwadzulu mine, engaged in a long-running criminal conspiracy to underreport its gemstone exports and wholesale earnings to reduce the amount owed to Malawi under the relevant license and royalty agreements.

Malawi seeks discovery from Columbia Gem House, Inc. …, a supplier and wholesaler of exotic gemstones with offices in Vancouver, Washington, which Malawi claims will aid its investigation. Malawi contends Columbia Gem has an exclusive agreement with Nyala Mines to sort, cut, and market sapphires and rubies from the Chimwadzulu mine. Malawi also seeks to ascertain whether Columbia Gem is, or was, the parent company of Nyala Mines. Malawi alleges Columbia Gem has knowledge and documents in its possession, custody, or control that are relevant to the investigation….

You can also read the motion to unseal, Columbia Gem House's opposition, and the reply; the latter two documents also have the parties' perspectives on the various allegations behind the Malawi AG's actions.

Back in 2002, I ran a contest to find the countries least referenced in U.S. news sources, and Malawi won the prize in the over 1 million population category, and in the hits per million category (86 hits in 5 years, for a population of 10.7 million at the time). I'm happy to do my part to change that.

Amiad Moshe Kushner and MarcAnthony Bonanno (Seiden Law LLP)  and Keith David Petrak (Byrnes Keller Cromwell LLP) represent Malawi.

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[Josh Blackman] The First Liberty Institute Is A Defender Of The Jewish People

[Unfortunately, FLI is being lumped in with another group that made an unfair and uninformed attack on Rebecca Taibleson's rabbi. ]

The fallout from Rebecca Taibleson's nomination continues. I was very critical of an attack from a particular conservative group which focused on the rabbi that married Taibleson. That attack was distinct from a letter signed by about fifty other conservative groups, including the First Liberty Institute (FLI). Unfortunately, FLI is being lumped in with the organization that focused on Rebecca's rabbi, and it has been suggested that FLI favors a religious test, and is hostile to Jewish people.

I can speak from experience that such a charge is absolutely unfounded. I have worked with FLI for more than a decade. In 2016, a group of poultry activists sued a Chabad Rabbi in California on the eve of the Jewish New Year. The Rabbi, preoccupied with other tasks, did not respond to the suit. A federal judge issued an Ex Parte TRO that prohibited the Rabbi from performing an important ritual that involves chickens. I found out about the case, and stayed up all night preparing an amicus brief, arguing that the poultry group could not establish diversity jurisdiction because the amount in controversy was less than $75,000. At the same time, First Liberty Institute swooped in and prepared a representation for the Rabbi in about twenty-four hours. With little notice, they presented oral arguments over the phone. When no one else was willing to defend this Rabbi, FLI stepped up to the plate. I wrote about the case in the Los Angeles Times.

More recently, a group of Jewish people in a Houston neighborhood began holding services in a home. Over time, more and more people started to attend this small, friendly minyan. It was called Heimish, which means homey. Some neighbors began to complain about the noise, and the City of Houston threatened to take a zoning enforcement action. FLI once again stepped up to the plate, and the City of Houston backed down.

Just last month, FLI secured a victory for a Jewish student at (of all places) the University of Wisconsin. The student requested on campus housing in walking distance to a synagogue, so she could walk to Shabbat services. After receiving a letter from FLI, the University acquiesced. There are many more cases: a property dispute for a Chabad in Long Island, harassment of a Rabbi in Boca Raton, a Jewish prayer group in Hawaii, a Rabbi in Beverly Hills, and many more.

Every year I speak at First Liberty's annual conference, which usually runs over the weekend. For the past few years, I have brought shabbat candles, challah, and grape juice so my family can celebrate Shabbat. This past year, the FLI staff volunteered to coordinate everything, and brought all of the things needed to celebrate. It was such a thoughtful gesture, for which I was grateful. Indeed, my kids led a mini shabbat service for many people in attendance, who had never had that experience. It was beautiful.

I could go on.

Whenever conservatives oppose a Republican-appointed judge, we have the equivalent of a family feud. It's not ideal, but sometimes these issues need to be ventilated publicly, as Senator Cruz explained. But I think we need to be careful about unfairly assigning blame to those groups that speak out.

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[Eugene Volokh] Court Upholds Florida School District's June 2020 Decision to Cancel Food Supply Contract with Farm Whose Owner Viewed as Covid as Hoax

["[T]he evidence shows that the school system's interests in food safety were the reasons for its decision to break ties with Oakes Farms—not its bare disagreement with [owner's] political views."]

From Wednesday's decision in Oakes Farms Food & Distribution Servs., LLC v. Adkins, decided by Eleventh Circuit Judge Britt Grant, joined by Judges Jill Pryor and Stanley Marcus:

In spring 2020, the Covid-19 pandemic turned the world upside down. Alfie Oakes, the owner of a Florida farm and agriculture business, disagreed with the government's response—strongly—and he was not afraid to say so. He took to Facebook, where he described the virus as a "hoax" perpetrated by "corrupt world powers and their brainwashing arms of the media" to dupe "lemmings" with "COVID programming." Oakes also shared his opinions on other topics—the Black Lives Matter movement and George Floyd, to name a few.

Oakes Farms had been selling fruits and vegetables to a local school district for years, and the school board grew worried that Oakes's views about the pandemic betrayed a lax approach to food safety during a time when not much was known about Covid-19's transmissibility. Worries deepened after requests for the farm's pandemic protocols turned up nearly nothing, so the superintendent terminated the produce contract. Both Oakes and his farm sued, saying that the contract termination violated Oakes's First Amendment rights.

The district court saw things differently, and granted summary judgment to the school district. We agree. Although the owner was speaking as a citizen on important matters of public concern, the evidence shows that the school system's interests in food safety were the reasons for its decision to break ties with Oakes Farms—not its bare disagreement with his political views. Had there been evidence that the real motivation was punishing Oakes for these views, whether about Covid-19 or racial topics, it would be a different matter. But here, the evidence is not reasonably in dispute….

The First Amendment's prohibition on any law "abridging the freedom of speech" leaves room for the government's interests when it acts as an employer or marketplace consumer, rather than as a sovereign. In those contexts, to protect workplace efficiency and related interests, the government retains the ability to restrict its employees' speech well beyond the limitations it could place on private citizens. Otherwise, even backtalk about the most trivial internal matters could open a constitutional debate, potentially grinding essential government services to a halt.

Of course, that does not mean government employees have no free speech rights at all. Our cases have built a framework for vindicating public employees' First Amendment rights while still respecting the government's legitimate workplace interests. Under the employee-speech doctrine, we work through three questions to assess whether the government has unconstitutionally retaliated against an employee's speech. First, did the employee speak "as a citizen on a matter of public concern"? Second, did the employee's right to speak outweigh the government's interest "in effective and efficient fulfillment of its responsibilities"? Third, did the speech play "a substantial part in the adverse employment action"? …

Here, the speaker was not a government employee. He was the owner of a business that contracted with the government. But the Supreme Court has already confirmed that … the public employee speech cases … apply to independent contractors. "Independent government contractors are similar in most relevant respects to government employees, although both the speaker's and the government's interests are typically—though not always—somewhat less strong in the independent contractor case." …

Oakes clears the first step of the … test. When posting about controversial political topics on his personal Facebook page, on a Saturday no less, he was speaking as a citizen on matters of public concern. We turn, then, to the heart of the government-contractor speech analysis: balancing the school district's legitimate interests against Oakes's right to free speech….

Because courts are not human resources departments, we engage in a "deferential weighing of the government's legitimate interests" to avoid constitutionalizing every workplace grievance. Under that standard, we cannot say that the school district's interests here were insignificant. After all, the owner and namesake of Oakes Farms not only believed, but also felt compelled to publicly declare, that the Covid-19 pandemic was a conspiracy by "corrupt world powers" to bring down disfavored political figures, that only "lemmings" who were "controlled by deceit and fear" could be concerned about it, and that safety precautions taken in response were bringing the nation's economy "to ruins."

Superintendent Adkins had more than a thin basis for alarm. The combination of all those statements is highly probative of, as Adkins himself put it, "not taking this seriously." Add to that the less-than-reassuring responses following the school district's efforts to verify the adequacy of Covid safety protocols at Oakes Farms, and we cannot discount the weight of the district's interest in ensuring food safety for its students.

Adkins always—both publicly and privately—grounded his decision to cancel the contract on his concern for food safety. He testified that "[s]taff brought to [him] a concern about the lack of protocols that Oakes Farms had in terms of how it handled its food." That those worries blossomed into an investigation of Oakes Farms' antivirus protocols underscores their grounding in food safety. As Adkins explained, "Oakes Farms' perceived lack of concern regarding the easy transmission of COVID-19 and Mr. Oakes' belief that COVID-19 is not real" threatened "the health, safety, and welfare of the children" at Lee County schools. And he said that knowing the decisions he made "impact[ed] the lives of our students" and "their families," he needed "to err on the side of safety, particularly during a health crisis pandemic." We should be clear that this testimony supports the argument that Adkins's concern was food safety—not disagreement with Oakes's views about Covid.

To be sure, it appears obvious that Adkins did disagree with Oakes about Covid-19. But that difference in viewpoint was not the basis for his actions—a concrete concern about food safety was. That Oakes's speech alerted Adkins to the concern does not mean that he was being punished for his viewpoint, just like firing an employee after he confesses to embezzlement is not the same as punishing him for his different perspective on personal use of company funds.

There are fair questions about the strength of the district's interests because of what we know today about how Covid-19 spreads and its relationship to food safety. And Oakes Farms points to an FDA statement printed on the Marjon Specialty Foods protocols it handed over to school officials: "Currently there is no evidence of food or food packaging being associated with transmission of COVID-19." But the uncertainty and fear that were almost omnipresent during June 2020 make a demand for perfect scientific precision unfair to the school district. And poking holes in its choices with the benefit of hindsight is far from the deferential posture we assume when reviewing the government's interests.

That is not to say that any government fear justifies terminating a contract based on a contractor's speech. If Oakes owned a company that provided the school district with software, his views on Covid-19 would likely have been irrelevant. It would have been much harder for the district to show that it canceled the contract for any reason besides disagreeing with his viewpoint on Covid (or any of the other issues). But here, the tight connection between produce and physical health gave the government's interests significant heft.

No doubt, Alfie Oakes's interests were also substantial. He was speaking on matters of great public concern and widespread discussion. He posted on his personal Facebook page on a Saturday, and the speech drew no direct connection to his contract with the district. But ultimately, when viewed with the required deference, the school board's interests in ensuring the safety of food served to its students outweighed Oakes's right to free expression….

For more, including the court's explanation why there wasn't enough evidence to support Oakes' theory that "[t]he talk of food safety was a pretext for the district's real concerns, he says—Oakes's statements disparaging Black Lives Matter and George Floyd," see the full opinion. The court, however, added:

But let us be clear—if there were evidence of retaliation against Oakes because of his views on Black Lives Matter or George Floyd, that would be completely out of bounds. And the district court was incorrect to suggest the contrary. For example, it concluded that "Mr. Oakes's speech contradicted the messages of inclusion and anti-racism that the School District was promoting to its students," a concern that is plainly irrelevant to his company's food-services role. And the court also mused that "[p]rotests, and even the threat of protests, weigh in favor of the government's legitimate interest in avoiding disruption."

This kind of heckler's veto concern is not enough to survive First Amendment scrutiny. "Speech cannot be … punished or banned[ ] simply because it might offend a hostile mob." But the school district never advanced these interests and Oakes Farms has not shown that the decisionmakers were motivated by them, so we need not consider them here….

For more on how the heckler's veto plays out in at least some other government-as-employer cases, see this post.

Christopher Dale Donovan (Donovan Appellate Law, PLLC), James Donald Fox (Roetzel & Andress, LPA), Philip Fairman and Steven Sundook (Vernis & Bowling of Southwest Florida, PA), and William Talley (Cruser Mitchell Novitz Sanchez Gaston & Zimet, LLP) represent defendants.

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[Barry Strauss] A Night in Jerusalem

[History and a city at war.]

On a late summer night Jerusalem casts a magic spell. The first day of autumn is less than a week away but the daytime temperature is close to 90 degrees Fahrenheit, and the sun is relentless. Then the cool breeze of evening comes and it's like the soft touch of a cat's whiskers.

Jerusalem is a city that needs to be seen on three levels. The street is a cacophony of cars of course but also the thrust and parry of conversation in the cafes on Bethlehem Road. Viewed from above, from the YMCA tower, say, an elegant art deco structure designed by the same architect who built New York's Empire State Building, the city looks like a forest of stone. The walls of the Old City, the domes and spires of church, mosque, and synagogue, the graves of the Mount of Olives, the ubiquitous construction cranes ("Israel's national bird," as the joke goes) and the slabs of limestone that line the buildings they help to erect, the separation wall between Israel and the Palestinian territories.

But as a historian, I am drawn to what lies underneath Jerusalem. It is not difficult to find mementoes of the Great Revolt of 66-70 in which the Romans laid siege to the city, captured it and destroyed the whole town, including the Second Temple. I write about that revolt, and two other Jewish revolts against Rome, in my new book, Jews vs. Rome: Two Centuries of Rebellion Against the World's Mightiest Empire (Simon & Schuster, 2025). The death throes of Jerusalem come alive under the streets of the Old City.

You can visit, for example, the ruins of the mansions of the wealthy, which in their heyday looked across a valley at the Temple Mount. The splendor of these dwellings still survives in the fragments of mosaics, frescoes, and stucco. The owners were pious Jews, as shown by the presence of ritual baths and stone vessels. They were probably priests, maybe including the High Priest. You can also see traces of the fire that brought the buildings down.

Not far away is the so-called Pilgrim's Road, which led from the Pool of Siloam through the City of David to the Western Wall of the Temple Mount. It's a path that was followed by people coming to Jerusalem for one of the three annual pilgrimage festivals. Jesus might have trod this road.

Among many striking finds, the excavators discovered "blackened seeds" and "rich botanical evidence" that can be dated to the time of the revolt. These may be precious material evidence of what the historian Josephus, a contemporary, describes in his classic book, The Jewish War. That is, as Josephus reports, the rebels themselves burned the city's grain supply, perhaps in a series of inter-factional disputes—a counter-productive and even suicidal gesture to be sure.

How, I wonder, did the people of Jerusalem go about their business during the four years of the revolt? Some panicked, some fled, but most of them stayed as if nothing was happening, as if the Roman army wasn't prowling the country. Why? Maybe the answer lies in what I saw in Jerusalem one recent evening.

I saw the streets full of shoppers. Arabs and Jews crowded the upscale boutiques of the Mamilla Mall. Left in ruins by the fighting in Jerusalem in Israel's War of Independence, between 1949 and 1967, the area was No-Man's-Land between Israel and Jordan. Now it is Jerusalem's toniest emporium.

I saw two groups of street musicians.  One group was boisterous and joyful. A crowd of people followed it clapping and dancing through the mall toward the Jaffa Gate of the Old City. The other group, seated in a circle outside the Gate, sang softly in the night air.

That evening, the war in Gaza City was about to heat up, and everyone knew it. Even readers of goodwill might wonder how people at war—and the mall included soldiers in uniform—might go out for a night on the town. Yet there is nothing new about wartime societies enjoying precious moments of peace. As far back as the Trojan War, soldiers partied before going out to battle.

Not that Israelis aren't hurting after nearly two years of war. Most people are tired, some are traumatized, some fear for the future in an ever-more hostile region and world, and many are angry at their government (what else is new?). Yellow ribbons for the hostages are tied to the door handles of many cars, and posters along the streets recall those still in captivity or whose bodies have not been returned. Other posters show the youthful faces of soldiers who have died in battle. Political divisions in Israel continue as usual; I can't count the number of protests that I saw.

And yet, for all the pain and division, the indefatigable Jewish spirit, stubborn, resilient, and optimistic, prevails.

The morning after I visited Mamilla, the valleys of Jerusalem were full of fog. You could feel that the seasons changing. Both the start of autumn and the Jewish New Year are now just days away. May it be a happy and healthy year, one of a new beginning for Gaza, the safe return of the hostages and, above all, a year of peace for Israel and the whole region.

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