[Eugene Volokh, 3:58 PM]
GUNS, UTAH, AND OBSESSION: This coming Monday (the 10th), I should be on an NPR station (KUER, 90.1 FM) in Salt Lake City, debating Prof. Jack Rakove (Stanford) and Prof. Erik Luna (Utah) on gun-related issues. The show will be live at 11 am Mountain Time, and rebroadcast at 7 pm.

     Jack Rakove opposes an individual-rights view of the Second Amendment. People who oppose the individual-rights view are generally called "states' rights" or "collective rights" advocates, but I'm not sure that this is true as to Prof. Rakove. To the best of my knowledge, based on fairly extensive exchanges on various online discussion lists, his view might more aptly be described as a "no rights" view: The Second Amendment, under this approach, does not secure any right to anyone, whether individual, state, National Guard, or what have you, but was rather (unlike the other parts of the Bill of Rights) not seen by the Framers as having any legally binding effect at all. As most of you may know, I disagree with this perspective, but I believe that I have set it forth accurately here.

     Erik Luna has not, to my knowledge, spoken out extensively on how the Second Amendment should be interpreted, but he wrote a very interesting recent article, "The .22 Caliber Rorschasch Test," Houston Law Review, vol. 39, p. 53, that discusses both the academic debates and the public debates on gun rights issues. At the very least, I can say that the article is quite calm, fair-minded, and thoughtful. I much look forward to making his acquaintance.

     The show is apparently titled "The American Obsession With Guns," but I made a pitch to the producer for why the title is unsound -- in my view, Americans are no more obsessed with guns than they are with, say, speech, religion, abortion, or a variety of other hot-button topics.

     It's true that many Americans feel strongly about what they see as their right to defend themselves, and many others feel strongly about their view that guns (either all guns or at least all handguns) should be banned. But strong views about important issues aren't "obsession," a term which suggests an irrational focus. It is in fact quite rational, even proper, for citizens to be concerned about issues that are literally matters of life or death (in either the pro-gun or anti-gun worldview).

     Some people may approach the matter in a way that some others might see as too impassioned, even for a subject this important. But (1) only a relatively small fraction of Americans actually feel that overwhelmingly deeply about the subject (though this small fraction may indeed be especially memorable, and might thus skew our perception of how America at large thinks), and (2) it may actually be a good thing that some people feel so strongly about the matter, because for every issue there need to be some activists who invest a lot of effort -- more than you or I would -- in stimulating public debate on that subject. We'll see if the program's buy accept my arguments and deemphasize the title, or if the mispplaced focus on "obsession" remains a big part of at least the moderator's presentation.

     In any case, I much look forward to the program. I feel confident that this will at least be a substantive and polite conversation, based both on my experience with Jack Rakove and my reading of Erik Luna's article.

 
[Eugene Volokh, 11:20 AM]
PREDICTIONS: The May 2002 Wired, pp. 64-65, had an excitingly designed (of course) and in many ways quite informative spread on demographics, comparing birthrates and technology in various parts of the world. (As one might expect, the birthrate is generally negatively correlated with technology, except, curiously, in Europe.)

     But it also had an example of Massive Statistical Nonsense, type 32a -- the precise-seeming but utterly unsound demographic prediction: "[B]y 2100, [Sub-Saharan Africa] will have a greater percentage of people over 60 than Europe does now." "By 2050, [Mexico's population] will stabilize." "The Eastern Pacific will have the oldest population in the world by the end of this century, when about two-thirds of Japanese will be at least sixtysomething."

     Let me ask this: If in 1900, someone tried to make these sorts of predictions about the world in 2000, could they possibly have been remotely correct? Let's even assume that they had the best of today's statistical tools magically transported to them. Who could have predicted the developments of technology (the birth-control pill, and much more), of culture (growing sentiments in favor of sexual equality, and much more), of politics and economics (Communist stagnation, and much more), of military history, and of population migration (both of large groups and, as significantly, of the most productive subsets of those groups)?

     It's just not possible to make sensible demographic predictions over the span of 100 years, or even 50. What will be the long-term effects of the AIDS epidemic? Of other possible diseases? Where will the next wars be fought, how devastating will they be, and how many refugees will they scatter, and to where? Which countries will be the economic dynamos, not 10 or 20 years from now, but 40 or 70? Which will suffer politically-induced economic stagnation or meltdown?

     The Wired article tries to hedge a bit, with a Note: "Projections assume that the average person will live for 80 to 120 years and that low fertility trends will continue over the next century. If a sudden breakthrough that leads to greater longevity occurs, expect to see a short-lived baby boom followed by a collapse in the birthrate." But this focuses on one demographic factor -- medical technology -- while completely ignoring the others -- such as economics, warfare, politics, and migration -- that show every sign of continuing to be much more important.

     SPECIAL ITEM FOR THE NITPICKERS: Malta is listed as a country in Asia.

     UPDATE FOR THE NITPICKERS: Reader Arthur Fleischman points out that Japan is on the West shore of the Pacific. On the other hand, it's the Pacific side of East Asia, and on the East Asia / Eastern Hemisphere side of the Pacific. I suppose that much depends on the conventions -- if enough people call it Eastern Pacific, then it's the Eastern Pacific. But if the Wired people are just making this term up (and a google search came up with few references to it, and the chief one seems to define the Eastern Pacific as in fact being the side nearest America), then I agree that they should have used something better.

 
[Eugene Volokh, 9:38 PM]
PRIEST-PENITENT PRIVILEGE AND CATHOLIC CHURCH SCANDAL: Jeremy Lott has an insightful piece in The American Prospect on how the Catholic Church scandal may end up undermining the priest-penitent privilege; I much recommend it. (Thanks to InstaPundit for the link.)

     I think Lott might err slightly, though, when he says that "Clearly, Catholics have a special privilege when it comes to the confessional, which they claim is required in order for them to enjoy full religious freedom." To my knowledge, in all jurisdictions the clergy-penitent privilege applies to all religions that take the view that such communications should be kept confidential (see, e.g., the California statute); in fact, I believe that a special dispensation available only to Catholics and not to other religions that take this view would violate the Establishment Clause. And to my knowledge, quite a few religions do indeed view various communications to one's clergy as confidential, and thus take advantage of the privilege.

     Again, this doesn't detract from the article's main point; and I agree that the privilege is very important to Catholics, perhaps more so than at least to some other groups. Nonetheless, I do want to stress that Catholics are not getting a special Catholic-only dispensation here.

 
[Eugene Volokh, 9:04 AM]
I'M OFF TO D.C., to give a talk on the First Amendment and new technology at the American Political Science Association / American Association of Law Schools conference on constitutional law. Actually, though, that's just an excuse; the main reason for all my trips to D.C. is to hang out with my D.C. gang of friends, whom I accumulated when I lived there when clerking, when I taught at George Mason last Fall, and just through the normal tendency of interesting lawyers to end up in Washington. My cobloggers will be upping their Blog Participation Rate to make up for me, though, and I might even check in occasionally myself.

 
[Eugene Volokh, 8:50 AM]
CHILD INTERNET PROTECTION ACT CASE: My TechCentralStation "CyberLaw Maven" column on the library filtering case -- mostly based on my earlier blog post -- is now up.

 
[Eugene Volokh, 8:32 AM]
SCHOOL CHOICE: William Sulik has interesting predictions about the Court's forthcoming school choice case, Zelman v. Simmons-Harris.

     I take the view that equal treatment is not establishment, and that therefore a school choice program that benefits parents without regard to whether they send their kids to religious or secular schools is perfectly constitutional. I discussed this view in a New Republic article, and then in more detail (though I hope without too much legalese) in another piece.

     Unfortunately, only four Justices -- Rehnquist, Scalia, Kennedy, and Thomas -- fully share my view. (At least some of them, I regret to say, often go further than I would, and would endorse preferences for religion as well as equal treatment; I generally oppose such preferences, but that is a story for another day.) However, O'Connor and Breyer, in an opinion in Mitchell v. Helms (2000) seemed to pretty specifically endorse the "equal treatment is not establishment" position at least as to individual choice programs, where the money flows to religious and secular institutions through the choices of individual beneficiaries.

     My guess then is that the vote will be 5-4 to uphold school choice, with O'Connor joining Rehnquist, Scalia, Kennedy, and Thomas. My backup guess is that it will be 6-3 to uphold, with Breyer also joining O'Connor and the other four. (My main prediction is 5-4 rather than 6-3 because Breyer's vote in Rosenberger v. Rector (1995), admittedly a somewhat different case, suggests that his Mitchell v. Helms support for evenhanded programs is fairly soft.) My fear is that it will be 5-4 to strike down school choice, with O'Connor joining Stevens, Souter, Ginsburg, and Breyer. And I highly doubt that it will be 7-2, as William Sulik suggests (he suggests that Stevens and Souter will be the dissenters, though I think that Stevens and Ginsburg would be a more likely lineup for that, see their in my view entirely unsound position in Capitol Square Review & Advisory Bd. v. Pinette (1995)).

     But all this predictioneering is just a parlor game -- within a month, we'll know for sure.

 
[Eugene Volokh, 7:40 AM]
LIBERTY VS. SECURITY: People often say that it's "a fallacy" to "sacrifice[]" "civil liberties . . . in the name of heightened security" (I'm quoting a generally quite thoughtful and interesting message I received from a reader).

     This could mean one of two things. First, it could mean that we should never allow restrictions on liberty in order to get security. But this can't be right, because we of course must restrict liberty in some measure in order to protect ourselves against enemies foreign and domestic.

     That's why the Fourth Amendment prohibits only unreasonable searches and seizures, not all such searches and seizures; that's why the government can search your home, albeit with a warrant and probable cause. That's why we have trials and prisons, even though we can be positive that even with the best justice system, some innocent people will be wrongly convicted. We accept these restraints on our liberty, because they're needed in order to get adequate security.

     Ah, but maybe the statement means simply that we shouldn't allow new restrictions on liberty, beyond the ones we already have. "Sacrifice civil liberties" would thus mean "diminish the liberties that we now enjoy," with the baseline being the current rules, rather than some regime of perfect liberty.

     But why should we think that the current regime is the perfect one? Maybe it doesn't restrict the government enough in some areas. Or maybe it restricts the government too much in others. Or maybe when current laws bars "unreasonable searches and seizures," events that increase the threat to our security might make "reasonable" what might not have been reasonable before. There's no particular reason to enshrine the current rules as the ones from which we may never budge, no matter what the reasons.

     Finally, some articulate this via the quote attributed to Benjamin Franklin, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." But all the work is being done here by the qualifiers "essential" and "a little temporary." Of course giving up something essential in order to obtain a little temporary benefit is a mistake. But one can equally correctly say "They that can give up essential safety to obtain a little temporary liberty deserve neither safety nor liberty." Unless the statement claims that all liberty is inherently essential, or all safety benefits are inherently little and temporary (in which case it's just mistaken), it's simply a truism that at most calls on us to carefully measure how much we're giving up and how much we're getting in return.

     This having been said, I fully agree that (1) many proposed restrictions on liberty are likely to be unproductive or even counterproductive, (2) the government often has lots of incentive to ask us to give up more liberty than we need to, and (3) we therefore should closely scrutinize all proposals for restricting liberty in order to get safety. And I know that there are good arguments that (4) the current regime already asks us to give up too much liberty in many areas.

     But the analysis has to acknowledge that we must sometimes sacrifice some liberty in order to protect ourselves, and thus has to focus on the specifics of each proposal -- the magnitude of the loss to liberty, the magnitude of the gain to safety, the alternative means that might yield a better trade-off, and so on -- rather than on broad generalities about liberty and safety in the abstract.

 
[Eugene Volokh, 7:36 AM]
"JENIN 'MASSACRE'?" A good piece from NPR's "On the Media" on the made-up Jenin "Massacre", and especially on the European media's role in that. Some excerpts:

BOB GARFIELD: Two months later, it is clear there was no such massacre. The number of Palestinians who died in the Israeli operation was at most 56 in separate firefights. But throughout the world, the unskeptical reports of a massacre and of Israeli war crimes were commonplace. American news organizations were generally circumspect and cautious, but according to UPI senior news analyst Martin Sieff, the Europeans were particularly careless. According to Sieff, the restrictions on press access to Jenin led the media down a dangerously speculative path. . . .

MARTIN SIEFF: These people [Amnesty International, the UN, and others] played a very significant role in this, and one of the lessons we should learn, and the media on both sides of the Atlantic should learn from this experience is: you cannot trust blindly. I don't say not trust at all, but you cannot trust without independent verification what organizations like even Amnesty and the UN come out with. Here the human rights organizations which have been too slow to blow the whistle in other situation, blew it too fast. . . .

BOB GARFIELD: Is there an undercurrent of anti-Semitism in the reporting among these major European newspapers?

MARTIN SIEFF: In some cases, yes, definitely. You have the columnist, who is not a reporter, at Jenin, but a London columnist, A.N. Wilson, very respected literary figure, in the Evening Standard accuses the Israelis of poisoning the water of the Palestinians. Now there is no evidence this occurred. Not the slightest! But it, it ha--has very disturbing echoes of one of the accusations which was used as an excuse to slaughter Jews for hundreds of years in the Middle Ages--that the Jews are demonic figures and cowardly figures who poison water!

 
[Eugene Volokh, 4:12 PM]
MORE ON THE SECOND AMENDMENT POLL: The Zogby people, with the SAF's permission, were kind enough to pass along the table with the breakdown by region, 2000 Presidential vote, age group, gender, party affiliation, and income. Noteworthy: The gender gap was small (men went 78-19-3 [yes-no-don't know], women went 71-24-5); the party breakdown wasn't huge (84% took the individual rights view among Republicans, 76% among Independents, and 65% among Democrats); and even in the least pro-individual-right region, the East, 60% took the individual right view.

     More on the poll here.

 
[Eugene Volokh, 3:26 PM]
MORE RACIAL PROFILING ERRORS: The New York Times this morning has an above-the-fold subhead: "Justice Plan to Require Muslims to Register." The first paragraph echoes this in considerable masure: "The Justice Department will propose new regulations this week requiring tens of thousands of Muslim and Middle Eastern visa holders to register with the government and be fingerprinted."

     Sounds rather iffy -- after all, how do you know whether someone's a Muslim? Do you investigate everyone's mosque membership? Do you require them to denounce Mohammed as proof of their religion?

     Actually, the requirement is not that Muslims register; rather, as the second paragraph points out, all people from certain countries that "pose the highest risk to our security" (quoting Justice Department officials) are covered. Muslims from England aren't covered. Hindus from Pakistan or, I assume, Christians from Egypt (it's not clear whether Egypt is on the list, but Pakistan is) are covered.

     And this is very important: When people complain about discrimination ("some civil liberties and Arab-American groups expressed outrage at the proposed requirements, arguing that such a policy was a blatant example of racial and ethnic profiling"), they're complaining that someone is being treated worse because of some attribute. It's thus important to identify clearly what the attribute is. Is it religion? Or is it status as citizen of a particular foreign country (and unfortunately, many of the countries that pose the highest risk to our security are indeed majority-Muslim countries)?

     Discrimination based on race or religion does indeed go against important American constitutional traditions, and broader ethical principles as well. It may on very rare occasions be proper, but we should always be suspicious of it. (It turns out, incidentally, that the arguments against religious discrimination and religious profiling have to be somewhat different than those against racial discrimination and racial profiling, but I think they are quite powerful.)

     Discrimination based on the foreign country in which one is a citizen stands on very different legal and ethical footing. Legally, I don't believe there's any constitutional bar to such discrimination. And ethically, we have to recognize that the nation of one's citizenship can quite properly be counted in our government's decisions, especially ones related to immigration and national security.

     The problem with the internment of Japanese-Americans during World War II was precisely that they were Americans, who were entitled to a presumption that they'd be just as loyal as other Americans. But there's no reason to assume that noncitizen visitors will be loyal or even friendly to our nation. Many are friendly, but not all are. And it stands to reason that those from countries that have a great deal of anti-American sentiment would be more likely to be hostile to American interests.

     What's more, since they are not American citizens, their presence in the U.S. is a matter of grace, not (as with citizens) a matter of constitutional right. General suspicions that might not justify (quite independently of discrimination questions) restraints on citizens may well justify some modest restraints on noncitizens.

     This difference between citizens and aliens, coupled with eminently permissible classification based on country of citizenship, shows the error in the claim, made by James J. Zogby, president of the Arab American Institute, that "This is targeting a group of people, the overwhelming majority of whom are innocent, but whose lives will be turned upside down," Mr. Zogby added. "The message it sends is that we're becoming like the Soviet Union, with people registering at police stations."

     First, it's hard to see why requiring fingerprinting and registration would turn people's lives upside down. Second, the requirement that people register their addresses is hardly limited to the Soviet Union; I believe many European countries require this, too, and while that's not an argument that general registration is good, it does show that the Soviet Union analogy doesn't prove much.

     But third, and most important, it's perfectly proper to require foreign citizens to register even when we don't require this of our own citizens. Foreign citizens are not Americans. They do not have a legal right to be here. We are perfectly entitled to deport them when their visa term comes up, or for other reasons, and it's helpful for that purpose to have some idea where they are. They have not earned our trust, or sworn allegiance to us. They are our guests, and we should treat them fairly. But there's nothing unfair about a host claiming the right to know where his guests are, and what they're doing on his property.

     (There's also an updated version of the article on the N.Y. Times Web site this afternoon.)

 
[Eugene Volokh, 11:42 AM]
ZOGBY POLL ON VOTERS' ATTITUDES ABOUT THE RIGHT TO BEAR ARMS: I just got an e-mail from someone at Zogby -- a reputable polling firm -- about their recent poll (funded by the Second Amendment Foundation) on the right to bear arms. According to the press release,

     A wide majority of American voters (75%) agree with the Justice Department’s position that the Second Amendment guarantees the right of individuals to keep and bear arms. Just over a fifth (22%) disagree with the Justice Department, while 4% are unsure. . . .

     Zogby International interviewed 1,015 likely voters chosen at random nationwide on behalf of the Second Amendment Foundation, an educational and legal defense organization that works to protect the civil rights of firearms owners. All calls were made from Zogby International headquarters in Utica, New York, from Tuesday, May 28 to Thursday, May 30, 2002. The survey has a margin of sampling error of +/- 3.2%.

     Republicans (84%) were most likely to agree with the Justice Department’s position. Residents of the South and the Central/Great Lakes, and West (79% average) as well as respondents 18-24 years old (82%) were also more likely to agree. Majorities of Democrats (65%), Easterners (60%), respondents earning $75,000+ annually (70%) and those 65 years or older (65%) also agreed with the Justice Department.

I have e-mailed Zogby to ask for more details, and especially the wording of the question; that's obviously very important, and I'll report on that as soon as I hear the answer.

     Now naturally public opinion doesn't dispose of the legal question; constitutional meaning can't be decided by Zogby Poll. And I realize that public opinion on these matters is often quite sensitive not just to the way the question is phrased, but also to what has been in the news recently. Perhaps the results would have been different right after, say, the Columbine shootings, or they might change if a popular Administration prominently switches back to a states'-rights position.

     But I do think that this survey puts in proper perspective claims that the Administration's Second Amendment views are somehow "radical", extremist, or otherwise out-of-touch. Calling your opponents radical or extremist (something that both the Left and the Right do too often) is usually an attempt to shift the debate away from the merits and towards a supposedly objective claim about popular opinion: I don't need to get into a tough debate about whether Judge X or Attorney General Y is right, because I can just point to the objective fact that he's Out Of Step With The People. Except that here the Bush Administration seems to be very much in agreement with the people.

UPDATE: The Zogby people very promptly responded to my request for the text of the question; it was "Do you agree or disagree with the current Justice Department's position that the Second Amendment guarantees you the individual right to keep and bear arms?"

     I'm not a polling specialist, but I suspect that this question would have yielded a lower pro-individual-rights position if it had just asked "Do you believe that the Second Amendment guarantees an individual right to keep and bear arms, or a right that's limited only to the National Guard?," or something like that. Mentioning the views of a fairly authoritative institution like the Justice Department, and explicitly mentioning only one side's position, may temporarily shift to the individual rights side some people who are not very familiar with the debate.

     Still, any possible phrasing might have some flaws (is "limited only to the National Guard" the right phrasing of the states' rights view? would "limited only to state militias" be better, or would it just be confusing, given that "militia" means different things to different people?), and referring to the Justice Department's views does help test whether people really see the Justice Department's position as radical. I'd love to see the results of surveys done with other questions -- if, say, the Ban Handguns Now people at the Violence Policy Center commissioned a reputable survey outfit to do a similar survey with their preferred wording, this would provide a great perspective both on the gun debate and on surveys. But for now, the Zogby survey at least makes clear that the supposedly "radical" Justice Department view is at least well within the mainstream of public opinion.

 
[Eugene Volokh, 11:19 AM]
WAR: After 9/11, I heard lots of claims that we weren't at war, because there was no declaration of war. One came just today from a reader (note that the question was whether we were at war shortly after 9/11):

I take serious contention with your statement that "we are at war." Last I checked, there had been no official declaration of war by the US government against any one officially recognized national entity. As such, the war on terrorism is no more or less hyperbole than the war on drugs. Concepts such as collateral damage (ie the "bad things" that "happen during war" which you speak of) don't apply to a metaphoric war.

     This, I think, is a fallacy. International law, domestic law, and common linguistic usage have all long recognized that a nation can be at war without a declaration of war. The law and usage both focus on what is in fact happening, and not just on whether certain magic words have been used. The U.S. was at war during the Civil War, during the Korean War, and during the Vietnam War, though to my knowledge there were no declarations of war then. There is simply no legal or linguistic rule that says the contrary.

     I've heard lots of good arguments as to why it would have been better had we officially declared war -- that may in fact be so. But even without this declaration, we were certainly at war after 9/11, and I'd say that we're at war now, too, though in a calm phase of the war. This isn't hyperbole, or metaphor, but fact, and both law and usage recognize this fact.

 
[Eugene Volokh, 9:57 AM]
FIRST AMENDMENT PROTECTION FOR COMMERCIAL SPEECH has been on a roll of late. Most recently, the Supreme Court struck down limitations on the advertising and promotion of "compounded" drugs by pharmacists -- a decision that could open up a bunch of new challenges to FDA regulations. Jonathan Adler notes the FDA is taking the threat seriously; some regulatory advocates are worried, but Adler thinks that the FDA paying attention to the Constitution isn't such a bad thing.

 
[Eugene Volokh, 9:50 AM]
AIR FORCE OFFICER PUNISHED FOR BAD-MOUTHING THE PRESIDENT: A Lieutenant Colonel in the Air Force was suspended, and could be court-martialed, for a letter (published in the local newspaper) harshly denouncing President Bush for his handling of terrorist threats.

     I generally take a broad view of free speech -- but not in the military. Military discipline is vital, both for making the military an effective defender of our liberties, and to prevent it from being a threat to our liberties.

     Military law therefore needs to instill a sense of obedience to the chain of command (of course, setting aside orders that themselves violate military law, but that's a narrow quesiton that I think isn't really implicated here); and one way it must do this is by requiring military personnel, and especially officers, to show respect to their superiors. I took this view with regard to the military officers who were punished for publicly saying things that were disrespectful of Clinton; and I think the same goes for Bush.

     Of course, as will all such rules, they need to be limited by a sense of proportion. The military must have room for sensible and respectful criticism of one's commanders, if only to let higher commanders know when an intermediate officer is failing at the job. This goes double for similar criticism of policies, if the criticism is routed through proper channels. I strongly suspect that the military may often not do enough to protect such constructive discussions. And of course the last thing we'd need is some zero-tolerance policy that goes after casual grousing over dinner, and turns everyone into an informer on his buddies.

     But if you're a Lieutenant Colonel, you can't deliberately badmouth your commanding officer -- even if he's many chains up the level of command -- in a public venue. Wait until you're out of the service for that.

     (Link via Instapundit.)

 
[Eugene Volokh, 8:33 AM]
PORNOGRAPHY IN PUBLIC: Sneaking Suspicions asks whether the law may bar people from placing "sexually explicit photographs" in places that are open to the public. This is an interesting and complex question, which -- believe it or not -- makes a cameo appearance in an article that I've been working on for several years but have put on the back burner. (One reason that I've put it on the back burner is that I'm not sure about the right answer to this question, and to the various others that the article raises).

     Even Justice Brennan's Miller v. California (1973) dissent, which argued that there should be no First Amendment exception for obscenity (i.e., really hard-core pornography) suggested that there should be some room for punishment of public displays of such pornography. On the other hand, the Erznoznik v. City of Jacksonville (1975) case made clear that mere public displays of nudity may not be outlawed. (The law in Erznoznik barred people from showing nudity on drive-in theater screens which were visible from public places.) Where's the line drawn? Just at obscenity, the same place where the line is drawn with regard to sales for private viewing? Or is there some material that's constitutionally sellable to consenting adults, but not protected when displayed in public? The Supreme Court has never said anything about this, and lower courts haven't been very helpful either.

     However, there is a longish line of lower court cases that deals with bans on public display of "obscene-as-to-minors" material. Most of the cases uphold state statutes that ban the public display of such material (material that essentially fits the Miller obscenity test, but with an "as to minors" added to each prong) in places where minors can see them. The theory, whether you buy it or not, is that this is just a modest burden, since distribution and display to adults is protected, and that it's important to shield minors from such material -- courts are generally friendlier to "protect minors" arguments than they are to "prevent offense to unwilling adult viewer" arguments. I briefly describe and cite these cases in my article on the Reno v. ACLU decision, near footnotes 154 & 155. The Child Online Protection Act, which the Court discussed in its Ashcroft v. ACLU case last month, is loosely based on these laws; the Court, though, didn't squarely decide whether the Act is constitutional, nor did it give it much guidance about whether laws barring public display of obscene-as-to-minors material are constitutional.

     Note, though, that all this focuses on whether it's constitutional to outlaw such public displays -- but we'd also have to figure out whether the state government has indeed outlawed them. Some state bans on obscene-as-to-minors displays, for instance, apply only to commercial displays; the example mentioned by Sneaking Suspicions was apparently noncommercial.

     Finally, all this talks about the law as it is; I express no judgment here about what the law should be.

 
[Eugene Volokh, 7:32 AM]
PROFILING, LEADING TO WHAT? The Comedian writes:

I like the thought of removing blanket security screenings and replacing them with a system of simply looking for suspicious behavior, suspicious individuals, and yes, males of Arab/Muslim appearance. Young men with dark complexions do deserve more scrutiny than octogenarian grandmothers. Harassing everyone evenly so that you can harass individuals without complaint wastes security resources, and it provides political cover for do-nothing bureaucrats to give the appearance of doing something.

Pilots should have the option to carry effective weapons. (Heck, FAA regulations on 9/11/2001 did allow this, but none of the airlines bothered to get a training program certified.) Private citizens should have the same option, perhaps after passing a rigorous screening and training program, or maybe just upon showing their CCW (or VT driver’s license, since VT doesn't require a permit).

     There are quite reasonable arguments both for and against racial and ethnic profiling of airline passengers -- but the trouble is that some people suggest "profiling" and "more scrutiny" without explaining what happens afterwards.

     Let's say that we remove blanket security screenings for guns. Security personnel see that there are six Arab-looking males, so they search them and find that two have guns. (The personnel miss three other Muslim extremists with guns, because these particular Muslim extremists were chosen in part based on their looking like a typical Caucasian, or for that matter like a typical Hispanic, and the security staff didn't want to search all the dozens of Hispanics on this Miami-Los Angeles flight.) The gun-carrying Arab-looking males, however, present Vermont driver's licenses; they say that they are Arab immigrants working at a gas station in Burlington. They're not on any watch lists.

     What happens then? They may "look suspicious," but once you "harass" them and give them "more scrutiny," you may end up with nothing tangible, except for a fear that these two Arabs with guns are actually terrorists, as opposed to other passengers who might have guns, who you assume are just law-abiding citizens. So do you demand that they check their guns and not let them board? For no reason other than that they are Arabs, and that despite any tangible information, they continue to look suspicious?

     Look, there might be a good argument for that: But we should admit that we aren't just talking about profiling here, or harassment, or more scrutiny, but an actual denial of a right that The Comedian at least thinks is a very important one. That's one problem with racial and ethnic profiling that's sold as a mere investigative tool -- it can easily turn into outright racial and ethnic discrimination as to what people may or may not do, and not just a bit of extra time that people have to spend talking to the police.

     So racial profiling for investigative stops, to be effective, may in this case have to turn into straightforward racial discrimination in applying the guns-allowed policy. But while some might see this as too harsh with regard to the innocent (especially if you believe that carrying self-defense tools is a fundamental human right, constitutional or otherwise), it is way too mild with regard to the guilty.

     If these people were in fact would-be hijackers, the only consequence of their actions was having their guns be checked, and probably having their records updated to reflect that they tried to fly with a gun (which, by hypothesis, is perfectly lawful behavior). They just say "Oh, darn, didn't work this time -- let's try again later." And whatever the flaws in screening for guns, surely screening for suspicious behavior and suspicious-looking people isn't terribly reliable, either -- and therefore on one flight, they will be successful in bringing their guns aboard.

     Of course, maybe even this isn't necessary, since on the original flight, the three Muslim extremists who look more European or Hispanic managed to get on with their guns just fine.

     This is supposed to be an improvement over the current system?

 
[Eugene Volokh, 7:06 PM]
LAWSUIT OVER DISCRIMINATION AGAINST MIDDLE-EASTERN-SEEMING AIRLINE PASSENGERS: "Civil rights groups filed lawsuits against four major U.S. airlines on Tuesday, alleging the airlines took five men off post-Sept. 11 flights simply because flight crew and other passengers had suspicions they were Middle Eastern."

     These cases aren't just about "racial profiling," in the sense of singling out people for some extra questioning and hassle; they have to do with outright denial of service based on race and ethnicity. Federal law does prohibit this, so if the facts alleged in the lawsuits are indeed accurate, then the plaintiffs would probably have good cases, though I would have to check the exact statutory claims to be sure.

     But not everything that can be sued over should be sued over. I sympathize with the plaintiffs, who were inconvenienced and must have felt humiliated. Still, if I recall these circumstances correctly, they happened shortly after Sept. 11. People were quite understandably concerned. No-one knew if more attacks were in the offing (and as the shoe-bomber incident shows, it turns out that they were). Both the pilots and fellow passengers felt their lives were at stake. It seems to me the plaintiffs should feel some sympathy with the airlines.

     More broadly, I don't think it's good either for the ACLU or the American-Arab Anti-Discrimination Committee to try to score antidiscrimination points in this particular context. This sort of situation is the area where the public has the greatest reservations about nondiscrimination, and for good reasons. Now perhaps this just shows the ACLU's commitment to putting its principles over political tactics (even tactics in the ultimate service of achieving its political ends). But I still suspect that it's unwise.

     And it seems to me that it's also not good for the Arab-American community more broadly. We're in a war. Lots of bad things happen during a war -- things much worse than inconvenience, humiliation, and even race discrimination. Sure, one still has one's legal rights, and one can sue to enforce them even during wartime. Sometimes, one should, when the injury is great enough.

     But sometimes, it seems to me, one should refrain, if only to make a sacrifice as a token of the greater sacrifice that others have made and will be called on to make afterwards. And it might be helpful to envision the symbolism of this small wrong done to you being juxtaposed in the public mind with the far greater wrong done to thousands of your compatriots only a few days before.

 
[Eugene Volokh, 4:55 PM]
SLATE ON LAND USE: A very sensible Everyday Economics column from Steven Landsburg on takings and land use.

 
[Eugene Volokh, 3:14 PM]
WITCH HUNTS: I keep hearing about witch hunts -- it's a common allegation, but most recently it's been made with regard to various racial profiling proposals. Here's an excerpt from a Robert Scheer L.A. Times commentary titled We've Had Enough Witch Hunts and subtitled "War on terrorism does not justify racial profiling":

Nothing succeeds like failure. Suddenly, everyone wants to grant the FBI and other intelligence agencies even more power despite the fact that they failed so spectacularly to utilize the expansive powers they had to head off terrorism before Sept. 11. In a sign of mass impotent rage, liberal columnists and politicians are joining right-wing talk show blatherers in insisting the FBI not be "hamstrung" by the restraints of civil liberty.

First to go? Freedom from discrimination based on ethnicity, race or nationality. Racial profiling, popular since the Dark Ages, is again in vogue. Consider Sen. Dianne Feinstein's (D-Calif.) comments Sunday that to prevent terrorism "one isn't going to look for blond Norwegians" and that "the racial profiling debate has [had] . . . a chilling impact" on the FBI. . . .

If we were to be honest in making the case for profiling, we would go after Saudi Arabians and their business partners and other associates in this country. The Sept. 11 attacks were -- from Osama bin Laden to 15 of the 19 hijackers to the money that supported them -- an operation with top-to-bottom links to Saudi Arabia, a kingdom our military has protected for half a century and which enjoys close ties with Bush's family. Instead of harassing loyal Arab Americans, the FBI would be better advised to squeeze executives from U.S. corporations, such as the Carlyle Group and Bechtel, that have extensive ties to the Saudis.

What we don't need is a witch hunt against the American people, ferreting through their private lives or detaining them because of their ethnicity. If there is a group that should be looked at closely, and with suspicion, it is the top officials of this administration, whose indifference and incompetence before Sept. 11 may have permitted an incredible tragedy.

Now the amount of irrelevant and inflammatory innuendo here is quite large, and this is just an excerpt. Does Scheer really have evidence that U.S. executives were likely involved in these terrorist attacks, or would likely be involved in such attacks in the future? I somehow doubt it, but, if that's so, then it's just a gratuitous and unsubstantiated smear. (If his argument is that the government likewise has no reason to suspect travelers of Arab descent, then that's just plain wrong. Unfortunately, we do have evidence that some travelers of Arab descent have been terrorists. Does he have the same evidence as to Bechtel executives?)

     "Right-wing talk show blatherers" -- nice touch, that really shows the author's open-mindedness, civility, and commitment to rational discourse. How about "Racial profiling, popular since the Dark Ages"? Actually, I suspect that it has been popular for hundreds of thousands of years, and is probably more constrained in America today than it has ever been in any society.

     What's more, "popular since the Dark Ages" is just a pejorative, not an argument: Breathing has been popular since the Dark Ages, too, but that doesn't make it bad. Breathing works. So, the advocates of racial profiling argue, does racial profiling, which is why people have used it and want to use it again. If you disagree, go ahead, but do so on the merits, not using irrelevant allusions to the Dark Ages.

     But finally, let me return to his intro (and mine) -- "witch hunts." Witch hunts are wrong for a simple reason: We know that there are no witches. If there were witches, who could blight your crops, make you sterile, and turn you into a newt just by an incantation or two, then of course we should hunt them. And humane as I like to be, if witches really had these awesome powers (which quite likely wouldn't stop at the bars of their prison cell), of course we'd have to take some radical steps to protect ourselves. I'm just as much against burning as the next man, but in a case like this . . . . Wait a sec, I don't need to be in favor of burning them, because we know that there are no witches!

     There are, however, terrorists. There are, I'm sorry to say, Arab terrorists: There certainly were at least 19 of them on September 11, and pardon me for leaping to the conclusion that there are probably at least one or two more still around. Hunting them is a very good idea.

     Of course, this end does not justify every means. I'm entirely open to the argument that racial profiling is a counterproductive means. (To his credit, Scheer does argue that "Police departments across the country have found such tactics alienate otherwise loyal minority communities whose cooperation is indispensable to investigations, and it [racial profiling] also wastes limited resources." If the rest of the column were equally substantive, I wouldn't be writing this post, whether I agreed with Scheer's conclusion or not.)

     I'm also open to the argument that even if racial profiling is helpful in the fight against terrorism, it's so morally wrong and practically harmful in other ways that on balance we should reject it. (I actually plan to have a post tomorrow morning criticizing one particular pro-profiling argument, and expressing my own more general unease with a certain style of pro-profiling argument.) These are genuinely tough questions.

     But deriding profiling proposals as "witch hunts" just doesn't help us answer those questions. It is, like much of the rest of Scheer's column, merely pejorative characterization, not a reasoned argument. It's a faulty analogy that, when considered, simply reveals the faults in the column's analysis. The racial profiling debate deserves better.

 
[Eugene Volokh, 12:47 PM]
BLACKMAIL UPDATE: Diana Hsieh reasons that blackmail in fact should not be illegal. I have to say I disagree -- in my view, a world in which blackmail were legal would be a much worse world than our current one, even given legalized blackmail's tendency to deter bad behavior -- but surely that's one way out of the Great Blackmail Puzzle.

 
[Eugene Volokh, 12:01 PM]
A BIT MORE ON ABORTION-CAMS: Reader George Byrd points out that if the abortion-cams Web sites actually claim that the women in the photos are getting abortions, they could be sued for libel. And, as reader Bonnie Resnick points out, many places of course do both abortions and other medical procedures. The people in the photos could therefore be (1) women who are getting abortions, (2) friends of those women, who are escorting them, (3) pro-choice demonstrators, (4) clinic employees, (5) patients who are getting other medical services performed at the clinics, or for that matter (6) decoys.

     This is indeed a very good reason -- both legal and moral -- for the abortion-cams people not to say "This person is getting an abortion," which could indeed be libelous; and from what I've seen, they generally do not make such assertions. On the other hand, the sites could and do safely say that this is a photograph of a person who is going into the abortion clinic (quite accurate).

     Bonnie Resnick also asks why the abortion-cams people put up the pictures in the first place, given the likely high number of false negatives (e.g., women going in for pap smears). Some of the pictures are of people that the photographers believe they have identified as clinic employees or pro-choice activists. But as to other pictures of likely patients and other visitors, I take it that the abortion-cams people don't see them as false negatives at all: I assume that they see anyone who goes into the clinics as essentially complicit, in some measure, in the wrong. I don't share this view, but I think I understand it; and this sort of approach is not that uncommon in various ideological movements, not just among anti-abortion extremists.

 
[Eugene Volokh, 11:48 AM]
WORDS TO LIVE BY: "Never confuse things with other things." Unless, of course, the other things are really like the first things, but then it isn't confusion, is it? If you just keep this basic principle in mind, you won't go wrong.

 
[Eugene Volokh, 11:36 AM]
OVERPOPULATION: Driving to work this morning, I saw a bumper sticker complaining about overpopulation; and this made me think -- what is overpopulation? It sounds like it's more population than there should be, but what should the benchmark be?

     (Warning: The following is a layman's speculation; on legal matters, I tend to have a professional perspective -- especially as to constitutional law and firearms regulation policy, where I've done quite a bit of research -- but here I'm just speculating based on my general knowledge and intuitions.)

     I don't have an answer to this question, but I do have a loose set of conjectures that relate to it, and I thought I'd set them forth:

     1. As the world has gotten more populous, it has gotten cleaner and more abundant. If overpopulation is supposed to be "more population than the resources can handle," or "so much population that the place gets too dirty," then this hasn't happened yet, and shows little sign of happening.

     How can I say that the world has gotten cleaner, given all the smog, toxic waste, etc.? Well, there's certainly pollution out there, which I would define as material in the environment that can cause disease. And there's more chemical pollution, I suspect, than there was, say, 300 years ago.

     But there's vastly less biological pollution. For much of human history, the species was literally plagued with a vast range of material in the environment -- bacteria and viruses -- that can cause disease. Some of this was an artifact of people living next to each other, but it happened with population densities much lower than we see today. And biological pollution has generally proven to be much more lethal than chemical pollution.

     On aggregate, then, the world is much cleaner today than at any time in at least thousands of years, as defined in what I think is the soundest way: There is far less disease caused by the "unclean" stuff in the environment than there ever has been.

     What about resources? Haven't we chopped down forests, used oil, and otherwise consumed nonrenewable resources?

     Well, the average human today -- certainly the average American, but I believe also the average human -- has far more resources actually available to him than the average person 5000 years ago. True, there were more trees per person then, more wild game per person, and more oil per person. But that material -- whether food, fuel, or effective shelter -- was generally much harder for people to get than similar material today. The world is thus in practice much more abundant today and much cleaner today than it was when it was much less lightly populated.

     2. Of course, the reason is technology -- technology has made the world cleaner and has given us access to more resources. Some of this technology itself caused population growth: As medicine and nutrition improves, more children survive to have children of their own. (Eventually, as medical technology and the standard of living improves still further, this trend levels off or even reverses, as we're seeing in many rich countries today, but at first technology does lead to more population.)

     But higher population may itself cause greater technological development. Why is this? For a variety of reasons, but the simplest is that technological development is at least partly related to the population of technologists -- scientists, inventors, engineers, businesspeople -- and the intellectual and productive economies of scale that this population can create.

     Obviously there are other factors besides population involved, or else China and India would be the wealthiest and most developed countries in the world today. The free market and personal freedom are the most obvious such factors. But I suspect that substantial population matters. No matter how economically free Luxembourg becomes, it will be hard for it to have the same level of innovation as the United States or even England.

     This is because many innovations, even if created by just one person, can quickly spread to benefit the whole society. To take an extraordinarily oversimplified model, say that 1 in 10 million people will produce a scientific or medical breakthrough in his lifetime -- because of a combination of raw intelligence, personality, and blind luck. Then a society of 100 million people will see 10 such breakthroughs in the span of a human life, but a society of 1 billion people will see 100 such breakthroughs.

     We are used to focusing on per-capita data rather than absolute data. If someone tells us that a country had a $100 billion GNP in one year, we'd naturally ask "but for how many people?" If the country had a population of 1 million, it would be very prosperous; if it had a population of 1 billion, it would be very poor.

     But because innovation can generally (subject of course to various delays and requirements) be copied in a way that will be used by lots of other people, technological progress is connected to the absolute level of innovation in a society as well as to the per-capita rate. If 1 in 10 million people make $1 billion, then even if you spread all that money among everyone in society (which I wouldn't advise), that'll just be $100 per person, no matter how large the society is. But since inventions can be reproduced, the same zero-sum logic doesn't apply to them, and a large society with more inventions (even at the same per-person rate of invention) will end up being more prosperous than a smaller society with fewer.

Now I use the term "society" rather than "nation," because the variable, in a globalized world, isn't the size of some particular country but rather the size of the community in which the political and economic system is conducive to innovation, trade, and production. The U.S., Europe, Japan, and other countries can each build on each others' innovations. But my sense is that if they had a population that was 10% their population today, the result would be a much lower rate of innovation than today.

     And my guess is that the great innovations of the last two centuries -- innovations that have dramatically increased the practical cleanness and resource-richness of the world -- would have happened far more slowly if the population of the relatively free portions of the world was 10% of what it was.

     3. What about the future? My sense is that the future population will be little dictated either by my speculations or the speculations of the lower-population forces. It will be mostly a function of wealth and women's level of education.

     Nonetheless, to the extent that we can guide this, whether through immigration policy or whatever else, our rough goal should be to have higher population in those countries that are freer, more innovative, and more productive. Curiously, these also tend to be the countries which under an intuitive definition of overpopulation are not overpopulated -- in part because they generally look fairly rich and clean. (I recognize that there will be some relatively minor problems caused by the particular concentration of population -- such as traffic delays [hey, I live in L.A.!] -- and by the pace of growth; and it certainly matters whether, for instance, any large immigrant influxes are more or less screened for likely productive, or are more or less likely to integrate into the local culture. But I will set aside these important points for now.)

     Some environmentalists argue that more population in the rich countries is in fact the problem, because each resident of a rich country consumes more resources than each resident of a poor county -- so the more populous the rich countries, the more resources are consumed.

     But this is precisely where my thesis comes in. Each resident of a rich country is also much more likely to be the person who invents a new pollution-control technology or a new device for finding more resources or using them more efficiently -- or if he isn't the inventor, he'll be more likely to be the engineer or entrepreneur who helps implement this.

     How many great anti-pollution inventions, medical discoveries, or new energy sources have been discovered, implemented, and broadly distributed by Chinese, Indians, Indonesians, and Brazilians (to name four of the five most populous countries in the world) working in their own country? How many were discovered by Americans (to name the fifth) -- or for that matter by former residents of the first four countries living in America?

     Residents of rich countries are more likely to value environmental quality and health (simply because these goods, important as they are to everyone, become relatively more important to people who have enough to eat and a roof over their heads). They also live in political and economic systems that can help them innovate in ways that satisfy these desires -- and that can then spread those innovations throughout the society and the world. If anything, we need more people who live under these systems -- not fewer.

UPDATE: Readers Jeff Kahane and Josh Chafetz point out that Julian Simon had made these same points decades before me; and of course I freely acknowledge that nothing I say above is supposed to be remotely original. I'll settle for its being accurate!

 
[Eugene Volokh, 1:58 PM]
ANOTHER FALSE DICHOTOMY: The Comedian sends a very nice note reasoning as follows:

Did you see the CNN article last week about the holes in security at airports? Summary: "Security screeners at 32 U.S. airports failed to detect most knives and simulated explosives -- and one of every three guns -- that federal investigators tried to smuggle past security checkpoints in tests after the September 11 attacks, a government official said Monday."

I still do not see how focusing on implements, and not terrorists, is making anyone safer.

     I'm afraid that this too rests on a false dichotomy (much like the "is it hate speech or is it free speech?" question mentioned a few days ago). I don't think that The Establishment is suggesting that the choice must be implements or terrorists. Everyone agrees that we need to fight terrorists -- the question is whether also trying to block certain implements will help fight terrorists.

     I think the answer is yes, even if the attempt to block the implements is imperfect. I agree entirely that security screening should be strengthened. But even the existing screening is valuable:

1. the 9/11 murderers certainly were worried enough about the gun screening that they instead used box-cutters, which were not at the time prohibited (and which would have been easier to fight back against, if passengers knew of the plane-bomb risk),



2. no-one has ever successfully smuggled a gun past U.S. security (except for the incident involving the airline employee at a time when airline employees weren't screened)and then used it for hijacking or crashing the plane, and



3. even blocking two out of every three guns, while not nearly as good a record as we'd like, is much better than nothing, since it means that many would-be gun-wielding hijackers will be deterred, and some will be caught -- and once they're caught we might find out a good deal about their confederates.

     People are quite right to identify the problems with our security screening system, and to demand that it operate better. But let's not lose sight of the benefits that it does, with all its flaws, provide; and let's not fall prey to false dichotomies.

 
[Eugene Volokh, 1:06 PM]
WHEN IN DOUBT, SHOUT "MCCARTHYISM": Here's what Prof. Bellesiles, in an article in The Guardian, has to say about the National Endowment for Humanities' decision to disassociated itself from his Newberry Library fellowship:

The decision by his funders to remove their name from his fellowship, he added, reawakened the ghosts of McCarthyism. "It sends a message: that there are some topics which perhaps should not be addressed . . . This is a dangerous environment to talk about firearms. I think that's rather obvious now."

A few thoughts:

1. The NEH's decision sends a message that perhaps people should address topics accurately, rather than in books filled with error after error -- and then defended using claims that themselves prove to be quite mistaken.



2. The NEH's decision to remove its name from the fellowship had no tangible cost to Bellesiles: He didn't lose the fellowship, or any money from the fellowship. The real harm to Bellesiles is that the NEH's decision publicly highlighted that there have been very serious and well-supported charges lodged against Bellesiles' research. And publicly highlighting serious and well-supported charges of academic misconduct strikes me as quite a worthwhile step.



3. Refresh my recollection, please: Did Joe McCarthy really limit himself to (1) publicizing substantial charges of academic misconduct, charges that are backed by the views of many reputable scholars, and (2) asking that his name be withdrawn from fellowships awarded to people who engaged in such misconduct? Somehow I think that if this were so, the term "McCarthyism" would have a very different connotation than it does today.

(Thanks to Instapundit for the link to the Guardian article.)

 
[Eugene Volokh, 12:10 PM]
A GOOD IDEA TAKEN TOO FAR: I generally support letting law-abiding adults carry concealed guns in most public places. My general view (necessarily oversimplified here) is that the criminals will be armed whether it's legal or not -- the question is whether the good guys should unilaterally disarm. And the experience in the states that have allowed this (up to over 30 now, from under 10 in the mid-1980s) is that people who have concealed-carry licenses almost never abuse them.

     But one has to know when even a good idea is being taken too far -- and airplanes are one such place, notwithstanding arguments by some people (e.g., Armed & Dangerous, and quite a few others who've said this since September 11) in favor of arming passengers. In airplanes, we really can disarm the bad guys, rather than just unilaterally disarm ourselves. (To my knowledge, airport gun screening has in fact done a good job in recent decades -- no-one has ever hijacked or downed a plane with a gun in the U.S., except for one guy who did so about 15 years ago [as I recall], and he got in because he was an airline employee, and such employees weren't screened at the time. True, there's always the chance that someone can smuggle a gun on board -- but that's a very risky endeavor for a terrorist, and it's harder still for several people to do so. That's why the 9/11 murderers used box-cutters.) Given this, such disarmament of the passengers -- arming pilots is a different question -- is the right solution.

     The problem with arming passengers isn't that one bullet will cause some sort of explosive decompression; to my knowledge, based on discussions that I've had with some relatively knowledgeable people in recent months, that just wouldn't happen. Rather, the problem is the obvious one: If good guys can get on board with guns, why then the bad guys can do the same. Ten terrorists can board the plane with their guns, and highjack it pretty effectively; or one loony or suicidal fanatic can board the plane with his gun, and kill a lot of people and perhaps even bring down the entire plane.

     Ah, but won't armed passengers stop them? Maybe, but it's quite unlikely. First, few law-abiding passengers will go armed; in states that allow law-abiding adults to carry concealed, only 1 to 4% of all people get licenses, and I suspect that even fewer people actually are carrying lawfully at any particular time.

     Second, the terrorists will have many advantages, in addition to the possible advantage of numbers. Some of the most prominent ones: (1) Surprise -- they'll have the draw on people. (2) Knowledge of who their fellow armed bad guys are. (3) Ruthlessness, since they won't care what bystanders they'll hit in a shoot-out. (4) Quite possibly, willingness to die; some gun-carrying passengers may be reluctant to shoot at an armed hijacker when they know that an unidentified confederate will then quickly kill them.

     Third, if the terrorists really want to just destroy the plane, they may well be able to shoot the pilots before they're taken down by the hypothetical shooters.

     Ah, the argument goes, but at least then the passengers could keep the hijackers from using the plane as a bomb. But for that to happen, you don't need guns, especially when the hijackers don't have guns themselves. All you need is the knowledge that any hijacker who's trying to get into the cockpit is likely going to try to kill everyone on the plane and many people on the ground.

     Flight 93 showed this; and reinforced doors, armed pilots, and various other possible security features can stop the plane-bomb problem just fine. If you really do think that we need to help passengers defend themselves, the plane, and those on the ground, you might consider putting a billy club in every seat pocket: Billy clubs are democratic weapons, with which the law-abiding majority can generally take down the billy-club/box-cutter-wielding bad guys in the minority. Arming both the bad guys and the good guys with billy clubs isn't that dangerous. Allowing both the bad guys and the good guys (which will only be a small fraction of the good guys) to be armed with guns is dangerous.

     I say all this not because there's any real possibility that the arm-the-passengers proposal will be implemented. Rather, this proposal is a helpful illustration that policies that work well in one area (armed citizens on the streets) may not work well in another (armed citizens on airplanes), just as the policy of barring guns may work well on an airplanes but not on streets. Different situations often call for different measures -- and even if we have a strong presumption that people should be empowered with the tools needed for self-defense, this presumption can sometimes be rebutted, especially when there are other ways of better protecting people.

 
[Eugene Volokh, 11:38 AM]
"DOES AL QAEDA HAVE ANTHRAX? BETTER ASSUME SO": Another excellent piece by Jonathan Rauch. Rauch is a very careful and thoughtful guy; his thoughts on this are especially worth considering.

 
[Eugene Volokh, 10:48 AM]
DELIGHTED TO SEE from N.Z. Bear's list that this blog has been getting a lot of links. Here's a summary of Bear's method.

UPDATE: There's also an intriguing Map of the Blogosphere (as you might gather, focused on link relationships and not geographical ones).

 
[Eugene Volokh, 10:21 AM]
THE GREAT BLACKMAIL PUZZLE: Reader Thomas Asch, in an exchange about the abortion-cams question, raises the following question:

Consider the following hypothetical.

I decide to set up a business. I take out ads across the country, "Is your boss or neighbor cheating on his wife? Do you know something about someone he/she is embarrassed about? Big $$$ paid for any information. Call now." I sort out the leads and engage private investigators to verify the information on my potential customers with the best credit reports. Then, one of my sales representatives calls on the person and offers to sell my company's free speech rights to my target customer for an affordable monthly payment.

Am I an extortionist or the proprietor of a constitutionally protected business?

This, my friends, is the Great Blackmail Puzzle, which pops up over and over again; it really is quite a theoretically troubling issue, and while practically it doesn't bother the legal system much, sometimes it does end up raising hard practical problems.

     Here's the puzzle:

1. I am generally perfectly free to publish embarrassing information about you -- in fact, I generally have the constitutional right to do so. Likewise, I am free to keep quiet about it.



2. I am generally perfectly free to ask you for money in exchange for my doing something (here, keeping quiet) that I have no preexisting legal obligation to do. (This distinguishes classic extortion, where I ask you for $10,000 not to burn down your store: Because I have a legal obligation not to burn down your store, it's easy to explain why extortionate threats to burn down the store would be punishable. I will use "blackmail" to mean just threats to reveal information, not threats to commit illegal violence or property destruction.)



3. But if I ask you for money in exchange for my not revealing embarrassing information about you (and recall that I have no preexisting legal obligation to keep quiet), then that's a crime.

     What's the explanation? Legal scholars have debated this for decades, and to my knowledge have not come up with a perfectly satisfactory answer.

     Now as I mentioned, the legal system often happily ignores conundrums such as this. Blackmail is a crime, and that's that (and incidentally I agree on pragmatic grounds that it should be a crime, though I myself don't have a good answer to the puzzle).

     But sometimes this does raise some significant practical difficulties. Here are a few examples:

1. Say that during the Clinton-Lewinsky scandal, a publisher tells a Congressman "If you vote to impeach Clinton, I will publish information about your own sexual indiscretion." That may well be blackmail (many blackmail laws cover attempts to get people to do things as well as just attempts to get money).
   
   But if the publisher starts a series of articles exposing the sexual indiscretions of Congressmen who have stated their intention to vote for impeachment, that's perfectly legal journalism -- even though the implication is clearly "If you vote against impeachment, we won't run this article about you." Likewise if the publisher asks the public for information that might prove to be fodder for such articles. (During the scandal, Larry Flynt's behavior was fairly similar to that in this hypothetical.)




2. My saying "If you don't pay me $X, I'll tell people about your sexual indiscretions" is generally clearly blackmail.
   
   But what if I tell you "I'm about to sue you for a certain behavior, unless you pay me $X to settle the claim," and it's clear that if I do sue you, your sexual indiscretions will come out, either because they're the basis of the suit or because they are somehow relevant to it and will emerge in discovery? This is common and generally legal litigation behavior, subject only to very loose constraints.



3. Some things that clearly fit the "If you don't pay me $X, I'll tell people about what you did" mold should pretty clearly be legal. In the words of one court:

   For example, the purchaser of an allegedly defective product may threaten to complain to a consumer protection agency or to bring suit in a public forum if the manufacturer does not make good on its warranty. Or she may threaten to enlist the aid of a television "on-the-side-of-the-consumer" program. Or a private club may threaten to post a list of the club members who have not yet paid their dues.

   The uniting thread seems to be that it's OK to use the threat of publicity to get what is rightfully owed you -- but the boundaries of this principle end up being themselves quite uncertain. Factoid: Autumn Jackson, who allegedly tried to blackmail Bill Cosby several years ago by threatening to reveal her having an out-of-wedlock child with him, had her conviction reversed because the judge didn't instruct the jury about this principle; the above quote is from that case, United States v. Jackson (2nd Cir. 1999).

     Finally -- as a result of this theoretical uncertainty, and the practical uncertainty that it sometimes breeds -- the principle that blackmail may be outlawed has not much expanded into areas that may at first seem to be analogous. "This is quite similar to blackmail, and should therefore be treated just like blackmail is" is an argument that courts are pretty cautious about endorsing, precisely because they realize that quite a few things that are quite similar to blackmail must remain legal, and may even be constitutionally protected.

     So to return to my correspondent's question, I realize that publishing pictures of people who visit abortion clinics is similar to implicitly saying "If you visit a clinic, then I will reveal this embarrassing information about you." But the same may be said about people publishing the names of blacks who shop at white-owned stores during an NAACP boycott of those stores -- but NAACP v. Claiborne Hardware (1982) held that such publication is constitutionally protected. And the same may be said about newspapers publishing embarrassing things about politicians who vote for impeaching the President.

     Nonetheless, despite this similarity to blackmail, I'm pretty sure that the speech in all these cases would be protected. I can't fully explain the theoretical basis for distinguishing these cases from blackmail -- but that's just a side effect of the as-yet-unsolved state of the Great Blackmail Puzzle.