[Eugene Volokh, 8:47 AM]
SAVAGE LOVE AND WAR: Dan Savage, the author of Savage Love (a rather explicit sex advice column), and most certainly not a conservative, has an excellent -- nearly Lileks-grade -- article powerfully urging the Left to abandon pacifism and embrace just war, both the past one against the Taliban and the future one against Iraq.

     An absolutely first-rate piece; as with many opinion pieces, the basic points aren't new (Andrew Sullivan, Christopher Hitchens, and come to think of it George Orwell have done it before), but it's presented very well, and to an audience that really needs to hear it:

Why revisit these issues now? Why bring all this up when we should be celebrating our first Independence Day since the September 11 attacks? Because we're about to go to war again--hello, Saddam!--and it would be nice if the left refrained from sticking its collective head up its collective ass this time.

Spot-on. Thanks to Andrew Sullivan for the link.

 
[Eugene Volokh, 3:44 PM]
n GUILTY MEN: Jonah Goldberg's column on cliches is much worth a read (thanks to Occam's Toothbrush for pointing me to it), but it's also worth a mention to my brother Sasha's definitive article on the subject of "better that n guilty men go free than one innocent man [suffer some punishment]" -- it came out in the University of Pennsylvania Law Review in 1997 (before he event went to law school!), it's up on my Web site, and it's a hoot.

 
[Eugene Volokh, 2:14 PM]
HAMDI (ONE OF THE AMERICAN CITIZENS DETAINED AS AN ENEMY COMBATANT): The U.S. Court of Appeals for the Fourth Circuit decided Hamdi v. Rumsfeld, which involved Yaser Esam Hamdi, a U.S. citizen detained in Afghanistan as an enemy combatant. The basic holding was that the lower court was premature in allowing Hamdi an unsupervised meeting with a public defender, and that the lower court should hold further hearings to determine -- with considerable deference to the government's judgment -- whether Hamdi was indeed an enemy combatant. (Sending the case back to the lower court for further proceedings is called a "remand.").

     I'm not sure what to think about this, in part because it's midnight in Zurich and I've just had a fantastic meal with lots of food and wine, and in part because it really is a tough question that is not fully within my core area of expertise. But as I was reading this, I thought I'd edit the case down to its essentials, and pass it along to you so you could read it for yourself.

     I have freely deleted most citations, added paragraph breaks, and set what struck me as the most important few sentences in bold. I've tried to mark all other modifications with ellipses or brackets, but I'm sure I've made some mistakes. I may also have misjudged which were the most important parts of the case, always a problem when people edit down court opinions for conciseness and readability. If you want the most reliable version, and have time to go through a few procedural complexities, read the Circuit opinion -- it's not horribly long or technical. In the meantime, here's my quick edit:

     Esam Fouad Hamdi has filed a petition for a writ of habeas corpus as next friend of his son, Yaser Esam Hamdi, a detainee at the Norfolk Naval Station Brig who was captured as an alleged enemy combatant during ongoing military operations in Afghanistan. . . .

     During [the] ongoing military operation [in Afghanistan], thousands of alleged enemy combatants have been captured by American and allied forces including, as the government contends, Hamdi. Hamdi was initially transferred to Camp X-Ray at the Naval Base in Guantanamo Bay, Cuba. After it came to light that he was born in Louisiana and may not have renounced his American citizenship, Hamdi was brought to the Norfolk Naval Station Brig. His petition claims he was taken into custody in Afghanistan in the fall of 2001, transferred to Guantanamo Bay in January 2002, and transferred again to Norfolk in April 2002. Believing that Hamdi's detention is necessary for intelligence gathering efforts, the United States has determined that Hamdi should continue to be detained as an enemy combatant in accordance with the laws and customs of war. . . .

     On June 11, . . . [t]he [trial] court . . . appointed the Public Defender as counsel for the detainee based on [Hamdi's] father's affidavit stating that neither he nor his son was able to pay for an attorney. . . . Further, the court again ordered the government to allow the Defender unmonitored access to Hamdi [because of fundamental justice provided under the Constitution“]. The court specified that this meeting was to be "private between Hamdi, the attorney, and the interpreter, without military personnel present, and without any listening or recording devices of any kind being employed in any way." And the court ordered that the meeting be allowed to take place by June 14, three days before the government's response was due. Finally, the court stayed its order to allow the government an opportunity to appeal. . . .

     [T]he Supreme Court has shown great deference to the political branches when called upon to decide cases implicating sensitive matters of foreign policy, national security, or military affairs. This deference extends to military designations of individuals as enemy combatants in times of active hostilities, as well as to their detention after capture on the field of battle. . . . As far back as the Civil War, the Supreme Court deferred to the President's determination that those in rebellion had the status of belligerents. See The Prize Cases, 67 U.S. (2 Black) at 670. And in World War II, the Court stated in no uncertain terms that the President's wartime detention decisions are to be accorded great deference from the courts. Ex parte Quirin, 317 U.S. 1, 25 (1942). . . .

     The district court's June 11 order directed the United States to provide the Public Defender unmonitored access to Hamdi. . . . In the face of ongoing hostilities, the district court issued an order that failed to address the many serious questions raised by Hamdi's case.

     For example, it has been the government's contention that Hamdi is an “enemy combatant” and as such “may be detained at least for the duration of the hostilities.” The government has asserted that “enemy combatants who are captured and detained on the battlefield in a foreign land” have “no general right under the laws and customs of war, or the Constitution . . . to meet with counsel concerning their detention, much less to meet with counsel in private, without military authorities present.” The Public Defender for his part has contended that “no evidence has been submitted to support” Hamdi's status as an enemy combatant and that “unlike aliens located outside the United States, Petitioner Hamdi [as an American citizen detained in the United States] is entitled to constitutional protections” including unmonitored access to counsel.

     The district court's June 11 order purported to resolve these and many other questions without proper benefit of briefing and argument. Indeed the court directed that counsel have unmonitored access to Hamdi three days before the government's response was even due. There is little indication in the order (or elsewhere in the record for that matter) that the court gave proper weight to national security concerns. The peremptory nature of the proceedings stands in contrast to the significance of the issues before the court. The June 11 order does not consider what effect petitioner's unmonitored access to counsel might have upon the government's ongoing gathering of intelligence. The order does not ask to what extent federal courts are permitted to review military judgments of combatant status. Indeed, the order does not mention the term enemy combatant at all.

     Instead, the June 11 order apparently assumes (1) that Hamdi is not an enemy combatant or (2) even if he might be such a person, he is nonetheless entitled not only to counsel but to immediate and unmonitored access thereto. Either ruling has sweeping implications for the posture of the judicial branch during a time of international conflict, and neither may rest on a procedurally flawed foundation that denied both petitioners and the government a chance to properly present their arguments, or to lay even a modest foundation for meaningful appellate review. The district court's order must be reversed and remanded for further proceedings.

     The government urges us not only to reverse and remand the June 11 order, but in the alternative to reach further and dismiss the instant petition in its entirety. In its brief before this court, the government asserts that “given the constitutionally limited role of the courts in reviewing military decisions, courts may not second-guess the military's determination that an individual is an enemy combatant and should be detained as such.” The government thus submits that we may not review at all its designation of an American citizen as an enemy combatant -- that its determinations on this score are the first and final word.

     Any dismissal of the petition at this point would be as premature as the district court's June 11 order. In dismissing, we ourselves would be summarily embracing a sweeping proposition -- namely that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so. Given the interlocutory nature of this appeal, a remand rather than an outright dismissal is appropriate.

     If dismissal is thus not appropriate, deference to the political branches certainly is. It should be clear that circumspection is required if the judiciary is to maintain its proper posture of restraint. The federal courts have many strengths, but the conduct of combat operations has been left to others. .

     The executive is best prepared to exercise the military judgment attending the capture of alleged combatants. The political branches are best positioned to comprehend this global war in its full context and it is the President who has been charged to use force against those “nations, organizations, or persons he determines” were responsible for the September 11 terrorist attacks.

     The unconventional aspects of the present struggle do not make its stakes any less grave. Accordingly, any judicial inquiry into Hamdi's status as an alleged enemy combatant in Afghanistan must reflect a recognition that government has no more profound responsibility than the protection of Americans, both military and civilian, against additional unprovoked attack.

      The standards and procedures that should govern this case on remand are not for us to resolve in the first instance. It has long been established that if Hamdi is indeed an “enemy combatant” who was captured during hostilities in Afghanistan, the government's present detention of him is a lawful one. See, e.g., Quirin, 317 U.S. at 31, 37 (holding that both lawful and unlawful combatants, regardless of citizenship, “are subject to capture and detention as prisoners of war by opposing military forces”); Duncan v. Kahanamoku, 327 U.S. 304, 313-14 (1946) (same); In re Territo, 156 F.2d 142, 145 (9th Cir. 1946) (same). Separation of powers principles must, moreover, shape the standard for reviewing the government's designation of Hamdi as an enemy combatant. Any standard of inquiry must not present a risk of saddling military decision-making with the panoply of encumbrances associated with civil litigation.

     As for procedures, we cannot blueprint them on this appeal. The government has sought to file as an ex parte, supplemental attachment to its brief before this court “a sealed declaration discussing the military's determination to detain petitioner Hamdi as an enemy combatant.” The government explains that “[t]his declaration is not a matter of record, as it was not proffered in the district court because the proceedings there did not reach the point where the merits of the habeas petition were reached.” .

     The government further states that the declaration “specifically delineates the manner in which the military assesses and screens enemy combatants to determine who among them should be brought under Department of Defense control,” and “describes how the military determined that petitioner Hamdi fit the eligibility requirements applied to enemy combatants for detention.” This declaration is factual in nature. As such, it should come first before the district court, not the court of appeals.

     The development of facts may pose special hazards of judicial involvement in military decision-making that argument of questions of pure law may not. For example, allowing alleged combatants to call American commanders to account in federal courtrooms would stand the warmaking powers of Articles I and II on their heads. Finally, the role that counsel should or should not play in resolving questions of law or fact is a matter of immense importance.

     Upon remand, the district court must consider the most cautious procedures first, conscious of the prospect that the least drastic procedures may promptly resolve Hamdi's case and make more intrusive measures unnecessary. Our Constitution's commitment of the conduct of war to the political branches of American government requires the court's respect at every step. Because the district court appointed counsel and ordered access to the detainee without adequately considering the implications of its actions and before allowing the United States even to respond, we reverse the court's June 11 order mandating access to counsel and remand the case for proceedings consistent with this opinion.

NOTE: I will probably be out of e-mail contact most of tomorrow, so any glitches will likely remain unfixed; sorry about that.

 
[Eugene Volokh, 10:08 AM]
OK, COULDN'T HELP MYSELF: I took a moment to briefly skim Bellesiles' piece -- I'll read it in more detail later -- and found this item:

[I]n the eighteenth century rights were held collectively, not individually. If you were a white male Protestant property owner, then you enjoyed substantial liberty. In most states, however, there were gradations of rights descending from that pinnacle. To the majority of Americans in the 1790s, the Bill of Rights was an abstract and irrelevant document that only marked how far they stood below full citizenship. It was a mockery of the very idea of rights. Anyone arguing today that we should adhere to that original understanding of rights would, I hope, be dismissed as grotesquely out of touch with reality.

I've seen this argument by Bellesiles earlier, in an exchange with Joyce Malcolm regarding her book the right to bear arms -- and the argument is based on a non sequitur. Sure, blacks and Indians were denied many constitutional rights, and Catholics were denied some. (Non-property-owners, to my knowledge, generally had the same federal constitutional rights as property owners, at least on paper, and to my knowledge all the state constitutional rights except voting and officeholding. I'm not sure about women, but I suspect that they had most of the same federal constitutional rights, such as rights as criminal defendants and the like, as men, though they were denied various other rights.)

     But how does that make the rights collective? It may be bad that not all people were seen as possessing as various rights, but it's perfectly consistent with the rights being individual -- they're just individual rights that not all people are recognized as possessing.

     Just to give the most obvious example, surely the right not be compelled to testify against yourself, or the right to confront the witnesses against you, is an individual right; it can't possibly be collective. (Of course, it might in some measure be aimed at broader goals than just individual safety, such as deterrence against government tyranny -- but it's still a right that's possessed by individuals, and that can be asserted by them.) But Bellesiles' theory applies to the whole Bill of Rights -- and thus by his logic the rights of criminal defendants were also somehow "collective" rights. Doesn't make much sense to me.

     Now I realize that compared to making vast factual errors in one's work -- the charge that has been levied, in my estimation quite accurately, with regard to his Arming America -- mere non sequiturs seem like pecadillos. But they're telling as well, in their own way.

 
[Eugene Volokh, 9:49 AM]
THOUGHTS ON A NEW ESSAY BY MICHAEL BELLESILES, from John Rosenberg. Looking forward to reading Bellesiles' piece myself when I return, but I've found Rosenberg's analyses to be generally very sound.

 
[Eugene Volokh, 9:12 AM]
ARMING FLIGHT ATTENDANTS: Jeff Cooper is correct in his criticism of proposals to arm flight attendants. Arming pilots, I think, is probably a pretty good idea -- not so for flight attendants, for the reasons Cooper mentions. (Link via InstaPundit.

 
[Eugene Volokh, 9:03 AM]
MORE ON THE RIGHT TO CHOOSE WHOM TO LIVE WITH: Two readers, Randall Parker and Ken Hirsch, e-mailed me a cite to a 1996 Wisconsin Court of Appeals case, which denied a person's right to choose whom to share a four-bedroom house with. (The tenant there discriminated against a lesbian woman.) Seems clearly unconstitutional to me: Whatever the government's right to constrain our freedom of association in large business ventures or in restaurants that are open to the public, surely the "right of intimate association" that the Supreme Court has recognized (see Roberts v. U.S. Jaycees) must include the right to choose whom to share a home with -- and even setting the constitution aside, any law that tells people that they must share their homes with someone they dislike, for whatever reason, is a gross governmental imposition on our rightful liberties. Yet another area where antidiscrimination law has gone way too far.

     The Wisconsin court's response to this was that the right of intimate association doesn't apply when people "rent[] housing for profit," but that strikes me as quite misguided: Your choice of whom to share your home with can't vanish just because it's economic necessity, rather than love or friendship, that animates your selection. Financial conditions might make it necessary for people to choose strangers as roommates -- but that doesn't mean that every shared apartment should be treated as a hotel.

     By the way, would the antidiscrimination zealots make it illegal for prostitutes, in those places where prostitution is legal (and I think prostitution should be legal) to discriminate -- based on race, age, height, weight, or what have you -- in their choice of clients? What about marriage: If someone is marrying for money rather than love, do they have to consider all offers equally? No, wait, I don't want to give anyone any ideas . . . .

 
[Eugene Volokh, 8:43 AM]
JUNK SCIENCE IN THE NEW YORK TIMES, ABOUT ARMING PILOTS: Howard Fienberg of www.stats.org points out some junk science in today's New York Times:

In nearly four dozen interviews in seven major airports, opponents of the idea outnumbered supporters by a ratio of roughly 3 to 2, and expressed deep concern about the consequences of using a gun on an airplane. . . . The idea that pilots might also take on crucial security duties struck some travelers today as an extreme response, perhaps foolhardy.

     What exactly can a survey of 45 or so people -- who I highly doubt were chosen randomly -- prove?

     Fienberg also passes along the results of a Fox News/Opinion Dynamics poll that suggests that public attitudes, at least when the poll was taken in early June, were quite different from what the Times's informal survey suggests:

(June 4-5, 2002. N=900 registered voters nationwide. MoE ± 3)
"Do you approve or disapprove of airline pilots being armed?"
Approve 68%
Disapprove 22%
Not sure 10%

 
[Eugene Volokh, 4:43 AM]
THE DECISION PUNISHING A PERSON FOR STATING HER PREFERENCES IN A ROOMMATE: Someone passed along to me a file containing the text of the DeSantis decision -- the one where the California Fair Employment & Housing Commission punished a woman for stating her preferences in a roommate -- and I've put in on the Web, for those who want to read up on the matter further. It really does seem to be quite unconstitutional to me.

 
[Eugene Volokh, 9:26 AM]
SWITZERLAND: I'm at a cyberspace law and policy conference in Zurich; it's sponsored by Swiss Re, a leading reinsurance company, and it's at their absolutely gorgeous conference center right near the lake. One of the perks of my job is being able to go to swell places like this. Many top people, such as Hal Varian, Larry Lessig, and Pam Samuelson are here; the discussions are very interesting and substantive. And, best of all, my little Ambien pills (various people, including my doctor, have highly recommended them) gave me about 6 hours of solid sleep on the plane, with no hangover. Ah, the wonders of modern technology!

 
[Eugene Volokh, 6:40 AM]
TELLING THE TRUTH: A reader writes:

If there's nothing unconstitutional about the government telling the truth about people, then we have no privacy on any government matter. If I ask the government to divulge my neighbor's criminal records, tax records, etc., then the government should simply "tell the truth?" Or do you believe that this should only apply to criminal records?

Do you think this sort of law should apply to all criminals, or just sex offenders?

From what you've posted, It seems like the better sound-bite for your argument is: "Sex offenders should lose their rights to privacy."

     An interesting argument, but one that I think ultimately doesn't quite fly, in part because it seems to me to rest on an unsound vision of "privacy." A few specific thoughts:

1. I do not believe it is unconstitutional for the government to reveal our tax records and the like. In fact, property tax valuations are matters of public record, and there are decent reasons for that decision, having to do with making sure the tax assessors are treating people fairly. The contents of people's estates distributed at death are likewise often matters of public record, though richer people often tend to avoid this by using trusts rather than probate. Income tax records are kept confidential by statute, not by constitutional command. And I think it's right that the voters and their representatives make these judgments; I don't think there's a constitutional imperative that blocks one or another policy option here.



2. Even going beyond the constitutional to the moral, I strongly disagree that we have any sort of "right to privacy" in our criminal records. I can see why I would want to hide my criminal history from my neighbors, lovers, and business associates -- but where do I get a right to enlist the government in my trying to pull the wool over people's eyes? I realize that others disagree with me on this, and that some courts have even held that the media may be punished for revealing such truthful information -- a serious First Amendment violation, I have argued. But I never found the arguments for a "right to privacy," either vis-a-vis the media or the government, to be at all powerful as to criminal records.
   
   Likewise, I don't think that a Megan's Law for all violent crimes, or perhaps all crimes more generally, would pose moral or constitutional problems (except, as a moral matter, when applied to some behavior that I think shouldn't be substantively criminal in the first place). It's not clear to me that it would be wise as a policy matter, just as I see some policy problems with Megan's Laws as well. But on moral and constitutional grounds, it would be quite sound.



3. As I mentioned in my earlier post, even the best sound-bites are sometimes technically incomplete, and don't mention some exceptions to the general rule that are inapplicable in this specific case. Following up on this, I should mention that the Supreme Court suggested in Whalen v. Roe that "in some circumstances that duty [of government nondisclosure] arguably has its roots in the Constitution"; this was just a hint, not a decision, but lower courts have in a few situations found such a constitutional right. I'm not sure that this is correct -- but in any event, this right has been read in a very limited way, mostly focused on certain personal medical records and a few other categories of confidential information. Criminal records, which are records of public prosecutions, prosecutions that generally stem from behavior that has been found to be harmful to the public, and which are therefore of eminently legitimate concern to the public cannot, I think, fall within this narrow and tentative right.
   
   As a general matter, it really is perfectly constitutional for the government to tell the truth to people; and if there are occasional narrow exceptions, for instance for people's medical records (or perhaps even people's income tax records, though I stress again that I don't think the confidentiality there is constitutionally grounded), they most surely do not apply to records of people's past sex crimes, or past crimes more generally. "I want you to keep quiet about the fact that I molested a child" is not a desire that the Constitution commands the government to respect.

 
[Eugene Volokh, 7:18 AM]
MARK STEYN ON THE EL-AL AIRPORT SHOOTING: The argument isn't news to anyone, but Mark Steyn's "Whatever you do, don't call it a hate crime" is still much worth a read. (I've been having occasional trouble with that link; if you can't take it directly, go to the National Post site and search for Steyn.) Here's a particularly good paragraph:

But let's take the Feds at their word when they insist there's "no connection" between the LAX killer and any terrorist organizations. In its way, that's even more disturbing. Mr. Hadayet doesn't fit the poverty-breeds-desperation-breeds-resentment routine: He lived in a prosperous L.A. suburb and ran his own business. America had been good to him, at least when compared with the economic basket-case he emigrated from. On July 4th, he had plenty of reasons to get out the bunting and firecrackers. Instead, he went Jew-killing.

Osama and al-Qaeda are a small problem, which since September 11th has been managed about as well as can be expected. But the broader culture of "intolerance" in certain unassimilated communities is a potentially much bigger problem. You win wars not just by bombing but by argument, too: Churchill understood this; he characterized the enemy as evil, because they were and because it was important for the British people to understand this if they were to muster the will to see the war through. In Vietnam, the U.S. lost the rhetorical ground to Jane Fonda and co., and wound up losing the war, too. It's critical that the same thing does not happen here. The organizations that purport to represent Muslims in North America and Europe have their own excuses for turning a blind eye to the
torrent of hate from respectable sources within the Muslim world -- mosques, media, government. There's no reason why the FBI and other U.S. agencies should sign on to their fictions.

 
[Eugene Volokh, 6:07 AM]
WORKPLACE HARASSMENT LAW VS. THE FIRST AMENDMENT: Wayne State lawprof Kingsley Browne has a very nice op-ed in the Detroit News discussing First Amendment problems posed by workplace harassment law. (There's a case in the Michigan appellate system that raises these issues; Browne has written an excellent amicus brief in it.)

     I think "hostile environment harassment" law, which started in workplaces but is now of course spreading into educational institutions, places of public accommodation, and other contexts, is one of the broadest, vaguest, and most troubling sorts of speech restriction these days; I discuss this in more detail, with lots of examples from real events, at my Free Speech vs. Workplace Harassment Law Web site. I ultimately don't go quite as far in my criticisms as Browne does, but I think he's done some excellent work in the area -- his was the second law review article written on the subject, and mine was the third, so we've been working on this in parallel for a decade now.

 
[Eugene Volokh, 5:45 AM]
SHALLOW THOUGHTS ON DEEP LINKING: Michael Zorn e-mailed me a link to the Wired story on some people's attempts to block deep linking. He quite sensibly says: "The part of the issue that concerns me is the effect on bloggers. It's one of the '7 Pillars of Blogdom' to deep-link to a story (I'll have to come up with the other 6 later). And mainly because it's too darn hard to get from the front page to a page of interest, even if there is a search engine on the site."

     A few quick thoughts:

1. Deep-linking isn't a copyright infringement (at least unless the deep-link pops up in a frame, in which case the issue becomes more complex), and it shouldn't be.



2. In any event, if someone wants to stop others from deep-linking to them, there are pretty straightforward technical solutions that they can use to block it (and many do).



3. This sort of technical prohibition on deep-linking is annoying, and I suspect that it's counterproductive, at least unless you're running a for-pay site -- you want people to bring eyeballs to your site, and if you're advertising-supported, just pop the ads up on the linked-to page (as most people do) as well as the front page.



4. At the same time, there's a limit to how outraged we can get at such technical blocks. There's no law of God, man, or computer -- and even no injunction of good manners or loving kindness -- that says that your Web servers must serve up every Web page that anyone asks for. If your site wants to block my deep links to it, that annoys me, and might ultimately be counterproductive, but, hey, it's your site and your Web server, so you can do what you like.

     Note that any reactions to responses to this post will likely be long delayed, since I'm on the road and not answering my e-mail assiduously.

 
[Eugene Volokh, 3:32 PM]
TWO EUGENE VLADIMIROVITCHES FOR THE PRICE OF ONE: Eugene V. Kontorovich, who'll soon be teaching at George Mason University School of Law, and who has often written for the Wall Street Journal, will be on Fox News tonight from 7 to 8 pm Eastern time, talking about truth serums, the subject of his most recent Journal op-ed. This is the same broadcast on which I'll have my sentence or two about Megan's Law -- which means there will be two Eugene Vladimirovitches (or, to be super-authentic, Yevgeniy Vladimirovitches) on one TV program, doubtless an all-time first, at least in the U.S. (Instead of middle names, Russians use patronymics -- Vladimirovitch means "son of Vladimir," and both Kontorovich's and my fathers were named Vladimir.) I think there should be some plaque erected, or some commemorative day announced by Congress, or something.

 
[Eugene Volokh, 3:20 PM]
BLOG OF THE WEEK: Hugh Hewitt's producer just told me that my segment (which should start in a minute or so) is going to be the first in a "Blog of the Week" series, which sounds great. Excellent to see more evidence of the traditional media systematically cooperating with the new.

 
[Eugene Volokh, 3:08 PM]
RADIO: I should be on the Hugh Hewitt Show (in Los Angeles, it's on 870, KRLA-AM, but it's also apparently on afternoon drive-time in Phoenix, San Diego, Seattle, San Francisco, and Denver) this afternoon at 3:20 to 3:30 pm Pacific time, talking about this very blog, and about blogging more generally.

     Hewitt's show is very substantive: He's a lawprof himself, at Chapman University in Orange County, as well as a radio and TV commentator of long standing -- a guy who really cares about ideas (and generally quite sound politically, I think). I always enjoy being on it.

 
[Eugene Volokh, 9:52 AM]
ANTI-SEMITISM IN MICHIGAN CONGRESSIONAL RACE: According to an article in today's Detroit Free Press,

State Rep. William Callahan stirred up a firestorm of controversy Monday by pointing to U.S. Rep. Sander Levin's religious affiliation as a reason Levin should not be re-elected.

Callahan and Levin are running against each other in the Aug. 6 Democratic primary for a new district made up largely of Macomb County.

Callahan first told the Associated Press for a Monday story that Levin is too different from Macomb County residents to be a good representative for them. He specifically referred to Levin's liberal leanings and Jewish heritage.

"I mean, the man has never owned a Christmas tree. He's not a Christian. And I'm thinking, 'Jeez, how can he represent me then?' " Callahan was quoted as saying to the AP.

The state representative, who is from St. Clair Shores, later told the Free Press that he did make those comments, but that they were "grossly out of context." He apologized for the Christmas tree reference and said he never meant to cause offense.

At the same time, he maintained that he is better suited to representing the more conservative working people of Macomb than Levin . . . .

"I am a Catholic who is pro-life and of Irish, Polish and German descent," Callahan said. "He is very much pro-choice and Hebrew. Enough said." . . .

     This is really appalling, and I hope Michigan Democrats roundly condemn Callahan for this. At the same time, the sad fact is that this isn't much different from what people say in other contexts: This black area can only be effectively represented by a black Congressman; same for Hispanics and other groups. It's wrong there, but people turn a blind eye to that -- and if that's accepted, then why shouldn't Christians prefer to be represented by a Christian congressman?

     More broadly (and I realize that here I'm departing from the facts of this particular case, but I think the issues are nonetheless logically connected), this should remind us of the dangers of broader calls for racial proportionalism, and institutions that "look like America." If we really had, say, a Supreme Court that looks like America, then we wouldn't have 22% of the Justices being Jews (since Jews form only 2% of the population). If we had a UC Berekely that looks like California, we wouldn't have 40% (this is from memory, but I think it's close) of the students being Asians. If we're serious about racial proportionalism, minimum quotas (or, if you want to play word games, "goals" or "timetables") necessarily require maximum quotas, just because the numbers have to somehow add up to 100%.

     I understand why blacks or Hispanics want to be represented by blacks or Hispanics, or want some race-matched fraction of the Congress or of the UC student body to be black or Hispanic. Ethnic loyalties appear to be a part of human nature, and the suspicion that "one's own group" will more faithfully represent one may sometimes be rational. But if that's so, then it's hard to deny the same to Christians who want to be represented by Christians.

     Our nation, I think, cannot afford these sorts of attitudes. We need to reject demands for religious or racial proportionalism, or claims that only people of one race and religion can only be represented by those of the same race and religion, wherever they occur.

 
[Eugene Volokh, 9:20 AM]
SOUND-BITES: I'm back from the Fox News taping -- I should have a sentence or two on Megan's Laws on the Fox Report broadcast tonight between 7 and 8 Eastern (though who knows, with the news biz; I've ended up on the cutting room floor often enough).

     My main sound-bite, which I hope they'll keep is "It's perfectly constitutional for the government to tell the truth about people." I owe this to Kent Scheidegger at the Criminal Justice Legal Foundation; when I first started commenting on sex offender notification laws about three or four years ago, I called him to ask for a sound-bite, and I think he just composed it on the spur of the moment.

     Sound-bites are often derided, and with good reason -- many are dishonest or vapid. But they're often absolutely necessary: Many busy listeners who aren't specialists in your field aren't going to remember a long, complex argument -- but they will remember one sentence. The trick is to make that sentence count.

     A good sound-bite, it seems to me, must be (1) clear, (2) short, (3) substantive, (4) an honest statement of the issue, and (5) if possible, catchy. "It's perfectly constitutional for the government to tell the truth about people" isn't perfect; it could be shorter and snappier, I suspect. But it conveys a simple, substantive point, and it honestly confronts the issue rather than evading it. I really do think that it is generally constitutional for the government to tell the truth about people, even if the truth may lead others to stop dealing with them (and even if unfortunately some people may commit crimes, such as vandalism of the sex offender's home, based on this accurate information).

     Now sound-bites can't be complete, and they can't squarely confront the counter-arguments: They're just too short for that. But I think that's permissible. For instance, I can imagine situations where it might be unconstitutional for the government to tell the truth about people -- it's conceivable, I suppose (though far from certain), that a government policy of intentionally revealing embarrassing information about people of certain races, religions, or political affiliations, for no reason other than to hurt their social standing, might violate the Equal Protection Clause or the First Amendment. But these are narrow exceptions to the broader principle that there's nothing unconstitutional about the government telling the truth about people, and they are pretty far removed from the Megan's Law debate. There's no need to deal with these exceptions, when all you have is a sentence.

     A colleague of mine once told me a story about (if I recall correctly) California Governor Pat Brown and one of his advisors. Brown knew he was going to be asked about a court decision that required the University of California to rehire a faculty member who was fired because she was a Communist. (This was in the early 1960s.) It was clear that the University would indeed rehire the Communist, but lots of people would naturally object to Commies teaching California's young people.

     So Brown got together with the advisor, and came out of the meeting with six words: "The Regents should follow the law." This is pretty much what he said in response to everyone's questions: "The Regents should follow the law." But how can we give important jobs to Communists? "The Regents should follow the law."

     A great sound-bite, I think: Clear, short, substantive, honest, and catchy. Surely not enough for, say, an academic analysis, which would presumably ask whether the law is sound, and how the government could try to change the law. Perhaps not even enough for an op-ed, that might need to deal with at least some other important details. But when busy listeners only have time to focus on one sentence, this is a great sentence for them to focus on (at least from Governor Brown's perspective).

     Sound-bites are an important art. They can be used for good or for ill, and it's important that people challenge the dishonest sound-bites, which operate through rhetorical sleight-of-hand or empty metaphor. But they are absolutely necessary for any movement, any politician -- and for that matter anyone called on to comment on a TV news show.

 
[Eugene Volokh, 6:53 AM]
FLYING CHICKENS: A gaggle of quibblers complain that chickens do fly, albeit short distances. Yeah, yeah, yeah, if you want to call that flying. But let me ask you this: Do you want computers that compute as well as chickens fly? (Obligatory jokes about one's least favorite operating systems omitted.)

 
[Eugene Volokh, 5:44 AM]
IMPRECISE TRANSCRIPT OF A PHONE CONVERSATION I JUST HAD: . . . [Substantive discussion about Megan's law omitted, on grounds of irrelevance to the gag.] "What about those billboards that police departments put up to publicize the names of johns caught in prostitution sweeps?" "I object to that term!," says my friend, whose name is, of course, John. Johanno-Americans, unite to fight this offensive terminology!

 
[Eugene Volokh, 4:11 PM]
FOX NEWS TOMORROW ON MEGAN'S LAW: I should be on Fox News tomorrow (Tuesday) some time between 7 and 8 pm Eastern talking about the Supreme Court's Megan's Law cases, which should be heard and decided next Term (October 2002 to July 2003). The question: Does requiring sex offenders to register, and then publicize their names, violate their rights under the Due Process Clause or under the Ex Post Facto Clause (if the registry requirement is imposed after their crimes were committed)? The Second and the Ninth Circuits held that the answers was yes (the Second as to the Due Process Clause and the Ninth as to the Ex Post Facto clause). I say the answer is no, and I think the Supreme Court will take that view.

     Here's the Second Circuit's argument:

We think . . . that publication of the registry implies that each person listed is more likely than the average person to be currently dangerous. That implication seems to us necessarily to flow from the State's choice of these particular individuals about whom to disseminate information, a record as to their sex offences, and information as to their current whereabouts. This implication stigmatizes every person listed on the registry. And the plaintiff claims that, as to him, it is false.

If the "plus" factors are present -- a question to which we will turn shortly -- then the plaintiff is entitled to due process in the form of a hearing at which he would have the opportunity to establish that he is not particularly likely to be dangerous and therefore should not be listed in a publicly disseminated registry in a way that falsely implies otherwise.

The State of Connecticut contends that by enjoining the publication of the information on the registry, the district court was doing no more than enjoining the dissemination of truthful information about the criminal history of the registrants. That would be troubling if it were so. We would be deeply concerned about a federal court's order the purpose of which was to require the State of Connecticut to keep truths from its citizens. We conclude, however, that the district court's order does not target truthful speech. Publication of the registry in its present form implies that persons listed on the registry are particularly likely to be currently dangerous. Unless everyone on the registry is particularly likely to be dangerous, a proposition that the State neither asserts nor embraces, that implication is not true.

     I don't buy it -- I think that the state is simply telling the public that these people committed sex crimes, and that, since (1) no-one can know for sure who'll repeat their crimes, but (2) human experience teaches that someone who's done something bad once is more likely to do it again, the public may want to be cautious about these people. There's no constitutional right to a hearing at which one can "prove" that one is no longer likely to be dangerous, in part because that's not the sort of thing that one can really "prove."

     So the government really is just telling the truth to the public, and it's perfectly entitled to do so. It may be good or bad policy, but it's entirely constitutionally permissible.

     No time now -- or perhaps even later -- to blog anything about the Ninth Circuit's argument; off to dinner with some of my D.C.-area friends. Vietnamese food, yum.

 
[Eugene Volokh, 3:19 PM]
VOLOKH CONSPIRACY CATCHES SCIENTISTS IN OBVIOUS SCIENTIFIC ERROR! The microchips-from-chicken-feathers article in the Washington Post (thanks to instapundit.com) explains:

One possible alternative for increasing a chip's speed is finding a quicker material than silicon. So Wool turned to the chicken feather. He knew that feathers contain lots of air; because birds need to fly, their feathers are strong but light, mainly due to their high air content. Perhaps, Wool figured, the presence of air would make electrons travel faster.

But chickens can't fly! And this guy calls himself a scientist -- hasn't he even seen Chicken Run?

 
[Eugene Volokh, 1:09 PM]
SEPARATION OF MOSQUE AND STATE: Howard Fienberg of Kesher Talk was kind enough to point me to an interesting news story from my home state (a state I've left for about two weeks, hence the slower than usual blogging and the likely long delay in responding to my e-mail):

California's Governor Gray Davis will today sign the Halal Food Bill (AB1828) into law at a Los Angeles Islamic center. The bill makes it a misdemeanor to, with the intent to defraud, sell or expose for sale, "meat, meat products, or any food product that is falsely represented as being halal, or as having been prepared according to Islamic religious requirements." (Halal food is that which satisfies Islamic guidelines on content and preparation. For example, Muslims are prohibited from consuming pork products or foods containing alcohol.)

The bill passed unanimously in the California State Legislature. Similar bills have passed in New Jersey, Illinois, Michigan, and Minnesota.

CAIR-CA worked with Assemblyman Bill Campbell (R-71) to draft and introduce the bill. Dr. Ahmad Sakr of the Islamic Food and Nutrition Council of America (IFANCA) provided technical and scholarly assistance.

"The passage of the Halal Food Bill reaffirms California's commitment to religious diversity," said Hussam Ayloush, Executive Director of CAIR-LA.

Unfortunately, the Legislature doesn't seem to have gotten enough legal assistance on this, because the law, while well-intentioned, is almost certainly unconstitutional. Similar Kosher enforcement laws have been struck down in recent years by (if I recall correctly) at least three appellate courts (click here for the latest such decision, from the U.S. Court of Appeals for the Second Circuit), and have not been upheld by any -- and for good reason.

     As I mentioned in an earlier post, it's just no business of the government to decide the quintessentially religious question of what really is kosher or halal and what isn't. There will doubtless be disputes as to what is really halal and what isn't, just as there are about what is really kosher and what isn't -- and there can be no objective answer to that, since under our system of religious liberty each person can decide for himself how he wants to interpret religious laws. The government may not take sides on this sort of religious question.

     Fortunately, it turns out that halal and kosher enforcement laws aren't really necessary to protect people from fraud (and it really is a nasty sort of fraud). Neither is it necessary to enlist more convential laws barring false statements about one's goods; enforcing those laws would still require courts -- government officials -- to decide whether the label "halal" is accurate.

     Rather, people can rely on trademark law. There are kosher certification authorities, such as the Union of Orthodox Jewish Congregations of America, that license special certification marks (in the Union's case, a capital "U" inside a circle) to those businesses who comply with the Union's rules and subject themselves to the Union's investigations. Individual rabbis do the same for local restaurants. If someone uses the certification mark or a rabbi's name when they aren't licensed to do so, they're violating trademark law -- and the government can punish them for violating this secular law without any judgment about whether their actions also violated religious law. Muslim organizations should do the same for halal, and it may well be that some already have.

     The religious judgments (did so-and-so comply with halal laws?) are purely in the hands of religious authorities. The secular authorities have to pass only secular judgments (did the person use the certification mark or the imam's name without permission?). The result is separation of church and state, a phrase that's often abused, but that is quite proper here. (Of course, there might still be concerns about the certification authority, whether an organization or an individual Muslim religious leader, erring in its certification decisions -- but the same concerns apply doubly to state-run enforcement halal agencies.)

     And this, I think, illustrates a broader point: Separating religion and state is best accomplished when the government takes no cognizance of religion -- gives it no special benefits and imposes on it no special burdens or exclusions. Trademark law is equally available to everyone, religious or not. It provides a benefit to religious organizations, but only on equal footing with other organizations.

     Such equal treatment is proper, whether as to trademarks, income tax exemptions for charitable contributions, or school choice programs. But special benefits for religion, especially ones that require the government to make quintessentially religious judgments, are generally not proper.

 
[Eugene Volokh, 7:09 AM]
DO YOU HAVE THE RIGHT TO SAY WHOM YOU WANT FOR A ROOMMATE? In California, you apparently don't. On May 7, the California Fair Employment & Housing Commission penalized Melissa DeSantis $500 for inflicting "emotional distress" on a would-be roommate by allegedly telling him that "I don't really like black guys. I try to be fair and all, but they scare me." It also required her to pay him $240 in expenses -- and take "four hours of training on housing discrimination." (See Department of Fair Employment & Housing v. DeSantis, 2002 WL 1313078, Case Nos. H 9900 Q-0328-00-h, C 00-01-180, 02-12 (Cal. FEHC May 7, 2002).) Interestingly, I've seen no published accounts of this incident -- I dug it up using a query that I periodically run on a very obscure administrative agency database.

     People have gotten used to the notion that businesses can't discriminate based on race, sex, religion, and the like in choosing whom to hire, whom to let in their restaurant, or whom to rent to. This does burden the employer's or owner's freedom of choice, but the dominant view (whether right or wrong) is that this burden is fairly slight, and is outweighed by the felt need to save certain groups from being systematically excluded from important opportunities.

     But most people, I think, assume that this must stop somewhere: Presumably the government can't tell me not to discriminate based on race or religion (or sex!) in choosing a spouse, even though marital choices obviously have important economic effects. Presumably it can't interfere with my choice of dinner guests or house guests -- or, most of us, would think, roommates who would share a two-bedroom apartment.

     California law in fact partly reflects this judgment, concluding (in Cal. Gov. Code sec. 12927(c)(2)(A)) that owners of "single-family house[s]" are allowed to discriminate in selecting roomers or boarders, if they have only one such boarder; "owner" has been read to include a tenant who's renting to a roommate, and presumably "house" would be seen as including an apartment. But setting aside selection based on sex, the law specifically bars people from making "discriminatory notices, statements, and advertisements."

     Thus, in California it's OK to refuse to rent to roommates because of their "race, . . . religion, . . . sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability" -- but illegal to tell them this. It's illegal to put out an ad saying "Single white female seeks same to share apartment" (that's expressing a preference based on race and marital status), or "lesbian pagan seeks same" (preference based on sexual orientation and religion) -- and it's illegal to say that to people in person. (The DeSantis decision dealt only with in-person statements, but its logic would apply equally to classified ads.)

     This strikes me as extremely troublesome. First, I think it interferes with people's freedom of speech; while the government may prohibit commercial advertising that expresses an intent to illegally discriminate, DeSantis was only expressing her intent to do something that's quite legal (choose her roommate based on her own preferences). (Actually, the Commission specifically declined to find that DeSantis actually discriminated against the would-be roommate based on race -- it only found that she inflicted "emotional distress" on him by making the statement.)

     Second, it interferes with people's freedom of intimate association -- the Supreme Court has rightly said that people have a constitutional right to choose their family members and friends, and I think the same should apply to roommates. To my knowledge there's no caselaw on the matter, but at least one lower court has found that members of a selective club with several hundred members have a constitutional right to choose their fellow members; surely the same should apply to someone choosing whom to live with in a two-bedroom apartment.

     True, the law doesn't ban the exercise of the right to choose one's roomate as such -- but it does ban a very important tool through which one can exercise this right, which is advertising. If the lesbian pagan wants to find another lesbian pagan, she'll have a hard time doing that if she has to waste time sorting through dozens of applicants who don't qualify. What's more, she presumably can't even ask them about their sexual orientation or religion, since that itself might be seem as expressing a "discriminatory statement." In constitutional lingo, the law places a "substantial burden" on the exercise of the right to intimate association, even though it doesn't ban it outright.

     It's also not clear that the law is doing the discriminated-against roommates any great favor. If people won't rent to me because they're looking for a black or Hispanic or Asian cotenant, I'd rather know that up front, in the ad itself, rather than spending my time doing something that, unbeknownst to me, is entirely futile (and in fact quite lawfully futile, so long as the tenant says nothing to me about her real criteria and her reasons for rejecting me). That's a less important factor than the constitutional arguments, but I think it's also worth bearing in mind.

     Now to its credit, the Commission acknowledged that "This case raises significant issues of the constitutional protections of freedom of speech and the right to privacy and association," but pointed out that under the California Constitution, administrative agencies may not decide that a statute is unconstitutional -- only courts can do so. Unfortunately, I suspect that Ms. DeSantis has not appealed the matter to a court (few people have the money to do that, or the knowledge about how to track down public interest lawyers who might take the case for free).

     And to its discredit, the only public interest organization that was voluntarily involved in this case was on the wrong side: the Fair Housing Law Project entered the case against Ms. DeSantis. This sort of tunnel-vision focus on stopping discrimination with no concern for contrary interests -- to the point of punishing people for choosing with whom they want to share their two-bedroom apartment -- strikes me as a mistake.