[Eugene Volokh, 1:10 PM]
JOURNALIST ASKED TO CLOSE DOWN BLOG: Editor & Publisher gives the details on the story (thanks, Ken Layne) about the Hartford Courant ordering its reporter to shut down his blog. Now let me first make clear that I think the newspaper ought to have the legal right to do this, and probably does have the legal right to do this (though it turns out that there's a Connecticut statute, the meaning of which is highly uncertain, that restricts employers' ability to fire employees because of their speech). But the rationale, at least as set forth in the Editor & Publisher, seems like a classic case of Obscurantism Through Generalities:

But Toolan sees it differently. "Denis Horgan's entire professional profile is a result of his attachment to the Hartford Courant, yet he has unilaterally created for himself a parallel journalistic universe where he'll do commentary on the institutions that the paper has to cover without any editing oversight by the Courant," Toolan said. "That makes the paper vulnerable."

The editor added that allowing an employee to set up his own opinion blog was a bad precedent. "There are 325 other people here who could create similar [Web sites] for themselves," said Toolan, who called his decision "common sense."

     Let's start with the first claim: "That makes the paper vulnerable." Vulnerable to what? Libel lawsuits? I doubt it, and if that's all the Courant cared about, it should just insist that Horgan make clear on his site that these are his own words as a private citizen, and not the words of the Courant; I don't see how the Courant could then be held liable for his own off-the-job speech. Vulnerable to public criticism? I suppose it's possible: Maybe he'll say something outrageous enough that people will, say, pull advertising from the Courant, or cancel their subscriptions. But just how likely is that? Seems not terribly likely; these sorts of scandals are quite rare, and Horgan will have plenty of incentive to avoid them. And in the unlikely event that this happens, the Courant should easily be able to cut its losses then, by firing Horgan -- the normal remedy when an employee arises extreme outrage among the public.

     On to the second claims: "allowing an employee to set up his own opinion blog was a bad precedent." And at the bottom of the slippery slope is . . . what? Several blogs by Courant reporters (surely not 325 -- only a small fraction of all people want to take the time to write for free)? So what? I find it hard to imagine that this will itself somehow cut into the Courant's circulation -- and if that's what the Courant is worried about, that speaks ill of the Courant's confidence in its own value and quality. More likely, people will come to like Horgan more, and be therefore more likely to like the newspaper for which he regularly writes.

     I generally sympathize with employers, who have to deal with a lot of threats -- legal threats, public relations threats, and competitive threats. People often condemn them too much, with too little sympathy for the difficulties that they face. Nonetheless, here it seems to me that the employer's actions don't make a lot of sense, and its justifications for its actions seems to be double-talk. Not the sort of behavior that one respects in a newspaper.

 
[Eugene Volokh, 12:58 PM]
PREDICTIONS OF DOOM: As Josh Chafetz (Oxblog) points out, it's a cheap shot, but a funny one.

 
[Eugene Volokh, 3:17 PM]
A FEW MORE WORDS ABOUT "RESTRICTING SPEECH": Under the Sun writes:

My question is, why do people want to restrict remarks like Lott's, Cubin's, Santorum's? The only legitimate ground for restricting speech is that it's dangerous -- else you're just trying to restrict belief, which is impossible. So how might a racist or homophobic statement be dangerous? It might threaten, but if so it's hate speech; none of these were. It might incite, but that too is actionable, and clearly wasn't the case here. No, our objection to the three Congresscritters' remarks is merely that they were wrong. And the proper response to wrong speech is not condemnation or punishment; it is correction. Rather than calling for censure, officially or otherwise, we should emphasize our competing, and morally superior, positive position: we should vocally support equal rights, and encourage our representatives to do the same.

     I think this is mistaken. No-one is calling for "restrict[ing]" Santorum in the sense of "punish[ing]" him via prosecution or lawsuit. Rather, people are trying to emphasize their competing positions and condemning people (such as Santorum) who hold views that they think are immoral. The two go hand in hand: If your view is the opposite of Santorum's, and you want to argue that it's the only morally sustainable view, then naturally this will involve condemnation of Santorum's statements.

     As I suggested last week, perhaps if people were calling for boycotts of Santorum supporters, or people who advertise on talk shows that invite Santorum to express his views, or some such, such boycott calls could be condemned as intolerant. That's a tough issue.

     But simply saying that a politician's views are wrong (if that's what one thinks) -- which is indeed a form of "condemnation" -- is a perfectly "proper response to wrong speech." It doesn't stop Santorum's views from being communicated to potentially willing listeners; and to the extent that it deters politicians from expressing certain views for fear of public condemnation, that's a proper form of deterrence. In a democracy, members of the public should condemn those politicians whom they find to be deeply misguided.

 
[Eugene Volokh, 2:53 PM]
COPYRIGHT LAWSUIT AGAINST GROKSTER AND KAZAA DISMISSED by a federal district court; here's the decision. Key paragraphs:

Defendants distribute and support software, the users of which can and do choose to employ it for both lawful and unlawful ends. Grokster and StreamCast are not significantly different from companies that sell home video records or copy machines, both of which can be and are used to infringe copyrights. While Defendants, like Sony or Xerox, may know that their products will be used illegally by some (or even many) users, and may provide support services and refinements that indirectly support such use, liabiltiy for contributory infringement does not lie "merely because peer-to-peer file-sharing technology may be used to infringe plaintiffs' copyrights" [EV: citing the Napster case]. Absent evidence of active and substantial contribution to the infringement itself [EV: this is how the court distinguishes the Napster case, where the Napster servers were used to provide the indexes needed to complete each copying transaction], Defendants cannot be liable. [P. 27.] . . .

While the parties dispute what Defendants feasibly could do to alter their software [EV: to make infringement harder], here, unlike in Napster, there is no admissible evidence before the Court indicating that Defendants have the ability to supervise and control the infrnging conduct (all of which occurs after the product has passed to end-users). The doctrine of vicarious infringement does not contemplate liability based upon the fact that a product could be made such that it is less susceptible to unlawful use, where no control over the user of the product exists. [Pp. 32-33.]

It will be interesting to see what the Ninth Circuit will do; I have no prediction on that. It will also be interesting to see what Congress will do -- the district court concludes by saying that "additional legislative guidance may be well-counseled" (p. 33). I don't know, though, whether the movie and music companies will go to Congress right away, or whether they'll wait for the Ninth Circuit to decide.

     By the way, Grokster was represented by, among others, my friend and erstwhile coauthor Mark Lemley, who's a copyright maven at Boalt Hall School of Law (UC Berkeley) -- congratulations to Mark!

 
[Eugene Volokh, 12:48 PM]
IRS CRACKDOWNS, THE WORKING POOR, AND THE NEW YORK TIMES: My friend Victor Fleischer has a very interesting story about these topics -- his A Taxing Blog can be pretty technical at times (he's a first-rate tax wonk), but this is quite accessible and interesting, and is as much about the media and about how the New York Times frames class issues as it is about tax policy.

 
[Eugene Volokh, 10:25 AM]
MORMONISM, POLYGAMY, AND WOMEN'S RIGHTS: Clayton Cramer mentions an interesting factoid: "[T]he Mormon Church (still supporting polygamy at the time) gave women the right to vote in 1870, and it was Congress that took it away in 1887, as part of an anti-polygamy law. The Mormon Church apparently didn't think that women voting would be a problem for polygamy." I did not know that!

 
[Eugene Volokh, 9:51 AM]
POLYGAMY AND ECONOMICS: Jon Klick, a fellow (doubtless a jolly good one!) in residence at the George Mason University School of Law, writes:

Regarding your discussion of polygamy, there are some interesting economic issues involved here. A good place to start is Gary Anderson and Robert Tollison (1998). "Celestial marriage and earthly rents: Interests and the prohibition of polygamy." Journal of Economic Behavior and Organization, 37(2): 169-181.

The basic argument is that, as long as existing wives have direct or indirect veto power over new wives, polygamy is generally welfare increasing for women, but welfare decreasing for men in the aggregate (basically, polygamy leaves a shortage of female marriage partners). Anderson and Tollison argue that men used their greater voting power to induce the government to crack down on polygamy among the Mormons.

Interestingly, if there's reason to believe that members of one of the sexes are more likely to enter into legalized homosexual marriages (empirical question, I guess), then there would be a similar disruption in the partner markets, if sexual orientation has any plasticity on the margin (another empirical question, I suppose; Posner discusses some of the evidence for "opportunistic homosexuality" in his Sex and Reason book). It seems to me that there are significant political economy forces (similar to that described by Anderson and Tollison) which push against any such disruptions.

I haven't read the paper, or given that much thought to the subject, but this seems an interesting question. I do think, though, that in our society these sort of effects of recognizing polygamous marriages will be fairly modest (as they have been as to decriminalization of homosexuality, and as they would be as to recognition of gay marriages). I think relatively few people would want to engage in polygamy, probably fewer even than those who are homosexual (4% of men and 1.5% of women, according to the most recent studies).

 
[Eugene Volokh, 9:42 AM]
SAEEDING: See here for an example of a new form of criticism, for which I have just the name -- "saeeding." Yes, not as euphonious as "fisking," but one does what one can. (Thanks to Jumping to Conclusions for the pointer.)

 
[Eugene Volokh, 7:05 AM]
INTERESTING LITTLE ARCHAISM in the Constitution, which I had never noticed before -- article II, section 1:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: . . . .

"Before he enter" -- I like that, though I doubt that people would write this way today. I suspect that it's a mood sort of thing (the language, not my liking it), probably the subjunctive.

 
[Eugene Volokh, 5:26 AM]
GOD AND CAESAR: I have often heard it said that the Ten Commandments are an important part of the foundation of American law, and I think that's true to a point. But here's a quick question for you: How many of the Ten Commandments are actually implemented as legally binding obligations under modern American law? (To avoid confusion, let's focus on the list in Exodus, chapter 20, King James Version, available here.)

     It turns out that the answer today is pretty much 3. For a full rundown, see here, but here's the basic scoresheet:

1. "Thou shalt have no other gods before me." No.
2. "Thou shalt not make unto thee any graven image." No.
3. "Thou shalt not take the name of the LORD thy God in vain." No.
4. "Remember the sabbath day, to keep it holy. . . . . [On the Sabbath] thou shalt not do any work . . . ." Basically no -- there are still a few Sunday closing laws, but they surely don't apply nearly as broadly as the Commandment does; no-one would punish you for working at home on the Sabbath, for instance.
5. "Honour thy father and thy mother . . . ." No.
6. "Thou shalt not kill." Yes.
7. "Thou shalt not commit adultery." Not in practice legally enforced today, though some states do still have criminal prohibitions on adultery on the books.
8. "Thou shalt not steal." Yes.
9. "Thou shalt not bear false witness against thy neighbour." Yes, more or less.
10. "Thou shalt not covet thy neighbour's house, . . . wife, . . . manservant, . . . maidservant, . . . ox, . . . ass, [or] any thing that is thy neighbour's." No.

So three (killing, stealing, false witness) commandments are legally enforced today, and one can make a plausible -- though I think ultimately unpersuasive, chiefly for pragmatic reasons -- argument that a fourth (adultery) should be, too. As to the other commandments, I think very few people, including most devout Christians, would want the government to enforce them to their natural scope. (Do people really want the law to prohibit coveting? Dishonoring one's father and mother?) Even those who might support some public swearing bans or Sunday closing laws probably wouldn't want to outlaw all taking of God's name in vain (e.g., swearing in one's own living room) or ban all work on the Sabb th (e.g., someone working from home), even though the Commandments aren't limited to public swearing or public employment.

     All this is an illustration, I think, of a basic point: Even if one thinks that the Bible is a proper source of legal guidance, a Biblical prohibition of something is not itself a sufficient reason for secular law to prohibit it, too -- as even many of the Commandments (which some say are among the most fundamental of the Biblical rules) demonstrate. There still has to be a second step of the argument: Not just that the Bible prohibits it, but that this prohibition is also one of the rules that should be imposed by secular law as well as religious law, as opposed to one of the many rules that should only be imposed by religious law. Those who want not just to live their lives by the Bible, but also order the secular law (at least in part) around the Bible must be able to explain why some particular provision that they suggest should be enforced (say, the prohibition on homosexuality) is more like "thou shalt not kill" or "thou shalt not steal" (for which we should be accountable to Caesar as well as to God) rather than like "thou shalt not covet" or "thou shalt not make unto thee any graven image" (for which we are accountable solely to God, coupled perhaps with the informal judgment of the community of the God-fearing).

 
[Eugene Volokh, 6:32 PM]
BIGAMY/POLYGAMY AND GAY MARRIAGE: Andrew Sullivan writes, in the context of criticizing the Santorum comments,

My golden rule in matters of limited government is an old and simple one. It is that people should be free to do within their own homes anything they want to, as long as it is consensual, adult and doesn't harm anyone else. Bigamy and polygamy are therefore irrelevant here. Bigamy means being married to more than one woman; polygamy, likewise, means being married to more than two women. There's nothing inconsistent between saying you don't want such marriages to be legal (I don't) and also saying that what people do sexually in their own homes should be their own business, and not the government's.

He is right, of course, that whether homosexual conduct should be illegal is a different question from whether the state should recognize polygamous marriages (let's assume that all the parties, including the first wife, are consenting adults). But why is the recognition of polygamous marriages such a different matter from the recognition of gay marriages, which Sullivan also supports (as do I, at least tentatively)?

     One certainly can draw some distinctions here. To begin with, polygamous marriages would raise much more complex property division questions, child custody questions, and the like. Also, one might argue that there is something especially valuable -- or something especially likely to succeed -- in committed relationships among two people rather than committed relationships among three or more. And of course some argue that polygamy is oppressive to women, though the focus on liberty and private choice at the heart of the gay marriage rights movement suggests that the state ought not second-guess consenting adults' judgments about whom they choose to commit to.

     And yet while these are not unreasonable distinctions, I wonder whether they are persuasive enough, and whether -- if gay marriage is legalized -- they will be persuasive enough to future decisionmakers who are faced with the arguments of those who demand equality, civil rights, and (for many people) religious freedom for polygamists. Pro-gay-marriage forces argue that toleration means more than just not throwing people in jail; it also means giving them equal access to important social institutions. Pro-gay-marriage forces argue that marriage shouldn't be arbitrarily defined to mean one man and one woman, to the exclusion of minority views. Pro-gay-marriage forces argue that if people want to be together in a committed relationship, it's better for the law to recognize that relationship rather than denying it recognition, and thus weakening the very bonds of commitment that we want to foster. If those positions are accepted for gay marriage, it'll become harder to resist them for plural marriage.

     I'm not trying to provide a reductio ad absurdum here; as I said, I tentatively support gay marriage, and the arguments I give above might even lead me to support recognition of polygamous marriage (though perhaps some of the distinctions might ultimately persuade me). But I do think that there is a potentially powerful analogy here, and one that at least some people will indeed try to use on behalf of polygamous marriage if gay marriage is legalized.

UPDATE: Several people e-mailed me to argue that whether homosexuality / incest / polygamous sexual relationships are decriminalized is a separate question of whether such marriages should be allowed. I agree entirely that it's a separate question -- but the post isn't about whether the decriminalization of homosexuality should lead to allowing gay or polygamous marriages. Rather, it's about whether allowing gay marriages may lead to allowing polygamous marriages. The only question in this post is: Once the arguments of the pro-gay-marriage forces are accepted (as I tentatively think they should be), what will that mean for polygamous marriages?

 
[Eugene Volokh, 6:08 PM]
JUDGING OUR ANCESTORS: Eric Muller, a fellow lawprof and an erstwhile Volokh Conspiracy guest blogger, is writing about a complex and fascinating question: How should one assess the wrongdoing of one's parents' and grandparents' generations? (This is particularly interesting because one day our children and grandchildren will be assessing our wrongdoing.) He's looking for books and movies that deal with this question, and asks for suggestions via e-mail or the comments on his page -- if you want to read more about this, or have some suggestions, check out his post.

 
[Eugene Volokh, 6:05 PM]
HUGH HEWITT DEBATE RECAP: Well, my opponent (a professor at Biola University) thought homosexuality and consensual incest were analogous, too -- he decried the legalization of homosexuality (not just the constitutionalization of the question, but even the legislative decisions to legalize it).

 
[Eugene Volokh, 5:01 PM]
HUGH HEWITT SHOW: About to do the debate about whether adult, consensual incest should be illegal on the Hugh Hewitt Show; my opponent will be John Mark Reynolds at Biola University. I was on the show with him once in the past, about the Dini matter, and much enjoyed it.

 
[Eugene Volokh, 11:47 AM]
ROOMBA UPDATE: I ran the Roomba again yesterday, in the same bedroom in which I ran it the day before; when I checked the container for the sucked-up gunk, it was about half full (not as full as the first time). Positive spin: If I didn't have the Roomba, there'd be all this extra dog hair, dust, and the like on the carpet, and if I run it every day or two, our room will be much cleaner. Negative spin: Sounds like the Roomba didn't really pick up everything the first time (since I doubt that our dogs shed that much every day).

     In fact, that's my continuing suspicion about the Roomba: I'm just not sure that it covers pretty much the whole carpet. I might try to spread some visible stuff (salt? sand? confetti?) over the whole floor one day next week, and then let the Roomba run to see what's left at the end; that would be the obvious test, but I'm just not sure I'm that committed to the scientific method here. In any case, if I do run that, I'll let you know.

     Experiment for today: The Roomba is cleaning my study. I'll also try again tomorrow, since the dogs don't go there, and the second run will thus be a better test of what the Roomba missed today.

 
[Eugene Volokh, 7:30 AM]
SHORT ARTICLE ON CAMPAIGN FINANCE AND THE FIRST AMENDMENT: I've just put my short piece, Why Buckley v. Valeo Is Basically Right, up on the Web; here also is the PDF. It's not that different from my Harvard Journal of Law & Public Policy piece, on which it's based; but it's shorter, and I thought some readers might find it of interest.

 
[Eugene Volokh, 6:06 AM]
SPEAKING OF INCEST: I'm scheduled to be speaking about incest -- consensual incest among adults, I stress again -- on the Hugh Hewitt Show Thursday at 5 pm Pacific. It should be a debate, with listener call-in, and it ought to be a lot of fun; I always enjoy being on Hugh's show. I confess I am surprised to be getting pegged as The Incest Defender (even though I'll of course only be saying that it shouldn't be illegal, not that it's a good idea); it's not my main field of research, or even close to it. Still, I said it on-blog, so I've got to be ready to defend it publicly, and I'm happy to do so.

 
[Eugene Volokh, 5:23 AM]
MORE ON LIBERTARIANS, DEMOCRATS, AND REPUBLICANS: A reader writes:

What perplexes center-left types like myself . . . who are often sympathetic to Libertarian attitudes on cultural questions is why most Libertarians privilege issues of tax policy and economic regulation on which they are more closely aligned with Republicans over issues of privacy (sexual and otherwise) and free expression on which they are more closely aligned with Democrats. I'm not clear on why simply reclassifying the former as issues of civil liberties rather than economic policy answers the broader question.

About 15 years ago, I heard a pretty good answer to this question, from a fellow named Charles Fuller. As I recall, he put it more or less this way, of course as a broad generalization: The Republicans want to control my sex life, and the Democrats want to control my economic life; these days -- perhaps not always, but these days -- it's much harder for the government to control my sex life than my economic life, so the Democrats are the bigger threat.

     Now I myself am not a thoroughgoing libertarian, and I also agree with the Republicans more than Democrats on some matters outside the purely civil liberty / economic policy sphere, such as foreign policy, crime control, race preferences, and so on. But I also do in some measure take this "least dangerous party" view, and I think that other libertarians, even more hardcore ones, do as well.

     If most libertarians thought that the government really was likely to ban abortion (libertarians may in theory be pro-life, but most of the ones I know are pretty firmly pro-choice) or send homosexuals to jail, then they might well vote Democrat to prevent that. (Likewise, if they thought the Democrats would decriminalize drugs and the Republicans wouldn't, then they might vote for the Democrats, too.) But right now, they believe that the Republican errors (on matters such as sexual practices or abortion) aren't that likely to be implemented into law; but they think the equally serious Democratic errors -- on matters such as taxes, economic liberty, gun rights, the government-run school monopoly, and so on -- are much more likely to be implemented into law. Therefore, right now, the Democrats seem to many (though not all) libertarians to be more dangerous to libertarian ideals than Republicans are.

     This is not a perfect solution, of course: We'd prefer to vote for candidates who will implement all our views on all matters. But in the absence of such candidates (remember, I stress will implement, which means they have to get elected), we make the choices that we think will best approximate our preferences, risky as these might be.

 
[Eugene Volokh, 5:03 AM]
MILITARY SPENDING VS. EDUCATION SPENDING: What would you estimate is the ratio of (1) the portion of the U.S. GNP that's spent each year on the military to (2) the portion of the U.S. GNP that's spent each year on education? The answer is here.

 
[Eugene Volokh, 3:30 PM]
MORE ON THE HOMOSEXUALITY / INCEST ANALOGY: William Saletan in Slate agrees that, as a legal matter, it's hard to provide a good distinction between consensual adult homosexuality and consensual adult incest:

Morally, I think incest is bad because it confuses relationships. But legally, I don't see why a sexual right to privacy, if it exists, shouldn't cover consensual incest.

 
[Eugene Volokh, 3:20 PM]
THE POWER OF LEGAL ARGUMENT, even in dissenting opinions:

Juan Ramirez Lopez, an illiterate Mexican man accused of smuggling immigrants into the United States, was convicted and lost an appeal. Despite his repeated protestations of innocence -- he insisted he was an immigrant himself who suffered frostbite after he had been deserted by a smuggler -- he was sentenced to 6 1/2 years in prison.

On Tuesday, he finally won, thanks to a dissenting opinion by one appeals court judge that was so persuasive, federal prosecutors decided to drop all charges and set Ramirez free after serving three years. The dissent, by Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals, pointed out that federal agents had deported to Mexico nine illegal immigrants who had crossed the border with Ramirez -- before they could testify that he was not the smuggler.

Carol C. Lam, the U.S. attorney in San Diego, said she would not comment on how her office decided to free Ramirez. She did acknowledge, however, that the government's action was rare.

"This was very unusual," she said. "We prevailed at trial. We prevailed 2-1 in the 9th Circuit We don't think we did anything wrong."

However, "in light of the circumstances, we felt it was in the best interest of justice to join in the motion to dismiss," Lam said. The prosecutor acknowledged that her office was concerned the appeals court might review the case again and potentially not only free Lopez, but set a precedent that could damage other prosecutions.

Legal experts said they were not aware of any other similar case. "I can't recall another situation where prosecutors won in the trial court and won on appeal and were so afraid of what the appeals court might do [after a rehearing] that they surrendered," said veteran Los Angeles defense lawyer Barry Tarlow.

"Judge Kozinski's dissent beat the government into submission," he said.

During his 17 years as a federal appeals court judge, Kozinski, 52, who was appointed by President Ronald Reagan, has gained a reputation as a smart and outspoken jurist. In the Ramirez case, Kozinski employed both traditional legal arguments and a strong dose of sarcasm to make his points.

"The question at the heart of this case is both simple and important: May the United States get rid of witnesses it knows would provide evidence helpful to the defendant in a criminal case by putting those witnesses beyond the power of the court and beyond the reach of defense counsel?" Kozinski wrote. . . .

Worth reading the whole piece.

 
[Eugene Volokh, 2:44 PM]
JUSTICE DEPARTMENT DROPS DINI INVESTIGATION: According to the Justice Department,

The Justice Department today announced that it was closing its inquiry into complaints by Texas Tech students that a biology professor's medical school recommendation policy, which required affirmation of a personal belief in evolution, constituted religious discrimination. The decision was based on the professor's replacement of the affirmation requirement with a requirement that students simply be able to explain the scientific theory of evolution.

The Justice Department received complaints alleging that Professor Michael Dini had discriminated, based on religion, against several students through his written recommendation policy. The policy, set forth on a Texas Tech website, stated that to receive a medical school recommendation, the student had to meet three criteria. These were to get an "A" grade in one of Professor Dini's courses, get to know him personally through working as a teaching assistant or extracurricular activities, and "truthfully and forthrightly affirm a scientific answer" to the question: "How do you think the human species originated?"

In response to complaints by students, the Justice Department requested information about the school's policies regarding letters of recommendation. Professor Dini subsequently changed the third criteria on the website, dropping the requirement that students affirm a personal belief in evolution. Instead, he now requires them to be able to explain the scientific theory of evolution. In light of this change, the Department of Justice has closed its inquiry into the matter.

"The new policy rightly recognizes that students don't have to give up their religious beliefs to be good doctors or good scientists," said Assistant Attorney General for Civil Rights Ralph F. Boyd, Jr. "A biology student may need to understand the theory of evolution and be able to explain it. But a state-run university has no business telling students what they should or should not believe in. If the separation of church and state is to mean anything, it must surely mean that such matters of conscience are beyond the reach of government inquiry."

The original version of the site said:

If you set up an appointment to discuss the writing of a letter of recommendation, I will ask you: "How do you think the human species originated?" If you cannot truthfully and forthrightly affirm a scientific answer to this question, then you should not seek my recommendation for admittance to further education in the biomedical sciences.

The current version says this:

If you set up an appointment to discuss the writing of a letter of recommendation, I will ask you: "How do you account for the scientific origin of the human species?" If you will not give a scientific answer to this question, then you should not seek my recommendation.

I'm not wild about the way Dini worded his question, but I certainly agree that insisting that a student be able to competently explain an important scientific theory -- if that is the way the question will be understood -- is a legitimate demand, both as a matter of law and academic ethics. (Thanks to my friend Paul Goldsmith for the pointer.)

 
[Eugene Volokh, 12:19 PM]
COMIC RELIEF IN THE SANTORUM INTERVIEW:

Every society in the history of man has upheld the institution of marriage as a bond between a man and a woman. Why? Because society is based on one thing: that society is based on the future of the society. And that's what? Children. Monogamous relationships. In every society, the definition of marriage has not ever to my knowledge included homosexuality. That's not to pick on homosexuality. It's not, you know, man on child, man on dog, or whatever the case may be. It is one thing. And when you destroy that you have a dramatic impact on the quality --

AP: I'm sorry, I didn't think I was going to talk about "man on dog" with a United States senator, it's sort of freaking me out. . . .

 
[Eugene Volokh, 11:31 AM]
USING ONLY LOWER CASE: This is just a guess, but I suspect that using all lower case in one's e-mails or one's posts (as lots of people seem to do) is a bad idea: It decreases the likelihood that the message will be read, understood, and taken seriously. I have three reasons for thinking this:

1. I suspect that the standard way of writing is inherently easier to read -- the uppercase letters are helpful reminders that a new sentence is starting, they are helpful signals that certain words are proper nouns, and they provide a pleasant bit of visual variety. Of course text that's all in lower case can be understood by readers; it's just harder to understand, and it may therefore lead busy readers to switch to reading other things that are easier to understand. (All upper case, I think, is even harder to read than all lower case, largely because it omits the cues I describe here and also leaves much less white space.)



2. In writing, the familiar format is pleasant, and unfamiliar formats are more likely to be jarring. Sometimes jarring is good, because you want to wake up the reader; but usually, it ends up distracting and annoying the reader.



3. Following the linguistic conventions marks you as an intelligent, well-educated writer who knows how to apply the rules, and is willing to take the care needed to apply them; and this would be true even if the rules were entirely arbitrary and even inefficient. Your using the accepted style thus signals, rightly or wrongly, that your substance is valuable. This might not be that important if you're writing to people who know you, and know the value of your ideas (though items 1 and 2 might still apply here). But it's quite important if you're writing to relative strangers.
   
        Written communication tends to elide cues such as race, ethnicity, sex, age, pronunciation, and the like, and that's usually good. At the same time, though, it tends to increase the importance of grammar, spelling, capitalization, punctuation, and other linguistic conventions. Think of grammar, capitalization, and such as "the new accent" -- following the rules is the same as speaking with an upper-class accent that marks you as successful and educated, while disobeying them is the same as speaking with a lower-class accent that marks you as poor and ill-educated. This may be unfair, just as much discrimination based on accents is unfair; but I suspect that it's real, and you ignore it at your peril.

Now I certainly wouldn't recommend that you carefully proofread every single e-mail or post for spelling, grammar, and the like; that would be just too burdensome. But typing in mixed case, rather than all lower case, seems to me to be considerably easier. I might be mistaken, but I think that people who have shifted to lower case would be well advised to shift back.

 
[Eugene Volokh, 10:24 AM]
LIBERTARIANS, DEMOCRATS, AND REPUBLICANS: NoHo-Missives, a left-leaning, pro-Howard-Dean blog, has said various kind things about us in the past -- notwithstanding our differing political views -- and particularly likes a couple of our posts from this morning. But it then goes on to say:

[These posts] reflect[] the Libertarian bent of The Conspirators more than anything, but I think it's indicative of the alignment of interests of the Libertarians and Democrats (especially Howard Dean). I know, I know, Libertarians hate the Democratic Party's tax policy, but I hope they don't allow this administration to pay them to shut up about civil liberties.

I much appreciate the praise, but I think this misses a very basic point about Libertarians: We think that lower taxes and lighter economic regulation are matters of civil liberties. That -- plus other issues, such as gun rights -- are a big part of why the interests of the Libertarians and the Democrats are pretty far out of alignment, on some utterly fundamental matters.

 
[Eugene Volokh, 8:51 AM]
FREEDOM AND BESTIALITY: Several correspondents have naturally raised, in response to my claims that people should be free to have consensual sex, the question of bestiality. Now note that, as I read Sen. Santorum's comments, he did not say that homosexuality and bestiality are morally equivalent. But the issue was indeed implicated by my libertarian assertions, so I suppose I ought to deal with it.

     1. Most importantly, laws prohibiting human-human sexual conduct are generally much more burdensome than laws prohibiting bestiality. Human-human sexual conduct isn't just a source of physical pleasure; it's also a source of emotional fulfillment and meaning. Doubtless many homosexuals engage in sex that has little emotional content -- as do many heterosexuals. But homosexuals and heterosexuals alike do sometimes use sex as a means towards intimacy, love, affection, and other important human values. And even sex outside a long-term, committed relationship can have substantial emotional importance.

     Banning homosexual conduct legally prohibits to homosexuals this tremendously important source of fulfillment. It's not just an interference with liberty; it's an interference that's made especially serious by the magnitude of the deprivation that it creates. Even someone who is not a thoroughgoing libertarian -- someone who is willing to ban certain behavior to make a moral statement more than to prevent real harm to other people -- ought to balk, I think, at laws that deny people something that's so tremendously important to them, at least unless there's some very powerful case that this is really harmful to others (a case that I think is quite lacking as to homosexuality).

     I'm not an expert on the psychology of those who engage in bestiality (a highly underexplored field, I suspect), but I doubt that bestiality provides the same sort of emotional fulfillment (and emotional fulfillment with no really adequate substitute) to those who engage in it. Certainly we view human-human relationships as generally more important to human happiness than human-animal relationships, and I think we have good reason to do so. Given that this is so, comparing bans on homosexuality and bans on bestiality is just inapt.

     2. This having been said, I'm libertarian enough to say that, no, the government ought not throw people in prison for having sex with their sheep, at least unless there's some serious evidence that the sheep is caused significant and unjustified pain by this (possible as to some sexual practices involving smaller animals, I suppose), or unless there's some reason to think that this involves a vast risk of sexually transmitted disease. (Naturally, the broader that one thinks animals' rights are, the more objections one can raise here, but since I think that animals' rights are quite narrow, this isn't much of an issue for me.)

     Sure, this behavior disgusts me. Sure, I see why people might think of this as degrading. But disgust and concern about degradation is not reason enough to throw people in jail.

     Nonetheless, this is a distinctly secondary concern. Bans on bestiality are not, I think, justified, but neither are they tremendously oppressive. Bans on a form of behavior that is vitally important to many people's most important relationships -- that is as important to them, in fact, as heterosexual behavior is important to the human relationships in which we heterosexuals engage -- are indeed tremendously oppressive. Even someone who tolerates modest burdens on liberty should reject burdens that are as grave as this.

 
[Eugene Volokh, 8:12 AM]
SO WHAT'S THE PROBLEM WITH LESBIANISM? I don't have any moral problem with homosexuality, and I generally think that the government should treat people without regard to their sexual orientation. But I'm especially puzzled by the arguments in favor of punishing or discriminating against lesbians, which seem to me to be even weaker than the arguments as to male homosexuals. My sense is that hostility to lesbians is in general somewhat less strong than the hostility to male homosexuals (though I may well be mistaken), but it's still there: The Texas law in the Lawrence case outlaws lesbian oral sex; the military ejects soldiers for lesbianism; some state courts have considered a mother's lesbianism as a factor against her in custody disputes; some government employers have fired lesbians because of their sexual orientation. What possible justification is there for this hostility?

     1. In the military, the main argument for excluding gays is that homosexual attraction can interfere with unit cohesion. But surely that can't work for lesbians, unless we had a military full of all-female units.

     2. Male homosexuals are seen as being more sexually promiscuous, on average, than heterosexuals, and less interested in long-term relationships, which may be bad for family stability; I have heard that this is in fact accurate (again, on average), and it's certainly plausible. I don't think that's reason enough to discriminate against homosexuals, but even if it is, then I don't see how it applies to lesbians, who, to my knowledge, are if anything more likely to be involved in long-term relationships than heterosexuals.

     3. Male homosexuality is seen as more likely to communicate various sexually transmitted diseases, both because of the promiscuity point and because anal sex is more dangerous than other forms. Again, I don't think that this would be reason enough to discriminate against homosexuals, especially given society's current tolerance for potentially disease-causing heterosexual promiscuity. But as I understand it, female homosexual behavior is less likely (and certainly no more likely) to communicate diseases than heterosexual behavior is. As someone once put it, if AIDS shows that God believes homosexuality deserves punishment, then the lower incidence of AIDS among lesbians shows that God must really love lesbians.

     4. This leads us to the Bible. The Bible does, it seems to me, contain text that prohibits male homosexuality -- but I haven't seen any verses that prohibit lesbianism. I may well be missing something; if there are verses that touch on this, please let me know. But at this point, I really don't see any specifically scriptural objection to lesbianism.

     5. What about the objection that the Bible favors heterosexual marriage, and that heterosexual marriage, with its possibility of children, is the norm to which people in society should generally aspire? This too seems to me a slim justification for punishing or discriminating against people who aren't interested in heterosexual marriage -- but if this is really the reason, then why aren't we imprisoning would-be priests and nuns, who are taking themselves away from heterosexual marriage as much as lesbians are? We're generally pretty tolerant of people who want to stay unmarried, or people who choose to be childless, even though we might think that it would be better if more people got married and had kids (if they can). Why aren't lesbians entitled to exactly this sort of amicable toleration, and perhaps even more toleration, since at least many of them do try to get involved in long-term romantic relationships?

     6. Finally, this returns us to claims that the "unnaturalness" of the acts involved in lesbianism -- of which oral sex is presumably one of the leading ones -- is evidence that it's not part of God's plan. As I blogged several weeks ago, I think the "naturalness" argument is highly unpersuasive for many reasons, but it's especially so with regard to oral sex and women. To the best of my knowledge, many women find it considerably easier to get sexual pleasure from having oral sex performed on them than from genital sex. If the way our bodies operate is evidence of God's design and God's desire (which I don't buy, but let's assume this for now), then this suggests that oral sex being performed on women is a big part of God's plan; and since oral sex can be performed on women both by men and by women, it seems then that neither is "unnatural."

     Now, just to repeat once more, I think that male homosexuality shouldn't be criminally punished, either, and that male homosexuals generally shouldn't be discriminated against; more broadly, I think there's nothing immoral about male homosexuality. But I think the case for punishing or discriminating against lesbians is even weaker than the case as to male homosexuals -- in fact, nearly nonexistent. I can understand some of the psychological reasons why some people dislike lesbians; but I don't see any logical ones, or even theological ones.

UPDATE: Michael Williams clears up one matter for me: The New Testament does seem to condemn lesbianism in Romans 1:24-27, though it's not completely clear:

24 Therefore God gave them over in the sinful desires of their hearts to sexual impurity for the degrading of their bodies with one another.
25 They exchanged the truth of God for a lie, and worshiped and served created things rather than the Creator--who is forever praised. Amen.
26 Because of this, God gave them over to shameful lusts. Even their women exchanged natural relations for unnatural ones.
27 In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed indecent acts with other men, and received in themselves the due penalty for their perversion.

So perhaps this is enough of a theological argument against lesbianism, though note that the condemnation is considerably less than the "abomination" language in Leviticus. (It also makes it harder to speak of "Judeo-Christian" morality here, since while the prohibition against male homosexuality is Judeo-Christian, the condemnation of lesbianism seems to be purely Christian, unless I've missed still other verses, which is quite possible.) But in any event, I'm still looking for the logical arguments.

 
[Eugene Volokh, 7:45 AM]
FOR CONSTITUTIONAL FEDERALISM BUFFS: (This will probably not be easily intelligible -- or interestin