[Eugene Volokh, 8:26 PM]
SAD: I saw the following point made by George Waters on the ELECTION-LAW discussion list, and got his permission to pass it along:

Absolutely stunning that, leaving aside findings having to do with the identities of the parties, two members of the court could agree on only [12] findings of fact, #s 41 to 52 in the per curiam opinion. And even those findings begin with phrases such as "The NRA presents evidence that . . ." (No. 41, p. 95 of per curiam opinion.)

I think that the district court has basically taken itself out of the ballgame. All their legal opinions will be reviewed de novo. The findings of fact, which will be granted more deference, are minimal. Their efforts, Herculean though they may be, will have virtually no effect on the outcome of this case.

Yup, too bad -- they write over 1500 pages, which few people will read, which will not be given much deference by the Court, and which will be largely ignored once the Court hands down its opinion. Of course, lower court opinions can often influence the Justices, but here (1) the Justices already have pretty well-settled views on their own about the general issue, (2) there'll be lots of briefs that will explore the questions, and (3) I doubt that anyone will read 1500 pages as carefully as they'd read 50. All that work, for very little.

UPDATE: Linda Greenhouse in the New York Times likewise thinks that the opinion means little:

Would this bloated judicial product have the power to shape the eventual decision by the Supreme Court, the court that will finally determine the fate of the Bipartisan Campaign Reform Act?

The answer was almost certainly no.

When the justices take up the case, probably no sooner than the start of the next Supreme Court term in October, they will be free to start from scratch, and they almost certainly will. The Supreme Court has a strong record of overturning lower-court opinions in campaign finance cases.

The deference the Supreme Court usually pays to a lower court's factual findings is absent in this case, because the special three-judge federal district court conducted a trial only on paper, reviewing tens of thousands of pages of affidavits and depositions about the current campaign finance system and the likely impact of the changes made by the new law. Appellate judges usually defer to trial courts because it is the trial judge, after all, who actually watches the witnesses and hears the testimony, an experience the appellate court cannot duplicate.

But the justices are capable of reading a paper record themselves, and they likely will read it, or at least substantial portions of it.

Further, the panel in this case failed to accomplish the one task that might have sent a decision on to the Supreme Court with a certain momentum: to produce a unified and coherent set of factual findings and legal conclusions.

Instead, the panel produced the opposite. . . .

 
[Eugene Volokh, 5:14 PM]
FACTUAL FINDINGS: Rick Hasen writes about something that Orin Kerr had in some measure anticipated:

The factual findings -- the part that the Supreme Court, at least in theory -- is supposed to show the greatest deference to, are pretty skinny in the per curiam opinion. The individual judges make findings on their own (Kollar-Kotelly and Henderson battle over the usefulness of the Buying Time study of the Brennan Center, and Leon takes a middle position on the study). Without a majority on facts, to what does the Supreme Court defer?

Indeed. As Rick had blogged earlier, it's the factual findings that are most important in the district court opinion -- the Supreme Court Justices will consider the legal questions afresh, but in theory they're supposed to follow the district court's factual findings (since district courts hear evidence, and the Supreme Court doesn't):

Whatever the three-judge court decides in the BCRA case on the legal issues is relatively unimportant. The Supreme Court will not defer to the lower court's decision. (So if you see Mitch McConnell (or, less likely but still possible, Fred Wertheimer) crowing at some press conference in the near future about a "victory," realize how premature this is.) In the most recent Supreme Court campaign finance cases, Shrink Missouri and Colorado Republican II, the Supreme Court reversed the lower court on the legal issues.

What will be significant in what comes out from the district court (likely in the next day or so, I believe) are the court's factual findings. There is supposed to be some deference by the Supreme Court to the lower court's factual findings, and yesterday's order regarding the Buying Time study indicates that there may be some important factual findings in the opinion, particularly on the extent to which the new test for separating election speech from issue advocacy captures "genuine issue advocacy" (as opposed to thinly veiled campaign ads -- or sham issue advocacy). But even there, the Supreme Court might not be too deferential. . . .

So what is the Court to do when the factual record that the district court is supposed to have developed isn't very useful, given that the lower court judges themselves disagree about it?

 
[Eugene Volokh, 4:12 PM]
SPEAKING UP FOR FUNDAMENTALISTS: Bo Cowgill points to my Jews-and-sex post and writes:

Eugene Volokh finds a study suggesting that Jews have more sex. Yet another reason for fundamentalists of all breeds to hate them, I suppose . . . .

     I'm surely no fundamentalist myself, but I don't think this criticism of fundamentalism is quite right. To my knowledge, groups that are generally identified as fundamentalist Christians are generally not particularly likely to be anti-Semitic; in fact, as I understand it, many of them are fairly staunch supporters of Israel. (Yes, one can oppose Israel and not hate Jews, but it's not terribly likely -- though I agree that it's theoretically possible -- that one would support Israel and hate Jews.) True, many fundamentalists believe that Jews cannot be saved if they don't accept Jesus, but that's because they believe that no-one can be saved unless they accept Jesus; and they don't hate Jews because of it.

     Fundamentalists get a lot of grief; some of it may be deserved, but quite a bit, in my experience, has been undeserved. It seems to me that people ought not make erroneous generalizations either about Jews or about fundamentalists.

UPDATE: Reader John Thacker points to this Anti-Defamation League article that supports my factual assertion -- Evangelical Protestants (which generally refers to what many people would call fundamentalist Christians) are not particularly anti-Semitic.

 
[Eugene Volokh, 3:03 PM]
CAMPAIGN FINANCE REFORM AND TIMING: So the opinions in the Bipartisan Campaign Reform Act case take up over 1500 double-spaced pages. The Justices must be thinking "Good Lord, if it took three judges so much time, effort, and e-ink to hash all this out, it will take the nine of us at least as long." And yet presumably the Justices would like to get this resolved sooner rather than later, so as not to change the rules of the game in the very heat of the 2004 campaign. (If the enforcement of the Act is stayed and then the Court upholds part of it in, say, February 2004, campaigns will suddenly have to radically adjust their behavior; if enforcement isn't stayed and then the Court strikes down part of it in February 2004, campaigns will likewise have to radically adjust their behavior, albeit in different ways.)

     Maybe that's no longer possible, but if the Justices still want to try, what can they do? Presumably they could promptly agree to hear the case (maybe the parties will file the jurisdictional statement for the appeal earlier than they need to, precisely to get this expedited), give the parties limited time to file the briefs -- though if the case is so complex, presumably there'll be some real work needed, since litigating a case before the Supreme Court, which can change the precedents, is different from litigating it before a lower court -- and then hear the arguments quickly, perhaps by late June. Then they might work on the case over the Summer, and try to hand down an opinion by September or October.

     But I've never heard of the Court actively working on an opinion throughout the Summer, and it actually poses nontrivial (though not insurmountable) institutional problems. The U.S. v. Nixon tape subpoena case, for instance, was argued on July 8, 1974 but decided on July 24, 1974, and I highly doubt that the Court could get this decision out this quickly. Cooper v. Aaron, the landmark 1958 Little Rock desegregation case, was argued on August 28 and September 11; a quick per curiam was handed down on September 12, and then the main opinion was handed down on September 29, with a concurrence following on October 6. That case, though, involved simple though difficult questions, and relatively short resulting opinions. Neither of the cases involved continual work throughout the Summer -- but given the likelihood that the Justices will be as split on this as they were in Buckley v. Valeo (8 sitting Justices, 6 opinions) and as the lower court judges were in this case, I think it would require several months' worth of work, rather than just a few weeks' worth.

     So what will the Justices do? Might they conclude that they can't avoid the interference with the 2004 election in any event, and just decide the case in the normal course of things? Am I exaggerating the likely interference in any event? Or will they try to get things done as quickly as possible? I don't know the answer to this, but I suspect that a lot of politicos and election lawyers are asking precisely these questions right now.

UPDATE: Rick Hasen of the Election Law blog -- who's a major expert on election law, though one with whom I disagree on a lot of the constitutional questions -- writes:

[T]he Supreme Court working on the case over the summer . . . seems unlikely to me too . . . . I see either expedited briefing with an opinion out at the end of (a possibly extended) term, or oral argument the first Monday in October.

 
[Eugene Volokh, 1:45 PM]
REPUBLICANS AND CONSERVATIVES: Jim Lindgren, a lawprof at Northwestern, and the director of the Demography of Diversity Project there, writes this apropos the University of Miami student government's rejection of a proposed conservative student group on the grounds that there's already a Republican student group:

If the AP story is correct, one sad part of this affair is the false assumption that conservatives and Republicans are not just related, but that they are more or less the same thing. I ran data from the University of Chicago General Social Survey (GSS), the most used data source among sociologists except for the US Census.

In the 18-29 age group in the 1998-2002 GSS, only 43.4% of those who call themselves conservatives consider themselves to be Republicans, while fully 15.0% of conservatives consider themselves to be Democrats (n=366 conservatives). If you add those independents and minor party adherents who merely lean Democratic, then 27.6% of conservatives 18-29 are Democrats or lean Democratic. Only if you add in those independents and minor party adherents who lean Republican could you even say that a majority of conservatives (56.6%) are Republicans or lean Republican.

If you combine all ages, then 47.4% of conservatives consider themselves Republicans, 19.5% of conservatives consider themselves Democrats, and 26.4% of conservatives are either Democrats or lean Democratic (n=2301 conservatives).

If you confine the analysis to students 18 or older in the 1972-2002 GSS, then 46.4% of conservatives consider themselves Republicans, 22.4% of conservatives consider themselves Democrats, and 30.6% of conservatives are either Democrats or lean Democratic (n=330 conservatives).

These attempts to stifle viewpoints are all too common on university campuses. It hard to believe that just 40 years ago, university campuses were perhaps the places in our society most open to the viewpoints of political minorities.

 
[Eugene Volokh, 1:31 PM]
THE PATRIOT ACT AND ARCATA, CALIFORNIA: According to the Washington Post, last month Arcata, California became "the first in the nation to pass an ordinance that outlaws voluntary compliance with the Patriot Act" (emphasis added). NPR introduced its story about this by saying that "Arcata is the first city in the country to pass an ordinance outlawing voluntary compliance with the Patriot Act." CNN: "The city has become the first in the nation to pass an ordinance telling town officials not to comply with the Patriot Act . . . ."

     Fox News: "The Patriot Act is running into resistance as some towns consider laws to forbid voluntary cooperation. Earlier this month, Arcadia, California, became the first in the nation to actually ban the Patriot Act." UPI: "Arcata's ordinance, which passed on a 4-1 vote last month and takes effect in May, instructs senior city managers to not get involved with any federal operations that invoke the Patriot Act." The San Francisco Chronicle: "Arcata, that tiny North Coast bastion of the robustly liberal, has quietly made itself the first city in the nation to outlaw voluntary compliance with the USA Patriot Act" (though it qualified this a bit later).

     Not so. The ordinance does not generally outlaw voluntary compliance with the Patriot Act. Rather, it says (emphasis added):

No management employee of the City shall officially assist or voluntarily cooperate with investigations, interrogations, or arrest procedures, public or clandestine, that are in violation of individuals' civil rights or civil liberties as specified in the Bill of Rights and Fourteenth Amendment of the United States Constitution.

The drafter of the ordinance echoed this in the NPR and CNN stories, saying that "our management employees should not cooperate in any way with federal officials enforcing the Patriot Act if that is unconstitutional or contrary to the Bill of Rights." So did the San Francisco Chronicle article, though several paragraphs after its "outlaw voluntary comparison" lead.

     The ordinance thus allows a wide range of voluntary cooperation, so long as the cooperation isn't unconstitutional; and, as various cobloggers of mine and I have argued, the Patriot Act is generally quite constitutional (though, like all laws, it may at times be applied unconstitutionally, and though a very few of its provisions may pose special constitutional problems). Since government officials already have a legal obligation not to act unconstitutionally, the ordinance thus does not create any new legal obligation, though it does provide a new means of enforcement -- prosecution for violation of a city ordinance -- and of course also makes a public statement. The City of Arcata might actually think that much of the Patriot Act is unconstitutional; according to the San Francisco Chronicle,

[T]he Arcata City Council approved an ordinance telling its management workers they cannot "officially assist or voluntarily cooperate" with any investigators trying to carry out what the city considers provisions of the Patriot Act that violate the Bill of Rights and the Constitution.

Which, city leaders said, is pretty much all of the act except the heading on the governmental letterhead.

But (1) the law doesn't bar cooperation with provisions that the city considers violate the Constitution, but rather bars cooperation only "where such procedure is in violation of . . . the Bill of Rights and Fourteenth Amendment," which would be up to courts, not the city, to decide; (2) the city leaders are quite likely mistaken on the constitutional issue (if the Chronicle's description of their sentiments is accurate); and (3) in any event, by only banning unconstitutional conduct, the ordinance bans only conduct that is already prohibited.

     Incidentally, while I'm not an expert on California statutory construction rules as applied to ordinances, my guess is that courts will infer a so-called "mens rea" -- guilty mind -- requirement, under which the ordinance will apply only if the government official knows that his conduct was unconstitutional, or at least knows there's a substantial chance that it's unconstitutional but blithely ignores this possibility (something that the law generally calls "recklessness"). The actual scope of this ordinance would thus be particularly small, because it would apply only to conduct that the government official knows is unconstitutional.

     Unless I'm badly mistaken on this -- and I'm pretty confident here -- some of the nation's top news organizations seriously misstated what the Arcata ordinance did; and if they had just read the ordinance itself, they would have seen the error. This isn't rocket science. The ordinance isn't in incomprehensible legalese. Couldn't news organizations do a little better? And how can we trust them on other matters, legal and otherwise, when they make such basic mistakes?

 
[Eugene Volokh, 11:29 AM]
WELL, WHAT A SURPRISE DEPARTMENT, PART TWO: My colleague Jonathan Zasloff writes, citing this Ha'aretz article:

The road map has been public for less than 48 hours, and Arafat has already broken it. The road map was exceptionally clear on the new structure of Palestinian security: only three agencies, all under the direct supervision of the Interior Minister, who reports to the Prime Minister. Arafat has now created a "National Security Council" with himself as chair, to oversee all security operations. As the Ha'aretz reporter accurately states, "In practice, the establishment of the council empties the new structure of the Palestinian security services of its content and derogates from the ability of Abu Mazen and Dahlan to implement security reforms."

If the Bush Administration does not respond swiftly and firmly to this direct flouting of the road map, the entire process is dead. US policy should be clear: it will withdraw the road map and refuse to engage in any negotiations unless the Council is immediately terminated. The US should also immediately send a new military and civilian aid package to Israel. Criminologists have long argued that it is the certainty and swiftness of punishment, not its severity, that count. Here's a chance to test the theory with Arafat, the Palestinian arch criminal. Anything less essentially condemns the region to more violence.

The interesting question at this point is not whether Arafat will do all that he can to subvert the road map (and thus subvert Abu Mazen). It is, rather this: is there anything that Arafat can do that will convince his European backers that he isn't interested in peace and is committed to terror? Or is it just that they don't care?

 
[Eugene Volokh, 11:28 AM]
MORE SPEECH RESTRICTIONS AT UNIVERSITY CAMPUSES: This is a private university, so it's not legally bound by the First Amendment; but most private universities take the view -- which is usually correct, I think -- that private universities ought to, as a matter of academic freedom, follow the same rules as public universities must follow as a matter of constitutional law. And if the facts are as this this AP article reports them to be, then the student government's conduct is clearly improper:

Four University of Miami conservatives say the student government is blocking them from starting a club and say the college's president, former Clinton Cabinet member Donna Shalala, has refused to intervene.

The students say they were told by student leaders that since the university already has a College Republicans chapter, there was no need for another conservative group. Shalala, who was Clinton's Health and Human Services secretary, has ignored a letter asking for help, the four women and their supporters say. . . .

"There's a difference between Republican and conservative," said Sarah Canale, 19, the would-be club's co-president. "But they kept telling us there's too much overlap with the College Republicans."

A university spokeswoman said Thursday that neither the school nor the student government would comment. . . .

They submitted an application to the student government committee that oversees clubs asking for recognition but were refused, they say. They continued meeting anyway, but learned when they tried to hold a support-the-troops rally during the Iraqi war that without university accreditation they could not advertise on campus, invite speakers or use school facilities.

They resubmitted a revised constitution to the club oversight board, trying to highlight that they were not interested in party politics. They were denied again. . . .

In response to the letter, the women were given another hearing before the club oversight committee. The meeting lasted 40 minutes and felt like an "interrogation," Canale said.

"We really think we made the point that we didn't overlap with the College Republicans," Canale said. "And even if we were, we feel like there's so many clubs on campus that overlap already, so the argument doesn't make a lot of sense at all."

There are approximately 175 clubs on campus and many of them have similar agendas, [Foundation for Individual Rights in Education] president Alan Charles Kors argued in his letter to Shalala.

"UM recognizes, rightly, that 'liberal' does not mean 'Democrat' ... ," Kors wrote. "Why, then, does your institution believe that 'conservative' necessarily means 'Republican?'"

But the letter appeared to have little effect, said Canale . . . .

Thanks to InstaPundit for the pointer.

 
[Eugene Volokh, 10:39 AM]
BLOGGERS AS JOURNALISTS? If I may offer a friendly amendment to Dan's claim, I agree that bloggers generally aren't reporters, in the sense of people who just aim to report the facts. But it seems to me that we're no different in many ways from opinion columnists, who mix fact, judgment, and argument.

     I'm interested in this partly because I've been wondering for a while how various laws that offer special benefits to the media -- for instance, the limited privilege that some states offer to reporters who refuse to reveal their confidential sources, or special press access to various locations (such as crime scenes), or the ability to avoid much or all defamation liability by publishing timely retractions, or the exclusion from certain political campaign expenditure rules -- would apply in a world where any of us can be a member of the media. (I'm generally not talking about First Amendment rules [except as to the controversial First Amendment reporters' privilege, which some federal courts have recognized], which usually apply equally to the media and to others, but rather about special benefits that the legislatures voluntarily provide to the media.) Would bloggers be able to take advantage of these rules? If someone e-mails you something, and then it becomes relevant to a lawsuit, may you refuse to turn it over, citing the reporter's privilege (if your state provides it)? What if the e-mail didn't have to do with a story you were already covering, but you argue that your blog covers a wide range of topics, and any e-mail is potential fodder for a blog post?

     Incidentally, if anyone has examples of real-life controversies that have raised this "Are bloggers 'media'" question -- whether or not they have come to court yet -- I'd love to hear them. I'm less interested in e-mail about general moral/political/philosophical/legal theory arguments about what the rules should be; but concrete stories (or specific caselaw that bears on the subject) would indeed be quite valuable.

 
[Eugene Volokh, 8:41 AM]
ASSAULT WEAPONS BAN: Jacob Sullum at Reason's Hit & Run writes:

The "assault weapon" ban is important as a precedent precisely because its justification is so slight. It suggests that you don't need a good reason to limit Second Amendment rights. It also invites further infringements down the road, as supporters take the critics' arguments to heart and start arguing that the ban is not broad enough. After all, it covers only a very small percentage of the guns used in crimes.

I'm actually not sure that the assault weapons ban does violate the Second Amendment (for complex reasons that I lack the time to go into, but that are indeed based on the very slight actual burden that it itself imposes on people's ability to be armed), but the general point is quite right. (The reason the justification is so slight is that, as Sullum points out, the law "ban[s] weapons based on little more than their militaristic appearance. As [Rep. Ron] Paul notes, the guns covered by the law are not true assault rifles, which are capable of automatic fire. The banned weapons are semi-automatic guns, firing once per trigger pull, that are neither especially dangerous nor especially favored by criminals.") And if you're inclined to pooh-pooh the slippery slope argument here, consider what Charles Krauthammer, a proponent of a total gun ban says:

In fact, the assault weapons ban will have no significant effect either on the crime rate or on personal security. Nonetheless, it is a good idea . . . . Its only real justification is not to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate confiscation.

 
[Eugene Volokh, 8:31 AM]
WOMANIZER: Shouldn't this mean "a surgeon who performs male-to-female sex-change operations"?

 
[Eugene Volokh, 8:14 AM]
KIDS AND GUNS: Reader William Sulik e-mails, referring to this post about CBS's "Kids and Guns" item including, in its first factoid, people up to age 24:

So according to CBS, President Clinton really did have sex with a Kid -- since Monica was 23 when they had intimate relations.

A kid and a juvenile, under the CBS approach.

 
[Eugene Volokh, 12:29 AM]
DANIEL DREZNER GUEST-BLOGGING TODAY AND MONDAY: I'm delighted to say that Daniel Drezner, a political science professor at the University of Chicago, will be guest-blogging today and Monday. Some of you may have read his own blog in the past; if you haven't, you should. (Even if you have, you still should.) We think that you'll much enjoy his contributions. Here are a few items from his self-introduction on his own blog:

Q: What do you know?

A: I can claim some genuine expertise on the utility of economic statecraft, the political economy of globalization, U.S. foreign policy, and Buffy the Vampire Slayer. However, as my wife is fond of pointing out, this narrow range of expertise does not prevent me from discussing with false confidence everything else under the sun.

Q: What�s your political affiliation?

A: I�m a libertarian Republican who studies international relations, which means I�m frequently conflicted between my laissez-faire instincts and my clear-eyed recognition that there is no substitute for nation-states in world politics. Just keep reading the blog, you'll get a pretty good sense of what I believe.

 
[Eugene Volokh, 4:48 PM]
THE FIRST AMENDMENT AT THE UNIVERSITY OF TENNESSEE (KNOXVILLE): Last year, I blogged extensively about an incident involving the Kappa Sigma fraternity at the University of Tennessee (Knoxville); some Kappa Sigma members went to a party as The Jackson Five, with their faces painted black. (It turns out, I'm told, that the students were freshmen from a small town in Tennessee called Jackson, and apparently thought it would be an amusing little joke.)

     This caused a furor; the national Kappa Sigma chapter suspended the fraternity, which apparently led to its automatic suspension by UT. So far, no constitutional problem -- the national chapter may impose whatever demands it pleases on its local chapters, and if indeed the UT has a content-neutral policy of recognizing only those fraternities that are in good standing with the national group, then UT isn't liable either. Unfortunately, UT administrators started threatening administrative punishment for the students and talking about how this incident showed the need for speech codes. Such punishment and such speech codes would be unconstitutional, but apparently nothing came of the talk. (See the initial post here, and also here and below.)

     Now, though, the University is apparently indeed violating the First Amendment. The national Kappa Sigma, I am told, has reinstated the UT chapter; but a University administrator wrote the following e-mail to the UT chapter's alumni advisor (emphasis added):

Attached is a document detailing recommendations for Kappa Sigma to address the blackface incident of last Fall. As we look into reinstating the chapter, meeting these recomendations will be necessary.

These recommendations do not address the alleged hazing incident. As our investigation of that incident progresses, we will keep you posted.

When you sign off on this portion, I will let Dean Collins, Dean Thompson, and VP Rogers know that we are ready to move forward.

If you have any questions, please feel free to call.

And here are the "recommendations" (emphasis added):

RECOMMENDATIONS FOR KAPPA SIGMA FRATERNITY

These recommendations are submitted in partial fulfillment of the terms of suspension for Kappa Sigma fraternity. This document is intended to identify specific strategies and programs that attempt to counteract some of the negative campus atmosphere observed in the wake of the �Black Face� Incident at The University of Tennessee beginning October 2002 and persisting until the present.

Mandatory Items:

1. Kappa Sigma will participate in a Diversity Training series of workshops during Fall 2003 semester. These workshops are intended for all greek organization chapters -- IFC and Panhellenic -- but are mandated for Kappa Sigma.

The workshops will be developed and facilitated by the Office of the Dean of Students. They will be under the direct supervision of the Fraternity Affairs Advisor and the Panhellenic Affairs Advisor.

* Kappa Sigma will be help market the Diversity Training workshops and will assist in recruiting all members of the greek community to participate.

2. Kappa Sigma will require its members to read The Color of Water by James McBride and participate in a discussion of the reading. This literary work is required reading for all incoming UT freshmen. Every entering freshman will participate in a faculty led series of discussions focused on the contents of this book during the first week of classes for Fall 2003. The Office of the Dean of Students, in conjunction with selected faculty, will also facilitate this discussion with the chapter.

Suggested Items:

3. Kappa Sigma should consider designating one of the executive officers of the fraternity as a liaison with the Black Cultural Programming Committee to identify programs focused on diversity and racial sensitivity awareness. Members of the fraternity should attend such programs whenever possible.

4. Kappa Sigma should consider developing a marketing campaign designed to demonstrate the benefits of diversity for the entire university community and also focus on how and why diversity enhances the Greek community at UT.

Such a marketing campaign would be very useful for IFC and Panhellenic and would enable the greek community to take a leadership role for all students at the university in promoting the benefits of diversity at The University of Tennessee.

     So here the university is, as a condition of recognition by the school -- recognition that, to my knowledge, is generally available to a broad range of student groups, and thus qualifies as a "designated public forum" -- imposing special burdens on the organization because of its members' past speech. That violates the organization's First Amendment rights, just as it would violate the organization's First Amendment rights to demand special behavior from groups whose members engaged in antiwar advocacy, or Communist advocacy, or criticism of the university administration. And remedying a "negative campus atmosphere" is not an adequate justification for imposing special burdens on people because of their speech.

     Now some of these requirements (for instance, reading a certain book or participating in certain workshops) may have been constitutional if they were imposed on all students. The university may require its students to go to certain classes or read certain books, even when the classes and books are aimed at inculcating a particular ideology. But it may not impose such requirements only on those students and groups of students that have engaged in disfavored speech in the past. (By way of analogy, a public university can certainly require all students to take a class on evolution -- but it can't require such a class only for those students who have expressed pro-creationism sentiments.)

     And one of the requirements -- that "Kappa Sigma . . . help market the Diversity Training workshops and will assist in recruiting all members of the greek community to participate" -- would also be unconstitutional even if it were applied to everyone. A public university may require students to take certain classes, and even give certain answers on the exam as a condition of taking those classes. But it can't require them, outside class, to engage in speech that promotes certain ideologies. (Again, imagine a public university requiring students, whether all or just some, to help market pro-patriotism or pro-war workshops.)

     The First Amendment violation is pretty clear here, it seems to me; but let me just close with a hypothetical for those who may not be persuaded. Say that some fraternity members go to a party dressed as, say, marauding American soldiers (or, for that matter, go to a party and a burn a flag). People are outraged at the implied viewpoint that American soldiers are dishonorable. The fraternity is suspended, and the University then tells the fraternity:

To be reinstated, you must participate in a series of partriotism workshops (because you've acted in an unpatriotic manner in the past); you must help market these patriotism workshops to others; and you must read and discuss a book that we hope will teach you the true value of patriotism.

Clear First Amendment violation, yes? Well, if it is, then the First Amendment is just as violated no matter what viewpoint the government wants to disfavor, and what viewpoint it wants to inculcate.

 
[Eugene Volokh, 2:34 PM]
"GUNS IN AMERICA" AND DEFENSIVE GUN USES: So here's a riddle for you: How many times does the entire CBS "Guns in America" presentation (see below for the link) mention defensive uses of guns?

     Defensive uses; those are the reason why lots of people own guns, and they are a huge part of the debate about guns in America. In two of the school shootings for which CBS provides blurbs in the "School Shootings" section (Pearl, Mississippi and Edinboro, Pennsylvania), the shooters were actually apprehended by law-abiding citizens using guns of their own. Studies estimate the number of defensive uses in the country at 60,000 to 2.5 million per year (yes, the range is that broad; it's hard to figure these things out). You know, those defensive uses. How many times does the report point to either specific defensive gun uses, or statistics on defensive gun uses? (I don't count the statement that "In 1995, 1 in 12 students in a national survey reported carrying a firearm for fighting or self-defense at least once in the previous 30 days," which says nothing about actual uses, only carrying for the purpose of use; refers to conduct that's largely illegal, since it presumably involves people who are mostly too young to get concealed carry licenses; and combines carrying for offensive and defensive purposes.)

     It would be unsporting to give the answer away, but I will give you a hint: If you answered "1," your answer would be too high.

 
[Eugene Volokh, 2:09 PM]
ANOTHER ITEM FROM THE CBS "GUNS IN AMERICA" SERIES (see below for the link): The "Kids and Guns" icon will take you to a page that promises "more facts on guns and juveniles"; and then the first icon there tells you that "For 10 to 24 year olds, firearms are the second leading cause of death -- trailing only unintentional deaths (which include motor vehicle accidents and drownings)."

     Hmm; why "24"? 18-to-24-year-olds don't seem to be kids, and they don't seem to be juveniles. In fact, the 10-to-17-year-olds make up a bit less than 21% of the 10-to-24-year-old range -- the remaining 79% is 18-to-24-year-old adults. (Naturally, the lion's share of firearms deaths even among juveniles is among older juveniles, 15-to-17-year-olds; once again, my sources for this are the CDC's invaluable WISQARS.)

     Likewise, some of the other items under the "more facts on guns and juveniles" / "Kids and Guns" include ages above the age of majority -- 24, 20, 19. One page reports that "Among young people 10 to 19 years old, there were 1,308 suicides with guns in 1996"; might it be relevant that 589 -- nearly half of the 1,308 -- were among 18-to-19-year-olds (i.e., adults)?

     Now I don't want to overstate the problem here -- when the pages report the numbers, they do candidly report the age range. But the large ranges obscure the reality that patterns of gun deaths and gun use vary greatly from 10-to-14-year-olds to 15-to-17-year-olds to 18-to-24-year-olds. And I am curious why the front pages promote the information as involving "kids" and "juveniles," and then the back pages give statistics in which huge fractions of the deaths were actually deaths of adults.

 
[Eugene Volokh, 1:50 PM]
GUN DEATHS: CBSnews.com has an interesting interactive feature on "Guns in America" -- it's on the right-hand side of the screen here (ignore the main story, which is unrelated to the subject). Here's what it says at the start of the "Gun Death & Laws" item:

The number and rate of firearm related deaths in the United States have declined in the past decade. Still, 28,663 people died of gunshot wounds in 2000 and the national rate of deaths by firearms per 100,000 residents was 10.4.

When you click on each state ("click on each state to see the number of people killed by firearms"), it gives you the number (e.g., for Vermont, "Firearm deaths, 2000: 55 (63 in '98) Rate per 100,000: 9.2").

     Here's my question -- when you read that "28,663 people died of gunshot wounds in 2000," how many did you think were homicides? It turns out that, even if you include accidents (fewer than 1000), the number was a bit over 12,000. The remainder (16,586) were suicides (16,049 by adults).

     Might it have been helpful for CBS to make this clear to people? Suicides, after all, might be, in many people's eyes, morally different from homicides -- do you, for instance, feel the same sense of tragedy when you hear about a homicide (assume it's not in self-defense) than when you hear about a suicide? If you don't, then wouldn't breaking out the suicides as a separate number be more helpful than silently combining suicides and other deaths? Also, suicides seem particularly unlikely to be sensitive to changes in gun laws (and the section, judging by its "Gun Death & Laws" title, seems to be suggesting a connection between gun deaths and gun laws) -- among other things, as I've mentioned before, since one can commit suicide even more easily with a shotgun than with a handgun, even a perfectly enforced total handgun ban doesn't seem at all likely to change the homicide rate much.

     So the numbers are technically accurate -- but quite misleading, unless most readers will quickly understand that the "died of gunshot wounds" number includes suicides as well as homicides and accidents. (The later "Who's At Risk?" section, to CBS's credit, does separate different kinds of gun deaths, but obviously some people will see the "Gun Deaths & Laws" section but not the "Who's At Risk?" section.)

 
[Eugene Volokh, 1:34 PM]
GAY-BASHING THE MAFIA BOSS: An interesting story:

Fearing they would be the laughingstock of New York's underworld, a mafia turncoat testified in court Wednesday that he killed his mob boss because he engaged in gay sex.

Anthony Capo, a former soldier for the New Jersey-based DeCavalcante family, which is often described as the real-life "Sopranos," said he killed John "Johnny Boy" D'Amato after finding out about his secret life, the New York Post reports.

"Nobody's gonna respect us if we have a gay homosexual boss sitting down discussing La Cosa Nostra business," Capo told jurors in Manhattan federal court. . . .

 
[Eugene Volokh, 11:45 AM]
"PEOPLE OF": Composing the previous post reminded me of a term I came up with for whiteys like me:

People of pallor.

Unfortunately, a quickie google search revealed that I wasn't the first to think this up, but I thought I'd pass it along anyway.

 
[Eugene Volokh, 11:40 AM]
MORE THREATS OF CENSORSHIP: Prof. Francis Boyle at the University of Illinois, Urbana Champaign, is an indefatigable opponent of this Administration; he's the drafter of the Draft Impeachment Resolution Against President George W. Bush, and has spoken out often and stridently against both the war in Afghanistan and in Iraq. In the process, he condemns the Administration for various (generally unnamed) violations of the First Amendment:

1. The Draft Impeachment Resolution cites the President's supposedly "violating the First Amendments rights of the free exercise of religion, freedom of speech, peaceable assembly, and to petition the government for redress of grievances" (this is just before a complaint about the "totalitarian Federalist Society").
2. A speech entitled "No War Against Afghanistan!" says "Let me conclude by saying that we still have our first amendment rights, despite Ashcroft's best efforts."
3. A Daily Illini article from last Fall quotes him as complaining that "The climate [at the law school] is very threatening to professors of dissent."

     Curiously, though, a reliable source just passed along to me an e-mail that Boyle sent around last November, which seems to demonstrate a slightly different attitude about the First Amendment:

Subject: To:Department of Justice, Office of Civil Rights:"Boyle Bashing"

It has already been reported in national news media sources, that I have filed a Complaint with the Department of Justice, Office of Civil Rights, which is currently pending. Any "Boyle bashing" will be filed with DOJ/OCR in support of that Complaint, including this message. That could create problems for people dealing with a Character and Fitness Committee who want to be admitted to the Bar somewhere. Francis A. Boyle Professor of Law

Interesting -- a professor threatening to try to jeopardize the careers of people (presumably students, since they're the ones who would most care about Bar admission) if they criticize ("bash") him. (The law school dean, to her credit, promptly condemned Boyle's actions.)

     This is not, however, the first example of Prof. Boyle's somewhat limited view of free speech. As I mentioned in an earlier post, Prof. Boyle had also sent around (in 1997) a mass e-mail calling for law professors "to prevent[] the appointment of Federalist Society Members to our faculties," a policy that would violate basic academic freedom principles, and, if engaged in by public schools (such as Prof. Boyle's own), would violate the First Amendment. And note also the basis for the Complaint that Boyle's e-mail refers to (from Reason):

Boyle, described by legendary activist Philip Berrigan as "a lawyer of the quality of Thomas More or Gandhi . . . the most competent and impassioned advocate of international law in the U.S.," claims he experienced discrimination when he objected to the bar crawls graduate students hold every St. Patricks Day. "A bar crawl in honor of St. Patrick, the Patron Saint of Ireland, and one of the great figures of Western Judeo-Christian Civilization, is completely sacrilegious," he says.

Boyle�s objections, he says, made him a target. "It�s clearly a hostile work environment for me," he says. "I�ve been subject to ridicule by students and student organizations. This is a hostile environment based on my race -- I�m of Irish nationality and a citizen of the Irish Republic -- and on my religion -- I�m Catholic."

Indeed, Boyle claims the harassment got so bad that he complained to the U.S. Department of Justice�s Civil Rights Division, noting that "it doesn�t cost me anything" to have the government investigate his claims. Yet when pressed for details, Boyle becomes as vague as Van Morrison lyrics. "I got nasty e-mails," the professor says, giving no hint of their contents. "They ridiculed me for being Catholic and ridiculed Catholicism. Two years ago, they even made a T-shirt ridiculing me." Was this ridicule based on religion or ethnicity, or do Boyle�s students and colleagues just dislike him? Without examples, it�s impossible to say.

Apparently "the First Amendments rights of . . . freedom of speech" do not, in Prof. Boyle's book, extend to people who want to ridicule Catholicism, or, for that matter, their professors. "Free speech for me," as Nat Hentoff's book title says, "but not for thee."

 
[Eugene Volokh, 10:50 AM]
GETTING BLOG POSTS BY E-MAIL: A reader e-mailed me asking how she can get blog posts delivered by e-mail; so I thought I'd post again the instructions. We have over 40 people subscribed that way, and it seems that the feature is working for them. My favorite response from a reader:

I absolutely love the e-mail updates! Not only I can forward your arguments to other interested parties, but also I can archive and store them for future use in any manner I see fit. I am so used to the e-mails that I rarely visit the URL. . . .

PS: I must ask you to keep the e-mail updates for one very selfish but personal reason. It is easier to read your posts in my [law school class] in e-mail format than opening my browser! Being caught laughing and web surfing in a seminar . . .was most unpleasant and I do not wish to repeat it.

If you'd like to use this option -- and I can see reasons why some people would like it, and others wouldn't -- send a message containing just the text

SUBSCRIBE VOLOKH-L X Y

to the e-mail address LISTSERV at LISTSERV.UCLA.EDU . If you need to unsubscribe or your e-mail address is about to change just send a message containing just the text

UNSUBSCRIBE VOLOKH-L

to the same address. And if you'd like to get all of a day's posts in one message, send a message containing just the text

SET VOLOKH-L DIGEST

to the same address; and to undo that, the message SET VOLOKH-L MAIL should do the trick.

     Unfortunately, I'm swamped enough that I probably won't be able to provide any manual help with the list, but I hope that the automatic subscription and unsubscription results will do the job (it seems to have so far). Also, just a warning: This is only an experiment; if this ends up causing trouble, we might have to discontinue this, and return to a Web-only format.

 
[Eugene Volokh, 9:35 AM]
ANOTHER TIP FOR GETTING MORE BLOG READERS: Pejman has an interesting suggestion. But that's not why I've been blogging about that subject, I swear!

 
[Eugene Volokh, 6:08 AM]
MAPS: So here's one thing that bugs me about some fantasy and science fiction books -- if you're creating a whole new world (or using little-known parts of the old one), and you're going to be talking about the heroes voyaging here and traveling there, and about why the war needs to be fought between Beeblebrox and Trantor, because otherwise the Barrayarans would intervene, why not include a map? Sure, this isn't the most important thing. Sure, the characters and the dialogue are more significant. Sure, some readers will figure it out just from the prose. But sometimes it can make things a lot clearer, and make it a lot easier for the reader to get into things (which is why some books do indeed include such maps). And how hard can it be?

 
[Eugene Volokh, 12:26 AM]
SOMETIMES, LEGISLATORS AREN'T AS DUMB AS THEY'RE MADE OUT TO BE: The Associated Press reports that

The Alabama House voted against a bill Tuesday that would have removed a ban on sexual devices, such as vibrators, from the state's obscenity law. The ban on sexual devices was added at the last minute when the obscenity law passed the Legislature in 1998.

A federal district judge in Birmingham has twice ruled that the ban is unconstitutional. The first ruling was overturned by the 11th Circuit Court of Appeals and the second ruling has been appealed to the appeals court.

The sponsor of the bill, Rep. John Rogers, D-Birmingham, said because of the court ruling, the obscenity law is unenforceable as long as it contains the ban on sex toys. . . .

"What you just did is make our obscenity law illegal. You voted for obscenity,'' Rogers shouted at lawmakers.

TalkLeft takes Rep. Rogers' claim at face value, saying, before its quote from the AP article:

Alabama Legislators Render State's Obscenity Law Illegal

Legislators in Alabama aren't too bright. On Tuesday, they voted against a bill legalizing sex toys. What's dumb about that? Read on.

InstaPundit picks up on the TalkLeft story.

     As best I can tell, though, Rep. Rogers was quite mistaken -- the federal district court's ruling does not make the whole obscenity law unenforceable; rather, the federal court only invalidated the sexual devices ban, and left the rest of the obscenity law untouched. The district judge's final judgment reads (emphasis added):

FINAL JUDGMENT

In accordance with the memorandum opinion entered contemporaneously herewith, plaintiffs' motion for summary judgment (doc. no. 76) is granted, defendant's motion for summary judgment (doc. no. 77) is denied, and that portion of Alabama Code � 13A-12-200.2(a)(1) (1975) (Supp.2001) which makes it "unlawful for any person to knowingly distribute, possess with intent to distribute, or offer or agree to distribute ... any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value" (hereinafter, "the subject statutory provision") is declared unconstitutional.

Accordingly, it is ORDERED, ADJUDGED, and DECREED that defendant, the Attorney General of the State of Alabama, and any agents, attorneys, investigators, or law enforcement officials acting under his direction, supervision, or control, together with any other law enforcement officers or officials within the State of Alabama acting in concert with defendant, directly or indirectly, or who acquire knowledge of this judgment, be, and they hereby are, enjoined and restrained from enforcing the subject statutory provision.

The full first sentence of Alabama Code � 13A-12-200.2(a)(1) reads "It shall be unlawful for any person to knowingly distribute, possess with intent to distribute, or offer or agree to distribute any obscene material or any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value"; the ellipsis in the first paragraph that I quote above thus represents the words "any obscene material or." The district judge thus specifically did not enjoin the enforcement of the prohibition on distribution of obscene material, only of obscene devices. And that makes sense, because the constitutional challenge that the judge accepted was a challenge to the distribution of obscene devices.

     I oppose bans on sex toys and on obscene material (setting aside child pornography, which is governed by a different set of laws); but presumably Rep. Rogers' colleagues support such bans. They probably thought there was a good chance that the federal district judge will be overturned again by the court of appeals (and I think there is a good chance of that), so the existing ban may well survive if they leave it on the books. And, contrary to Rep. Rogers' statement, their leaving the sex toys ban untouched won't affect the enforceability of obscenity laws.

     If I've misread the district court's order (Williams v. Pryor, 220 F.Supp.2d 1257 (N.D. Ala. 2002)), and Rep. Rogers is right all along, please let me know. But given what I've seen, I think that the Alabama legislature isn't as "dumb" as some people suggest.

 
[Eugene Volokh, 5:22 PM]
CONTRACEPTIVES AND ADULTERY: Hit & Run's Ron Bailey writes:

Hoover Institution fellow Stanley Kurtz defends Senator Rick Santorum by pointing to the rise of divorce rates and adultery since the 1960s and suggests that the growing tolerance of homosexuality is undermining marriage. That as may be, but Kurtz completely ignores THE elephant in the room -- the pill. Surely, effective contraception had far more effect on things like divorce rates and adultery than a growing tolerance for homosexuality. I wonder what Kurtz' position on Griswold v. Connecticut is?

 
[Eugene Volokh, 4:13 PM]
FEAR IS GOOD: Apropos David Post's "Reverse Tinkerbell Effect", check out this Slate piece on SARS. (The more people fear SARS, the less cause there'll be to fear it, and vice versa.)

 
[Eugene Volokh, 3:34 PM]
SCALIA ON CAMBRIDGE: Mark Stancil reports the following from today's argument in Virginia v. Hicks, "which concerned a Richmond municipal housing authority policy allowing the authority's director wide discretion to bar nonresidents from the premises."

Respondent Hicks, who previously had been informed in writing that he was not permitted on authority property, was charged with criminal trespass when a police officer observed him in the Whitcomb Court housing development. . . . One issue raised at oral argument was whether a state can effectively designate certain streets or sidewalks "private," by ceding them to a separate authority or otherwise barring the public. Justice Scalia pushed Hicks' counsel to concede that, for example, the street leading up to the door of the Virginia Governor's mansion is not "public" in the true sense of the word. After counsel sidestepped the issue by calling the pavement in question a "driveway," Breyer chimed in with the observation that there are things in Cambridge (Mass., I assume) called "private ways," but no one really understands what that means. As the ripple of laughter subsided, Scalia brought down the house with his retort that "there are a lot of things up in Cambridge that no one understands what they mean." . . .

UPDATE: Matthew Yglesias helps out Justice Breyer with an explanation of "private ways" (courtesy of a reader of his). It's actually pretty interesting.

 
[Eugene Volokh, 2:15 PM]
SYMBOLIC EXPRESSION: A reader writes:

I don't entirely disagree with you, but consider this: If desecrating a flag is protected speech, wouldn't a war veteran's actions in beating the hell out of the person desecrating the flag also be protected speech?

Well, no. No-one is saying that all conduct that conveys a message is constitutionally protected.

     Rather, as I mentioned in my earlier post, the government generally may not restrict conduct (or speech) when it's doing so precisely because of the message that the conduct or speech send; but it generally may restrict conduct (or, often, speech) when the reason has nothing to do with the message. Thus, the government may ban beatings, or for that matter may ban the burning of things in places where the burning may lead to a brushfire. These restrictions aim at harms that have nothing to do with the message being sent, and they apply equally without regard to whether the conduct sends a message -- beating someone is harmful even if the beating conveys no ideology whatsoever. But flagburning bans apply to flagburning precisely because it sends an offensive or harmful message.

     There may also be another important distinction in play here, as the Supreme Court has hinted in some cases, and as Justice Scalia urged in the nude dancing case -- the distinction between conventionally expressive conduct (waving flags, burning flags and other symbols, and so on), which has become part of our accepted symbolic language, and conduct that usually has nothing to do with expression. Under that test, burning a flag is also different from beating someone. But in any event, whether just under the first test or both the first test and the second, flagburning bans are quite different from assault laws.

 
[Eugene Volokh, 1:46 PM]
"SUPPLEMENT TO THE FIRST AMENDMENT": Not only is there one, according to amazon.com, but apparently I wrote it!

     The official and less confusing name (though one that may be too long for quickie online listings) is, of course, "The First Amendment: Problems, Cases and Policy Arguments" (2002 Supplement). (Just calling textbooks "The First Amendment" or "First Amendment Law," followed by a subtitle, is pretty standard in the law biz.)

UPDATE: Reader Alexander Sudnik also points out something I completely missed when checking out that page:

Customers interested in Supplement to the First Amendment may also be interested in:
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Wide variety of brand name Supplements at 70% off. Affiliate.
www.vitacost.com

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Good prices and great customer service. All major brands carried!
www.activemuscle.com

 
[Eugene Volokh, 12:48 PM]
FLAG-BURNING AND SYMBOLIC SPEECH: Clayton Cramer writes:

Eugene Volokh has something to say about this perennial error. My view is that the notion that flag burning is a form of protected speech is a bit bizarre (along with smearing your naked body with chocolate sauce on stage), but you know what? I want left-wing crazies to burn the American flag. It's just one more way for them to marginalize their ideology with the vast majority of Americans. . . .

I think Clayton is right on the political point, but I don't think it's at all bizarre to view flag burning as a form of protected speech. Our culture has lots of conventionally understood symbols that communicate much like words communicate. A cross (which is protected under the Free Speech Clause as well as under the Free Exercise Clause) is one example; so are black armbands, uniforms, and flags. The Supreme Court has long treated the display of such symbols as constitutionally protected speech (the first such case was handed down in 1931, only a decade or so since the first Supreme Court cases that really focused deeply on the freedom of speech), and I think rightly so: Their function is the same as the function of words.

     The same, it seems to me, applies for burning flags, burning crosses, burning or hanging effigies, and so on. They too are forms of communication, and when they are restricted precisely because of the effects of the message that they communicate -- because the message is offensive or evil or undermines the meaning of a symbol -- it seems to me quite proper to treat restrictions of this communication the same way we treat restrictions of verbal communication. (If they are restricted for other reasons, for instance because of a general prohibition on burning things in a public park where the burning may start a brush fire, then those restrictions are generally constitutional.)

     Nor does the textual objection -- flagburning isn't "speech" or "press" -- seem to me particularly significant. Handwriting isn't "speech" or "press" in the narrowest sense of the term; we wouldn't normally call the singing of the Star-Spangled Banner "speech"; a picket sign isn't "speech" or "press" in the narrowest sense. Should courts really hold that therefore such communication is constitutionally unprotected?

     "Speech," it seems to me, ought to be innterpreted to cover communication through well-understood languages of symbols, whether sign language, Morse code, ASCII encoding, or the waving or burning of flags -- communication that is functionally identical to communication through the human speaking voice. When the government restricts this communication precisely to suppress the message being communicated, it seems not at all bizarre to treat that as tantamount to a speech restriction.

 
[Eugene Volokh, 12:28 PM]
MIXED-CASE RSS POST TITLES: I'm thinking of switching our post titles (such as the "MIXED-CASE RSS POST TITLES:" text at the start of this post) so they come out in mixed-case in our RSS feeds, though they'll still be upper-case on the blog itself. If you know of any problem with doing that, please let me know in the next day or two.

     Thanks to reader Kim Scarborough for the suggestion, and for the HTML code that will upshift the titles for the blog (<span style="text-transform: uppercase"><$BlogItemSubject$></span>). That's our policy, by the way -- want a formatting change, give us the code to do it.

 
[Eugene Volokh, 12:24 PM]
FLAG PROTECTION AMENDMENT IS BACK: Apparently the House Subcommittee on the Constitution is having a "Legislative Hearing and Markup on H.J. Res 4, the 'Flag Protection Amendment,'" next Wednesday (May 7). Here's my short piece on "What�s Wrong With the Flagburning Amendment"; a version of it was published in the L.A. Times a couple of years ago:

"Congress shall have power to prohibit the physical desecration of the flag of the United States, and the flying of the Confederate flag."

OK, so that�s not exactly how the proposed flag protection amendment reads -- I�ve added the Confederate flag phrase. But this little thought experiment helps show that the flag protection amendment is a bad idea.

After all, burning the U.S. flag and flying the Confederate flag are similar in many ways. Some people argue that flagburning shouldn�t be protected by the First Amendment because it isn�t "speech." Well, burning one flag and waving another are pretty similar on that score. I think both are traditional terms in our political language, and should be constitutionally protected; but if I�m wrong, then both should be unprotected.

Of course, burning the U.S. flag deeply offends many people. But so does waving the Confederate flag, even when it�s done by individuals and not by state governments. Many American boys died defending the U.S. flag -- and many of them died fighting against the Confederacy. Burning the U.S. flag is often an anti-American symbol. Likewise, the Confederate flag was a symbol of treason and rebellion against the lawful American government.

It�s true that many people see the Confederate flag as not just as a symbol of the Confederacy, and of a slave state rebellion prompted by the election of an anti-slavery President: They also see it as a symbol of other things, such as Southern pride. But likewise some people burn the U.S. flag not because they hate America, but only because they want to protest what they see as the American government�s errors. Like most symbols, flagburning and flagwaving often mean subtly different things to different people.

So one danger of the anti-flagburning amendment is the slippery slope. If the amendment is enacted, even without a clause for the Confederate flag, many people will be energized to try to ban other symbols that offend them. Think of it as "censorship envy" -- if my neighbor gets to ban symbols he dislikes, why shouldn�t I get to do the same? This kind of misplaced desire for equality of repression is a powerful psychological force.

Of course, it�s likely that the slippery slope will be resisted here, and people will remain free to wave the Confederate flag. But America would be even more endangered by a selective ban on flagburning alone than by a broader ban: Such selective suppression will bitterly divide us, rather than uniting us.

Right now, when people -- mostly blacks -- are deeply offended by what they see as a symbol of racism and slavery, the legal system can powerfully tell them: "Yes, you must endure this speech that you find so offensive, but others must endure offensive speech, too. Many Americans hate flagburning as much as you hate the Confederate flag, but the Constitution says we all have to live with being offended: We must fight the speech we hate through argument, not through suppression."

But what would we say when flagburning is banned but other offensive symbols are allowed? "We in the majority get to suppress symbols we hate, but you in the minority don�t"? "Our hatred of flagburning is reasonable but your hatred of the Confederate flag is unreasonable"?

If you were black and saw the Confederate flag as a symbol of slavery and racism -- and millions of blacks do, whether you agree with them or not -- would you be persuaded by these arguments? Would you feel better about America because of them?

America is different from most other countries, and even from most other democracies. In America, all ideologies are protected, even those that the majority thinks are evil.

Why is this right? Because the First Amendment was drafted and interpreted by people who intimately understood cultural, religious, and political conflict, and who knew how calls for censorship could launch the most bitter of culture wars.

The Amendment is a truce: "I won�t try to suppress your ideas, if you don�t try to suppress mine." And the flagburning amendment risks shattering this truce.

 
[Eugene Volokh, 12:14 PM]
LYNDON LAROUCHE IS BACK IN THE NEWS: Clayton Cramer reports that dozens of current and former Democratic elected officials -- plus former Surgeon General Joycelyn Elders -- are urging that LaRouche be invited to a nationally broadcast May 3 Democratic Presidential debate.

 
[Eugene Volokh, 11:10 AM]
HANGOVER-FREE VODKA? From Arellanes.com, via Matt Welch:

A Bulgarian company has begun producing a vodka that contains vitamins C, B1 and B2, honey, milk and other bioactive ingredients. The mixture allegedly minimalizes the possibility of a hangover . . . .

According to the head of Vinprom, the vodka, called "Shock" doesn't even burn when flowing with full force down the gullet. The drink contains vitamins C, B1, B2, honey, milk and other bioactive incredients that help the body absorb alcohol, and therefore it helps reduce the unwanted side effects of drinking, wrote the Bulgarian newspaper Dn�vnik.

This raises the question of whether the new drink even tastes like vodka. The newspaper is tactfully silent on that question. . . .

 
[Eugene Volokh, 10:27 AM]
SEXUAL HARASSMENT LAW: Jacob asks an excellent question below. Here's the short answer: The university's policy fairly closely tracks the rules of workplace harassment law, but several courts have held that these rules cannot be applied to student speech in public universities; in fact, the leading speech code cases (all of which have struck down speech codes) have generally dealt with speech codes that were phrased in terms much like those used by UCLA. So as I argue in my memo, the policy is unconstitutional (Part C) and certainly not legally required (Part D).

     I have argued, in several articles (the substance of which has been organized, edited, updated, and generally gussied up here), that even workplace harassment law is in part unconstitutional; but I realize that this is an uphill legal argument. The argument that these speech codes are unconstitutional as applied to university students, though, is extremely well-supported.

     Finally, while I generally sympathize with institutions who are caught in legal double binds, and who are therefore willing to do a lot to avoid even those lawsuits that they're likely to eventually win, it seems to me that universities should take a more aggressive view. They don't just have an "institutional responsibility to avoid lawsuits"; they also have an ethical institutional responsibility to protect academic freedom, even if that means fighting some lawsuits -- plus of course a constitutional responsibility to avoid First Amendment violations. And I think that we have a responsibility, and certainly a right, to at least increase the public relations cost of instituting such speech codes, to show universities that instituting speech codes isn't necessarily the most cost-effective approach.

 
[Eugene Volokh, 9:58 AM]
UCLA PLANNING TO INSTITUTE NEW SPEECH CODE: I regret to say that my very own institution, UCLA, is planning to institute a new speech code, under the guise of a "sexual harassment policy." This policy doesn't just limit sexual extortion, unwanted sexual advances, physical contact, or threats. Rather, like many such policies, including several that have been struck down by federal courts, it risks punishing a wide range of speech -- allegedly sexist political statements, sexually themed jokes, sexually themed art, and other speech. And it would potentially do this in student newspapers, in public places, in Internet discussions, and in a variety of other places.

     The old sexual harassment policy was problematic enough -- by saying

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: . . .

C. Such conduct has the purpose or effect of unreasonably interfering with an individual's performance or creating an intimidating, hostile, or offensive University environment.

it prohibited an ill-defined but potentially quite broad range of "verbal . . . conduct" that "creat[ed] an . . . offensive University environment." This is definitely not the narrow precision that the First Amendment demands of speech restrictions. (Just to make it clear, I have no constitutional objection to the old or the new policy as applied to nonspeech conduct, or to constitutionally unprotected speech, such as threats. My focus is to the policy as applied to constitutionally protected speech.)

     The proposed new policy essentially retains this definition (it clarifies that the policy applies only when the speech is "severe or pervasive" enough to create an offensive University environment, but those terms are again vague enough that they don't help much, for reasons I explain in my memo), but also makes quite clear that it is intended to be a speech code, potentially applicable to a wide range of jokes, statements, art, and other speech, as in fact such policies have indeed been applied in other universities. (I know some defenders of the policy bristle at the term "speech code," but a speech code is clearly what it is.) I have posted a fairly detailed memo explaining the breadth and vagueness of the policy, and citing cases that show that the policy violates the First Amendment.

     The UCLA administration tells me that it's extended the comment period for the policy until Monday, May 12. If you're a UCLA staff member, and want to submit comments, you should e-mail thompson at chr.ucla.edu; if you're a UCLA faculty member, you should e-mail mfractor at conet.ucla.edu. Unfortunately, the cover letter doesn't explain where UCLA students -- or representatives of UCLA student organizations, such as student newspapers -- should submit e-mail, so presumably you'd have to use one of these addresses.

     I'm hoping that a strong enough protest from the UCLA community will keep this misguided, unconstitutional, and unnecessary policy from being enacted, and may even lead UCLA to repeal its old policy. It's pretty sad that we still have to be fighting this battle, but we do.

 
[Eugene Volokh, 8:59 AM]
JEWS AND SEX: According to Robert T. Michael et al., Sex in America (1994) -- a seemingly quite comprehensive study of sexual practices of noninstitutionalized Americans age 18 to 59, 12% of all respondents had 0 sex partners in the last twelve months. This was roughly the number for the irreligious; for mainline Protestants; for conservative Protestants; for Catholics; and for people of other religions. But among us Jews, the fraction was 3%. As Glenn Reynolds says, "Heh."

     (Yes, since the sample size was about 3500 people, and Jews are roughly 2% of the population, the margin of error is pretty darned hefty there.)

 
[Eugene Volokh, 6:57 AM]
MORE SUGGESTIONS FOR INCREASING BLOG READERSHIP: Reader Matthew Morse passes along some other advice -- it's not for everyone, and I don't follow parts of it myself, but I think many people might find it helpful:

In a recent post of yours . . ., you field the question of how to increase your blog readership, and in particular how to get the attention of "famous" bloggers.

I started my blog in January. I had a change of focus in mid-March. Since then, I've been getting more attention from others. I feel like I've hit the vertical part of the growth curve in the last two weeks. As someone who feels like he's on the way up, I have some thoughts.

1. Pick a topic. Good topics include anything that you are likely to launch into unprovoked speeches about. If it's gotten to the stage
where talking about it annoys your SO, relatives, and friends, that's a good sign. Make it as narrow as possible. Narrow topics give focus.

2. Own the topic. Find every blog and news source on the topic you can, and read them all. If there's an angle that no one else is covering that you find interesting, work it. Narrow topics work in your favor here as well.

3. Be prolific. Don't overdo it, but the more you write, the more likely people will feel they will miss something if they don't come back.

4. Be link-happy. If you come late to a discussion, link to everybody else. You'll get links just for your collection of links. Beyond that, linking to other people feeds their egos and makes them want to link back.

5. Syndicate. I see every new post in my aggregator every day. I only read posts from people without RSS feeds when I click on the bookmark. Readers are lazy. Most blogs can generate feeds for you, but if yours doesn't, do it by hand. I do.

6. Include comments. It makes your readers feel like participants. It also strokes your own ego when you get comments from people you don't know.

7. Important! Don't worry about it. The more time you spend worrying or checking blog popularity contests, the less time you spend blogging. The same is true for self-promotion. Let them find you because you're blogging, not because you tell them about yourself. This also means that anytime you come across yourself in another blog, it's a pleasant surprise. I've started finding myself on other people's blogrolls. The curious thing is that some of them list me by first and last name, and my last name doesn't even appear on my blog.

 
[Eugene Volokh, 11:15 PM]
OH, DRAT: I was planning on working tonight on a short article that I have to write, but the day's mail brought Sean McMullen's Voyage of the Shadowmoon, which turns out to be as engrossing as Souls in the Great Machine. I am weak, and after all it's days until the deadline. Memo to myself: Do not bring the book to school tomorrow, even "just to read for a couple of minutes as I'm walking from my car."

 
[Eugene Volokh, 5:48 PM]
STILL MORE ON REPORTERS' BLOGS: Reader Kirk Parker writes:

I see it from exactly the opposite point of view as [Linda] Seebach. What if I read a reporter's blog, and thus learn more of their actual views, and then don't always find that slant in their reporting? Shouldn't this (hopefully) common scenario actually enhance the objective-wannabe newspapers' credibility?

 
[Eugene Volokh, 5:47 PM]
BRAINSTORMS, HANDICAPS, ETC.: From The Telegraph (thanks to Betsy Newmark for the pointer):

The term "brainstorming" has become the latest target of political correctness, according to a charity.

Trainee teachers are being told to avoid the word for fear of offending pupils with epilepsy. Instead they are being advised to use "word storm" or "thought shower".

However, charities working with epilepsy say "brainstorming" is not offensive. "We had several inquiries from teachers about it so we did a survey of our residential home," said Gemma Baxter from the National Society for Epilepsy.

"We also contacted people with epilepsy in the community and the overwhelming response was that 'brainstorming' implies no offence to people with epilepsy, and that any implication that the word is offensive to people with the condition is taking political correctness too far."

People found it more offensive that the question was being asked of them, she said. . . .

I never quite know what to make of these newspaper reports; perhaps this is just one person's folly that's being blown out of proportion precisely because it seems so foolish. Still, past experience with other words makes such stories seem more plausible: I've been told a couple of times, for instance, that "handicapped" is supposedly offensive -- see this "Sensitivity Guide: Avoiding Dehumanizing or Offensive Labels and Terms" from a Kentucky government agency -- because it originated from handicapped people begging with cap in hand (false). "American Indian," some complain, is offensive, even though the most recent survey I saw (1997, I believe) showed that most American Indians prefer that over "Native American" (and if the objection is that "American Indian" is not literally accurate, the same is true of "Native American"). The list, unfortunately, goes on -- and it would be too bad if the perfectly fine "brainstorming" were being added to the list, too.

 
[Eugene Volokh, 4:25 PM]
THE BBC'S TERM FOR OSAMA BIN LADEN: Emphasis added:

Saudi Arabia is home to some of Islam's holiest sites and the deployment of US forces there was seen as a historic betrayal by many Islamists, notably Osama Bin Laden.

It is one of the main reasons given by the Saudi-born dissident -- blamed by Washington for the 11 September attacks -- to justify violence against the United States and its allies.

Oh, yeah, that's what it was -- dissent. And Timothy McVeigh was doubtless engaged in civil disobedience. Appalling. (Thanks to Andrew Sullivan for the pointer.)

 
[Eugene Volokh, 12:55 PM]
LAWYER CARTOONS: There are some great ones at Stu's Views; highly recommended.

 
[Eugene Volokh, 10:35 AM]
RECESS APPOINTMENTS OF JUDGES: Some interesting stuff from two leading constitutional law professors -- Randy Barnett urges recess appointments as a way to get judges confirmed, while Larry Solum expresses some skepticism about the politics and policy of the proposal, and promises some constitutional analysis of this tomorrow.

     I have no firm opinion on the matter myself, but I do think it's worth remembering a wise line from Jonathan Rauch, albeit from a subtly different context: "For all its New Testament rhetoric, Washington is an Old Testament city."

 
[Eugene Volokh, 10:27 AM]
MORE ON REPORTERS' BLOGS: Linda Seebach of the Rocky Mountain News writes:

Speaking from inside what Glenn calls "Big Journalism" I'd like to come to the defense of the Hartford Courant and its decision not to let reporters have blogs. What are they vulnerable to? Loss of credibility.

You know that a substantial part of the public believes that their daily newspapers deliberately slant news stories to conform to the ideological predispositions of their reporters/editors/publishers/corporate owners. I don't believe that is true on any large scale in the news departments of mainstream dailies, at least as to the "deliberately" part. Reporters and editors are trained to strive for fairness and balance in coverage, and when they fall short, as does happen, it's because they spend way too much time in the company of like-minded people.

Nonetheless, readers' discovering by way of a blog what their reporter's opinions actually are will confirm their worst fears, and it is not unreasonable of the paper to worry about that. Two blogs, of differing viewpoints, would be even worse than one blog, because every reader would find something to object to.

Note that I am speaking specifically of news reporters at papers that aim for balance. I doubt the editors of the Nation or the Weekly Standard would mind if their staffers had blogs; there, it would be an asset. Readers don't mind if sportswriters are fans of the teams they write about. I'm an opinion writer, and I could probably get permission to run a blog, if I wanted to work that hard, because I wouldn't say anything I wouldn't say in my column.

But news reporters? What do people think when they find out that Linda Greenhouse, who covers the Supreme Court for the NYTimes, attends rallies in support of Roe v. Wade? (She did, once.)

Now in one respect the public's concern is misplaced. The problem, to the extent there is one, is that reporters let their biases seep into what they write, and that problem is not made any worse if readers know what the biases are.

Lots of law-school professors blog. Do judges? Should they? When they give speeches, every word gets picked apart by law-school professors.

She follows it up with this:

[T]ravel writing generally falls under the heading of feature writing, and the expectations for objectivity in feature writing are somewhat more relaxed. If our Spotlight section does a piece on feng shui, the reporter is not expected to include comments from scientists pointing out that it is superstitious nonsense. But from the employer's point of view, making case-by-case decisions might be difficult to defend and not worth the hassle.

Anyway, he's a travel writer now; maybe next week he'll want to apply for the education beat.

Interesting points, and worth passing along.

 
[Eugene Volokh, 9:56 AM]
"INFRINGE ON THE RIGHTS OF OTHERS": Sasha Castel-Dodge writes (thanks to InstaPundit for the pointer):

Thought experiment

"I am entitled to __________ without interference from the government, if I do not infringe on the rights of others, and if I deem it necessary for my health, protection, personal safety or enjoyment, or that of my family."

Fill in the blank:

a) own/carry a gun
b) smoke a joint
c) have an abortion
d) watch a dirty movie
e) worship (or not) as I please
f) educate my children according to my personal values

I would agree with all six. What do other people think? And how does your choice of response place you ideologically?

I think this is an interesting argument, but my suspicion is that a huge amount of ideological division -- perhaps most such division -- comes not on the abstract proposition "I am entitled to __________ without interference from the government, if I do not infringe on the rights of others" but on the question of what constitutes "infring[ing] on the rights of others."

     This is clearest, of course, as to abortion, where the question is who counts as the rights-bearing "others." But it's also true as to educating children -- some people believe that children have a right to, for instance, learn certain things about sex, or learn the theory of evolution, and so on, while others disagree. It's likewise true as to discrimination (does it "infringe on the rights of others" if someone refuses to hire gays?), various economic regulations (does it "infringe on the rights of others" to supposedly exploit them by paying them too little, or demanding that they work too long), zoning (does it "infringe on the rights of" my neighbors if I build an office building that produces a lot of extra noise or traffic, or for that matter if I build a house that blocks neighbors' views), and so on. Of course, many people may have very definite views that some or all of these do not infringe on the rights of others -- but it's those views on how one defines others' rights, and not abstractions about "I am entitled to do what I like so long as I do not infringe on the rights of others," that generally decide the matter for them.

     Another range of ideological disagreement stems from the question of how direct the effect on others has to be to qualify as infringement. For instance, my driving drunk doesn't itself infringe your rights; does it follow that people should be free to drive drunk, at least until they cause an accident? Some say yes, but some say no, on the theory that driving drunk materially increases the chances of my injuring others. Likewise for a substantial range of other behavior, such as failing to immunize one's children, manufacturing dangerous chemicals in a residential area, and so on.

     This disagreement tends to be at the heart of many (though not all) debates about gun possession and carrying, drug use, consumption of pornography, and even religious worship -- people believe (rightly or wrongly) that this behavior indirectly causes harm to others' rights, from people shooting others in a moment of anger, people driving while stoned or committing crimes while on more serious drugs, people being more likely to engage in sex crimes, adultery, disease-causing promiscuity, or sex discrimination because of their consumption of pornography, people being more likely to engage in certain crimes or other rights-violating acts because of the religion that they've been taught, and so on. Again, many people might reject these arguments on factual grounds, because they believe that the behavior doesn't cause any material injury to others' rights, even indirectly, or because they believe that prohibiting this behavior would cause more injury to people's rights than tolerating it would. But again the debate would be over those issues, or over the question of how direct the harm must be to constitute "infringement," and not over the abstract question whether "I am entitled to do what I like so long as I do not infringe on the rights of others."

     Some debates, it is true, may be influenced in some measure by one's view on this abstract question; I don't want to claim that it has no relevance at all. But my sense is that usually, in today's America, the key issues have to do with which "others" qualify (fetuses? animals?), what their rights are (right not to be exploited? right to enjoy their property free of extra traffic, noise, and pollution? right not to be discriminated against? right not to be libeled?), and what qualifies as "infringement."

 
[Eugene Volokh, 9:20 AM]
LOTS OF BAKING SODA (about 64 oz.) on my carpet right now -- or there was when I scattered it and started running the Roomba. Will see what happens when I come back. Possible problem with the experiment: Maybe 64 oz. of powdery dreck is too much for the Roomba to fit, and since I suspect that it's an unusually large amount of stuff, the Roomba might still be useful even if it can't suck up that much. If necessary, I'll rerun the experiment with less soda, though still scattered in different parts of the room. Always happy to invest effort in the name of Science.

 
[Eugene Volokh, 9:17 AM]
LITERALLY: My friend and fellow constitutional law professor David Bernstein points to this article that doesn't just use "literally" to mean "figuratively," but actually uses the term "quite literally" to mean "figuratively":

Now at least five stores offering satellite dishes have sprouted around the shopping district, selling 400 to 500 channels for about $350. That's a pricy sum, but in a country craving a window on the outside world, Salih's satellites are selling, quite literally, like hotcakes.

Quite literally? People are buying quite literally as many satellite dishes as they are hotcakes? (Or is it just that Iraqis don't eat that many hotcakes?)

     Just to anticipate the messages from inconsistency-hunting prescriptivists, yes, at some point "literally" will completely lose its traditional meaning, and become an all-purpose intensifier (consider what happened to "cool," "bad," or for that matter "fucking"). It may have already happened now. But I never said that people aren't entitled to be annoyed by certain usages, or for that matter amused by them.

 
[Eugene Volokh, 8:50 AM]
O'REILLY FACTOR: If all goes as planned -- and in the news biz, it's impossible to predict -- I should be the O'Reilly Factor today, defending the Fourth Circuit's decision holding that the Virginia Military Institute supper prayer violated the Establishment Clause.

 
[Eugene Volokh, 5:56 AM]
STATISTICS ON HOMOSEXUALITY: Just ran across American Sexual Behavior: Trends, Socio-Demographic Differences, and Risk Behavior, by Tom W. Smith of the National Opinion Research Center (updated 1998, based on the General Social Survey). I'm not generally up on the research in this field, so I can't tell whether this is consistent with other data, an outlier from the other data, or the main source of the data; but my understanding is that these people generally have a pretty good reputation.
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