[Eugene Volokh, 3:52 PM]
Israel: My colleague Jonathan Zasloff passes along the following:

The next time someone tells you that Israel isn't a liberal democracy, have them read this, from Ha'aretz, June 13, 2003:

Tens of thousands people gathered Friday evening at Umm al-Fahm football satdium, to attend a mass demonstration called by the Islamic Movement northern branch. The organizers said they were expecting 100,000 people from across the Arab sector to attend.

The demonstration takes place exactly one month after the arrests of 15 of the movement's senior leadership, including the head of the movement, Sheikh Ra'ad Salah. . . .

Israel Police has announced that its main contribution was to be to position forces at the entrance to the town, and direct traffic toward the stadium.

Last Sunday, Tel Aviv District Court extended by 12 days the remands of five senior members of the organization, as some 200 supporters demonstrated outside the courthouse ahead of the hearing. The five -- including Salah and Dr. Sulieman Agbariya, mayor of Umm al-Fahm -- were allegedly involved in transferring foreign funds through
Israel to Hamas knowing that the money would be used to help the Islamic group's terrorist activity.

It would be interesting to see what the public reaction would be if a American group, whose leaders were under indictment for actively assisting Al Qaeda, held a public rally at a football stadium attacking the United States government for putting the "Arab public in danger." They should, of course, be allowed to do so.

But here is the question: can you imagine a similar sort of rally taking place in ANY Arab country? Under the Palestinian Authority?

No thoughtful observer would deny that Israeli Arabs (or "Palestinian Israeli citizens" as many of them call themselves) suffer unacceptable discrimination in Israel (although it should be mentioned that the social and economic gaps between Muslims and non-Muslims is far narrower in Israel than it is in any European country). But the next time someone tries to deny that Israel is a free society, keep this in mind.

 
[Eugene Volokh, 5:21 AM]
28 years ago, on Friday, June 13, 1975, our parents brought Sasha and me out of the Soviet Union.

 
[Eugene Volokh, 11:19 PM]
Michael Kinsley on economic liberty: Michael Kinsley writes in Slate about liberty -- mostly about the Patriot Act and similar things -- but closes with this paragraph:

Americans are not so innately freedom-loving that we would never let it dribble away without noticing. I can prove this because it actually happened, within the adult lifetimes of anyone over about 50. On August 15, 1971, more or less out of the blue, President Nixon declared a freeze on wages and prices. Legislation authorizing this had passed Congress the year before, with little controversy. The freeze evolved into a system of formulas about who could get paid what, requirements about filing forms with the government and keeping records and posting notices, all enforced by a growing bureaucracy of wage and price cops. The controls lasted a couple of years at full strength and then faded away over the next couple.

The notion that the government could tell everyone from General Motors to a baby-sitting teenager what they could charge -- and did so -- seems shocking in retrospect, at least to me. There was no real national emergency. It was part of a cynical re-election strategy to gun the economy while holding inflation temporarily in check. But at the time, controls were not just accepted but popular. When they disappeared, even those (like me) who had opposed them found it strange and, at first, unnatural. You mean, anyone can just charge whatever they want? How does that work? The analogy isn't perfect. The right to set your own price isn't as profound as the right to express your own political opinion. But it is, if anything, even more a part of every citizen's daily life. And yet when they took it away, we freedom-loving Americans didn't even miss it.

Well, I'm delighted that Michael Kinsley believes that economic liberty is a fundamental part of people's liberty. Certainly libertarians today would howl loudly about this, as would many small-government Republicans (though not the heirs of the Nixon Republicans). I wasn't there, and haven't studied the history of the era, but I strongly suspect that libertarians and small-government Republicans of the era were shocked and appalled, and objected loudly.

     Of course, the notion of economic liberty -- the right not to have the government dictate your wages and prices, the right to enter and run your business on your own terms, the right to hire, be hired, fire, or quit with little government supervision, and so on -- has not been terribly popular with liberals for many decades. (I'm speaking here not just of a constitutionally secured liberty, but just a liberty that ought to be protected by law, and that the political process generally shouldn't take away.) Unfortunately, as the Nixon Administration shows, it has been unpopular with some ostensible conservatives, too, though this just shows that Nixon wasn't that conservative on economic matters. I'm glad to hear that Michael Kinsley supports economic liberty, and I hope that it's a harbinger of its increasing popularity with the center (which is where I generally place Kinsley). More people should be shocked by wage and price controls, rent controls (a form of price control), and many other similar prohibitions.

 
[Eugene Volokh, 8:37 AM]
Harm-facilitating speech: Another reminder for me to finish writing that article on the First Amendment and harm-facilitating speech that I've been working on for years now -- this issue keeps coming up all the time, on the Internet and off it. Usually it involves crime-facilitating speech (e.g., teaching people how to make bombs, grow drugs, commit contract murder, infringe copyright, and so on), but sometimes it facilitates other harms, such as torts, successful attacks by military enemies (that's the famous hypothetical about a newspaper publishing the sailing dates of troop ships), or suicide. Here's the latest:

The instructions downloaded from the Internet were explicit, and, according to police, followed precisely by a 52-year-old St. Louis woman in taking her own life June 2.

Printouts from the Web site left nearby described how to use helium to cause asphyxiation, exactly as she did. This is the Web site's recommended method. . . .

The suicide victim would not have killed herself but for that content, St. Louis Circuit Attorney Jennifer Joyce said last week. She wants to pursue voluntary manslaughter charges against the person responsible for providing that information. It is a novel legal tactic and one that faces several hurdles. . . .

Information about how to commit suicide is already available in books. The most famous one is the 1991 bestseller "Final Exit,'' published by a leader of the euthanasia movement. Now the Internet -- and its far reach -- is a player. What was once taboo or hard-to-find can be tracked down in an instant with a search engine. Type in the right words and hundreds of sites appear. Google even has a formal directory for sites listing methods for suicide.

Few cases of Internet-inspired suicides have been documented in the United States. But it is a troubling development for mental health experts, who see these Web sites as having a dangerous allure to someone who is thinking about taking his or her own life. So-called suicide sites already have prompted alarm in other countries, like Britain, where the government announced in March it is investigating the feasibility of censoring sites that promote suicide. . . .

Missouri is among 35 states that have criminalized assisted suicide, what is commonly thought of as a physician giving lethal drugs to a terminally ill patient. It is under this law that prosecutors are considering charges in the St. Louis woman's death. . . .

I'm skeptical about the causation claim -- "The suicide victim would not have killed herself but for that content" -- partly because there are so many other highly reliable ways of committing suicide, and there's a pretty good chance that the victim would have used those if she didn't know about the helium, though of course there's no way of knowing for sure.

 
[Eugene Volokh, 8:24 AM]
Solicitors: I'm off today to speak on Slippery Slopes at the State Solicitors Conference in beautiful Oklahoma City. State solicitors are generally (though it varies from state to state) the state-level equivalents of the federal Solicitor General -- they're typically in charge of the state's appellate litigation, especially before the U.S. Supreme Court and state supreme courts. It's a relatively new office for many states to have, but my understanding is that it's gotten more popular in the last several decades.

     Three of the people who clerked at the Court the year that David Post and I did are state solicitors (Gary Feinerman [Illinois], Nate Forrester [Alabama], and Brian Morris [Montana]); I'm told at least two of them will be there, one more reason that I look forward to the trip. Hope to blog a bit from the hotel tonight, though much depends on how sleepy I am.

 
[Eugene Volokh, 2:23 AM]
Iain Murray guest-blogging: Please welcome back Iain Murray of the Competitive Enterprise Institute and The Edge of England's Sword (one of the most dramatic blog names I've seen), who'll be guest-blogging today and much of the day tomorrow. Iain's main interests are in the use and abuse of scientific and statistical information (among other things, he wrote the Encyclopaedia Britannica's item on the use of statistics in the gun control debate), and in what the Anglosphere countries can learn from each other. Iain is reachable at blogmail at iainmurray.org.

 
[Eugene Volokh, 4:46 PM]
More privacy vs. free speech, and free speech wins. As the court put it, "while 'there is some justification for the complaint . . . as to the conduct of this newspaper reporter,' the courts 'do not sit as censors of the manners of the Press.'" For reasons generally described here, I think that's right. Thanks to How Appealing for the pointer.

 
[Eugene Volokh, 4:43 PM]
Duty to rescue: Another interesting, thoughtful, and readable opinion from Judge Posner, this time on when people have an obligation to try to help others who are in danger. I mention this because the case is worth reading, and also because it gives me a chance to again plug my Duties to Rescue and the Anticooperative Effects of Law (special bonus: though it's a law review article, it's unusually short). Thanks to How Appealing for the pointer.

 
[Eugene Volokh, 3:15 PM]
"Landlord Snubs Al-Jazeera":

Qatar-based al-Jazeera is a 24-hour news network that has drawn praise for being more independent than most Arab media -- and criticism, especially in the United States, for showing video of American POWs during the Iraq war and for its perceived sympathy to Saddam Hussein.

The network wants to sublease 17,000 square feet of studio space from a television production company in a K Street office building. But landlord Cafritz Co. denied permission for the sublease, describing al-Jazeera and its television production arm in a letter as "potentially being a target for people who do not understand or do not agree with its business principles and philosophies of those of its ownership."

Conus Communications Co., which is trying to sublet the space to al-Jazeera, sued Cafritz in D.C. Superior Court last month, seeking a court injunction to allow the sublet.

Conus says its lease with Cafritz at 1825 K Street NW says the landlord cannot unreasonably refuse a sublease so long as it meets several conditions, which it argues al-Jazeera does. . . .

There are more interesting details in the story.

 
[Eugene Volokh, 4:06 PM]
Larry Lessig's copyright reregistration mandate proposal, and the Takings Clause: A week ago I pointed people to Larry Lessig's proposal to broaden the public domain:

We have launched a petition to build support for the Public Domain Enhancement Act. That act would require American copyright holders to pay $1 fifty years after a work was published. If they pay the $1, the copyright continues. If they don’t, the work passes into the public domain. Historical estimates would suggest 98% of works would pass into the pubilc domain after 50 years. The Act would do a great deal to reclaim a public domain.

I thought it was an interesting idea, but expressed a concern: "I think that the forfeiture for nonpayment of the registration fee may constitute a taking of property, and may thus put the federal government on the hook for compensation, at least in some cases." I had e-mailed a law professor friend of mine who supports the proposal, and he acknowledged that there might be a Takings Clause issue there, but thought it would be worthwhile for Congress to pay the (likely quite modest) required compensation in those cases; so I felt comfortable airing this tentative concern.

     My further research, however, shows that my concern was unfounded, at least as a matter of existing constitutional law. Texaco, Inc. v. Pond, a 1982 Supreme Court case, specifically held that the government may indeed require that owners of old property interests (there, mineral rights) periodically register their claims, and if they don't register them, the interests would be forfeited. This seems quite analogous to Larry's proposal.

     I'm still not completely sure that such a registration requirement would be entirely fair to the copyright owner -- it is pretty harsh for the government to take away your property because you failed to comply with such a requirement; in tax cases, for instance, the government may sell your property for nonpayment of taxes, but at least it acknowledges the duty to give you the leftover proceeds (if any) once the taxes are recouped. But it's not unconstitutional under current law. The fact that this is current law, and the skies haven't fallen, eases my slippery slope concerns. And there are indeed good policy arguments for clearing away those property interests that aren't really being exploited by the owner, and are just interfering with the potentially valuable behavior of others.

     Note that my objection, incidentally, was in the first place only to the retroactive imposition of the $1 requirement. For new copyrights, Congress can generally set up the terms under which the property is given; my objection was to the imposition for copyrights that were awarded without such a requirement (or a comparable one, such as the pre-1976 Act renewal requirement.)

     So on balance, I still think Larry's proposal is interesting; I'm not completely persuaded by its merits, but I think it's definitely worth discussing. It seems highly unlikely to be enacted -- but that likelihood itself depends on how effectively defenders of a broad public domain organize politically, and how well they sell their agenda. That's one reason that discussions of these proposals can be quite helpful to the pro-public-domain cause, even when the proposals at first seem politically implausible.

 
[Eugene Volokh, 12:53 PM]
Bushism of the Day / Thatcherism of the Day: Here's today's Slate "Bushism of the Day":

"We are making steadfast progress." -- Washington, D.C., June 9, 2003

And the problem is . . .? "Steadfast" did originally mean "standing firm, not giving ground," and still sometimes has a connotation of not changing (rather than either progressing or regressing). But my New Shorter Oxford tells me the more common modern meaning is "unshaken, constant, unwavering." "Steadfast progress" thus means "constant, unwavering progress," with the connotation (or so it seems to me) of a constant, unwavering advance in the face of obstacles (the sorts of things that might cause one to waver). And this fits well with the context of President Bush's remarks -- the American administration of Iraq, a situation that does call both for American steadfastness and progress:

And we talked about the need for our coalition to continue to make steadfast progress in Iraq so that the people of Iraq will be able to eventually run themselves. And we are making steadfast progress."

     A quick LEXIS and google search reveals that "steadfast progress" has indeed been used by various people in this very sense. Perhaps the Bushism authors think that Bush meant "steady progress" and just misspoke; but I see no evidence for this assumption on their part. It seems to me likely that Bush intentionally meant progress that isn't just steady, but steadfast in the sense of not wavering.

     If, however, Slate wants to call this a Thatcherism of the Day, then I, as a fan of Margaret Thatcher, would be happy to accept the term (and President Bush might, too). Consider this UPI story from May 18, 1983:

Prime Minister Margaret Thatcher, promising to reduce taxes, inflation and unemployment, launched her election campaign Wednesday with a sharp denunciation of the opposition Labor Party's ''extreme'' policies. . . .

''The choice before the nation is stark: either to continue our present steadfast progress towards recovery, or to follow policies more extreme and more damaging than those ever put forward by any previous opposition,'' the prime minister wrote in the manifesto.

 
[Eugene Volokh, 7:49 AM]
Preservation grants and churches: My Wall Street Journal column on this is up. Here are the first paragraphs:

Imagine that the National Gallery had a policy of buying only secular art. Pretty foolish, we'd think: The history of art is intertwined with religion -- you can't assemble great art collections while excluding religious works. Until this year, though, the Department of the Interior had a similarly exclusionary policy for historically and architecturally important buildings.

The National Historic Preservation Act provides funds to help repair landmarks. In exchange for the money, the building owner promises to give the public substantial access, and to keep repairing the building for 50 years to maintain its historical integrity. The act essentially lets the government buy a preservation easement in the buildings, to maintain our cities as living museums of history and architecture. To its credit, Congress provided the funding for a wide range of historic buildings, whether or not the buildings have religious uses. But for decades, the executive branch excluded churches, synagogues and other religious sites.

Two weeks ago, the Bush administration eliminated this exclusion, and rightly so. . . .

The piece goes on to respond to the Establishment Clause objections to such programs; for a broader defense of the theory that equal treatment of religion doesn't violate the Establishment Clause, see this article of mine from a couple of years ago.

 
[Eugene Volokh, 5:41 AM]
Embargoes: Slate has a nice piece explaining what it means for publishers to "embargo" a book or a study; but the concluding paragraph is a bit incomplete:

But why do newspapers and magazines abide by a book embargo? For one thing, they have to, legally; in 1983 after The Nation published 300 words from Gerald Ford's then-forthcoming memoir, the publisher sued the magazine; the Supreme Court ruled that the magazine was guilty of copyright infringement.

Copyright law may often require publishers to abide by the terms of an embargo when they want to quote an author's specific expression; but copyright law doesn't prohibit them from reporting juicy facts using their own words, and probably doesn't prohibit them from engaging in very short quoting (a sentence or two out of a book, for instance). Publishers may have other legal theories in such cases (e.g., a "hot news misappropriation" claim), but those theories are quite unlikely to work, so long as the newspaper account only extract facts or very short quotes, and so long as the newspaper didn't contractually promise to honor the embargo.

 
[Eugene Volokh, 9:06 PM]
Drat -- another blogger bug: Blogger seems to be omitting the posters' name at the start of each post; the problem seems to be with Blogger, not our template. Hope it magically clears up soon, just as it magically appeared.

 
[Eugene Volokh, 5:08 PM]
A troubling sort of property: I recently read an article that criticized recent steps -- such as the TRIPS agreement -- by which rich countries have pressured poor countries into protecting intellectual property. Now the general issue about whether rich countries should do this is a complex one; but the issue raised by one of the epigraphs with which the article starts is not. The epigraph is from an article that's available here; the article was apparently written by an activist in the Philippines in response to an argument that "copying licensed software is a form of stealing":

If it is a sin for the poor to steal from the rich, it must be a much bigger sin for the rich to steal from the poor.

Don't rich countries pirate our best scientists, engineers, doctors, nurses, and programmers? When global corporations come to operate in the Philippines, don't they pirate the best people from local firms? If it is bad for poor countries like us to pirate the intellectual property of rich countries, isn't it a lot worse for rich countries like the US to pirate our intellectuals? In fact, we are benign enough to take only a copy, leaving the original behind; they are so greedy they take away the originals and leave nothing for us.

Let's think for a moment about how this argument goes: The rich countries are "steal[ing]" and "pirat[ing]" people from poor countries. "Stealing" or "pirating" something means taking something that's owned by someone else. The only way that American companies' hiring foreign employees can be "stealing" or "pirating" is if those employees are some other person's (or country's) property.

     There are plausible arguments both for and against treating expression or ideas as intellectual property. But the case against treating people as property was, I had thought, pretty universally accepted -- I was apparently mistaken.

 
[Eugene Volokh, 1:54 PM]
A nice story from the Washington Post:

As undercover assignments go, posing as a teenage girl online to catch pedophiles has its share of challenges for the typical FBI agent.

Should he ever capitalize words in instant messages?

Is it okay to say you buy your clothes at 5-7-9?

And what about Justin Timberlake? Is he still hot or is he so two years ago?

For those investigative details, the FBI calls on Karen, Mary and Kristin -- Howard County eighth-graders and best friends.

During the past year, the three have been teaching agents across the country how to communicate just like teenage girls, complete with written quizzes on celebrity gossip and clothing trends and assigned reading in Teen People and YM magazines. The first time the girls gave a quiz, all the agents failed. . . .

 
[Eugene Volokh, 9:51 AM]
Jack Balkin on my Academic Legal Writing book: "Th[o]rough! . . . Pleasing! . . . Cicero! . . . Frenzied!" Well, maybe that's not exactly the most apt pull quote; you should probably just read Jack's post itself (which is about various things, including rhetoric, ethics, and the book) to get the gist. Jack, for those of you who don't know, is a professor at Yale Law School, and an excellent writer.

     If his post moves you to buy the book, you can get a personalized copy from me, or a normal copy from amazon.com.

 
[Eugene Volokh, 9:35 AM]
Gil Milbauer has moved off blogspot; update your links accordingly.

 
[Eugene Volokh, 9:32 AM]
Tyler Cowen: I'm delighted to report that my friend Tyler Cowen, an economics professor at George Mason University, has agreed to join The Conspiracy. Among other things, Tyler is the author of In Praise of Commercial Culture and Creative Destruction: How Globalization is Shaping the World's Cultures, Director of the Mercatus Center at George Mason, and the author of the indispensable online Ethnic Dining Guide to the Washington, D.C. area, which I often used when I was living in D.C. in Fall 2001 (see this Washington Post article about the guide and about Tyler). Look forward to many great posts from Tyler about all his areas of interest.