[Eugene Volokh, 7:32 PM]
Go Bruins! There are two UCLA people among the 11 latest Presidential Medal of Freedom recipients: John Wooden and James Q. Wilson.

 
[Eugene Volokh, 4:28 PM]
ClearType looks so much nicer! I've been using the Windows XP ClearType option for a couple of days now, both at the office and on my laptop at home, and I like it very much. Try it out -- there's nothing to download; all you need to do is activate one (admittedly hard-to-find) Windows option: See here for the directions.

 
[Eugene Volokh, 12:24 PM]
More on the French and e-mail: A couple of people e-mailed me to point out that the term "courriel" is quite popular in Quebec, and that this is part of why the French government is adopting it. Sure -- the original newspaper article that I link to said that the term was popular in Quebec. I don't think, though, that this undermines my point: It would still be a pretty big change in France from the way things are now done in France and is an example of the French government imposing significant cost and effort on Frenchmen (though, as I mentioned, not all Frenchmen but, according to the story, just people who write things for government agencies). The fact that the Quebecois already do things this way doesn't much reduce that cost or effort.

     One person has also e-mailed me to say that the AP story was mistaken, and the "courriel" usage is not required, even for government officials. Well, if the AP got it wrong, so did the Agence France Press, July 9, 2003: "The French government, in a bid to turn back the tide of English words in the field of technology, has banned its civil service from using the term 'e-mail' instead of its approved French equivalent, the culture minister announced Wednesday. All government ministries, websites, publications and documents must now use 'courriel' -- a shortening of 'courrier electronique' (literally: electronic mail) -- when they are referring to the messages sent via the Internet, the ministry said in a statement. . . ." Other news sources seem to confirm this.

     I have also heard doubts that the French government sometimes prohibits the use of English terms even by some nongovernmental agencies. My original post made clear that this is not so as to courriel, which is apparently only being urged for government agencies as a substitute for the prohibited "e-mail"; but it did say that "the French language police sometimes tr[ies]" "to punish nongovernmental entities for using" foreign terms. A bit of research confirms this: According to the Washington Post, June 28, 1994, "Culture Minister Jacques Toubon has pushed legislation through the Senate and National Assembly that imposes up to $ 1,800 fines on those using foreign terms in official, commercial or journalistic contexts when a French equivalent exists."

     Moreover, according to that story, "the government recently published a Dictionary of Official Terms of the French Language as a guide for imposing fines. Compiled by 'terminology commissions' at government ministries, it sets forth the appropriate words for Americanisms like joystick, label, lifting (a word meaning face lift that Americans never use) and cordless phone. Proper translations: manche a balai, etiquette, restylage and the unwieldy poste telephonique sans cordon." Perhaps this source -- and others that say pretty much the same thing -- is mistaken; but it does lead me to think (at least until I see some contrary evidence) that the original post was correct.

 
[Eugene Volokh, 4:49 PM]
A bit more on "e-mail": My New Shorter Oxford tells me that "mail" originates from . . . old French ("male," a variant of "malle," which means bag or trunk). True, the "e" is from Greek, but French borrows such words from Greek, too; I believe that "electron," for instance, is the same in French and in English.

     So they invade jolly old England, conquer the place, foist their lingo on the locals, and then when they get one of their own words back (and with a jaunty Greek combo), say "Ew! Tainted! It's got those English cooties!" Greg Goelzhauser has a suggestion that will teach them: Expunge all French-origin words from English. It's only 28% of the language, he points out, shouldn't be too hard.

 
[Eugene Volokh, 4:18 PM]
Press Release: U.S. Professor's Scientific Results Replicated, Within Margin of Error: OK, they were replicated by the same Professor, but that's just a quibble. Reader A. Sandler suggests that I retry my email (or e-mail) vs. courriel query by using "le google" to search French-language pages rather than French-domain pages. The results still show a stunning victory for email/e-mail, though the margin is just a little less -- over 3,180,000 vs. 260,000. Courriel is up to 8.18% of e-mail, rather than the 4.63% that one gets if one surveys just .fr sites -- but the courriel pages still seem to be small pommes de terre.

 
[Eugene Volokh, 3:53 PM]
Hugh Hewitt Show: I'm on the Hugh Hewitt Show right now (in the middle of a break), talking about the UC restrictions on faculty-student dating, and whether they're consistent with Lawrence v. Texas. My tentative view: They are consistent with the right of sexual autonomy -- which, as I understand it, has been recognized under the California Constitution's explicit "right to privacy" guarantee even before Lawrence -- at least if they're read relatively narrowly, limited to situations where the relationships really seem likely to substantially harm the university or the students. If the policy is interpreted more broadly, to prohibit even relationships that are highly unlikely to lead to any serious problems, it might still conceivably be upheld as an, er, prophylactic measure, but it would at least face a more serious challenge.

 
[Eugene Volokh, 3:14 PM]
Satan discovered, and he's in Buffalo. How could I have missed this? That's what I get for not following sports. Thanks to reader Mike Robinson both for pointing this out, and for pointing out the internal (infernal?) identification number (see the URL) that ESPN gave him.

UPDATE: Reader Dan Lewis reports that the number comes from STATS. OK, whatever the sports mavens say.

 
[Eugene Volokh, 1:14 PM]
Federal district court dismisses challenge to the Nevada Supreme Court Order: The decision is here.

 
[Eugene Volokh, 11:18 AM]
Press Release: U.S. Professor Announces Scientific Study of French "Courriel" Decision: A google search for email or "e-mail" in the .fr domains reports "about 1,930,000" results. A google search for "courriel" in the .fr domains reports "about 89,300" results. Since all scientific studies benefit from having more numbers, I will also report that "courriel" has thus 4.63% the "penetration du market" (I just made that phrase up) of "email" and "e-mail." Une folie grande! Now that's science for you -- and fast.

 
[Eugene Volokh, 11:13 AM]
France Bans E-Mail: Well, to be precise, "e-mail":

Goodbye "e-mail", the French government says, and hello "courriel" -- the term that linguistically sensitive France is now using to refer to electronic mail in official documents.

The Culture Ministry has announced a ban on the use of "e-mail" in all government ministries, documents, publications or Web sites, the latest step to stem an incursion of English words into the French lexicon.

The ministry's General Commission on Terminology and Neology insists Internet surfers in France are broadly using the term "courrier electronique" (electronic mail) instead of e-mail -- a claim some industry experts dispute. "Courriel" is a fusion of the two words.

"Evocative, with a very French sound, the word 'courriel' is broadly used in the press and competes advantageously with the borrowed 'mail' in English," the commission has ruled. . . .

The 7-year-old commission has links to the Academie Francaise, the prestigious institution that has been one of the top opponents of allowing English terms to seep into French.

Some Internet industry experts say the decision is artificial and doesn't reflect reality.

"The word 'courriel' is not at all actively used," Marie-Christine Levet, president of French Internet service provider Club Internet, said Friday. . . .

I'm happy that at least the government isn't trying to punish nongovernmental entities for using this term (as I understand it, the French language police sometimes does try to punish nongovernmental entities for using foreign terms in some contexts, but this isn't so here); and of course, the government is entitled to choose what terms it uses in its own communications. Still, seems pretty unwise (and laughable) to me: Like "freedom fries," only much broader (as I recall, no-one was trying to ban the use of "French fries" throughout the U.S. government), more inconvenient, and more expensive.

 
[Eugene Volokh, 11:07 AM]
Pro-Palestinian Forum at Rutgers: The Rutgers administration and the New Jersey Governor are not canceling a pro-Palestinian forum that's scheduled for mid-October at the University (which is a public institution), despite claims that the event will be anti-Semitic.

     Sounds to me like the right decision -- in fact, the only constitutionally proper decision. The forum is being organized by a student group, and I've seen no evidence that the group was being given any special benefits by the University; as best I can tell, the group is just being given the same sort of access to university property and the same sort of funding as any other group (they get $1400 in student government funding, out of a total of about $500,000 being distributed to all sorts of student groups). The university has, I think, created what First Amendment law calls a "designated public forum" (the student group funding program and the right to use university property for group-organized events). Under Rosenberger v. University of Virginia (1995) -- and lots of other cases that discuss "designated public fora" -- the university may not exclude certain groups or programs because of their viewpoint.

     It may well be that the label "pro-Palestinian forum" (which is how news accounts describe this) doesn't tell the whole story, and that an opponent of the event -- Barry Honig, a state Senate candidate -- is correct that it would more accurately be called an "anti-Semitic and anti-American hatefest." I just don't know enough of the facts to be sure. But even if it is an anti-Semitic and anti-American hatefest, it's protected by the First Amendment. (Even setting aside the legal question -- for instance, if the same controversy had arisen at, say, Harvard or USC, which are private universities -- I think that the university should allow the forum, as a matter of academic freedom principles.)

     As I've often argued in the past as to other events, the government ought not give special sponsorship or endorsement to evil speech. Naturally, there will always be questions about what's evil and what's not, but the university is entitled to draw that line as to speech that it specially sponsors and provides special access to. But when the government opens up a forum for a wide range of speech -- whether this is done via student group funding, Post Office subsidies for the mailing of newspapers, tax exemptions for charitable contributions to educational or public advocacy groups, and so on -- it may not then impose viewpoint-based conditions on this broadly available benefit.

     Some newspaper stories on this event: "Rutgers defends students' right to hold pro-Palestinian forum", "McGreevey to support Rutgers on conference" (McGreevey is the New Jersey Governor), and "Jewish activists fight conference".

 
[Eugene Volokh, 10:33 AM]
Mayo v. Satan and His Staff: The "he's in Hell" eulogy lawsuit (see yesterday's posts) reminded some readers of this classic case. I reproduce it below, courtesy of this site; the case is indeed a real federal case, known for years to law students who need to do something to put off studying for exams:

--------------------------------------------------------------------------------

Misc. No.: 5357

UNITED STATES ex rel. Gerald MAYO

v.

SATAN AND HIS STAFF

United States District Court
Western District of Pennsylvania

54 F.R.D. 282
December 3, 1971


Gerald Mayo, pro se.

MEMORANDUM ORDER

Weber, District Judge.

Plaintiff, alleging jurisdiction under 18 U.S.C. § 241, 28 U.S.C. § 1343, and 42 U.S.C. § 1983 prays for leave to proceed in forma pauperis. He alleges that Satan has on numerous occasions caused plaintiff misery and unwarranted threats, against the will of the plaintiff, that Satan has placed deliberate obstacles in plaintiff's path and has caused plaintiff's downfall.

Plaintiff alleges that by reason of these acts Satan has deprived him of his constitutional rights.

We feel that the application to file and proceed in forma pauperis must be denied. Even if plaintiff's complaint reveals a prima facie recital of the infringement of the civil rights of a citizen of the United States, the Court has serious doubts that the complaint reveals a cause of action upon which relief can be granted by the court. We question whether plaintiff may obtain personal jurisdiction over the defendant in this judicial district. The complaint contains no allegation of residence in this district. While the official records disclose no case where this defendant has appeared as defendant there is an unofficial account of a trial in New Hampshire where this defendant filed an action of mortgage foreclosure as plaintiff. The defendant in that action was represented by the preeminent advocate of that day, and raised the defense that the plaintiff was a foreign prince with no standing to sue in an American Court. This defense was overcome by overwhelming evidence to the contrary. Whether this would raise an estoppel in the present case we are unable to determine at this time.

If such action were to be allowed we would also face the question of whether it may be maintained as a class action. It appears to meet the requirements of Fed.R. of Civ.P. 23 that the class is so numerous that joinder of all members is impracticable, there are questions of law and fact common to the class, and the claims of the representative party is typical of the claims of the class. We cannot now determine if the representative party will fairly protect the interests of the class.

We note that the plaintiff has failed to include with his complaint the required form of instructions for the United States Marshal for directions as to service of process.

For the foregoing reasons we must exercise our discretion to refuse the prayer of plaintiff to proceed in forma pauperis.

It is ordered that the complaint be given a miscellaneous docket number and leave to proceed in forma pauperis be denied.

UPDATE: Hey, Tim Sandefur beat me to it, by six days.

 
[Eugene Volokh, 10:09 AM]
Enjoy! A lunchtime conversation reminded me of a little-recalled item about the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

That's right -- if you're accused of a crime, you don't just have the rights; you shall enjoy them. So if someone asks you "When you were being tried, what did you think of your rights?," and you say "The whole process was really awful," you're acting unconstitutionally. The only constitutionally permissible answer is "I enjoyed them, thanks!"

     Oh, and don't even dream of asking whether the federal government's civil war debt should have been considered valid. After all, as section 4 of the Fourteenth Amendment tells us, "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned."

 
[Eugene Volokh, 8:29 AM]
A few words on publishing reader e-mail: I thought I might mention a few general thoughts about my guidelines on publishing reader e-mail (or excerpts from reader e-mail). These aren't necessarily my cobloggers' views, and I might not always adhere to these principles myself; but I just thought I'd mention them, in case readers find them interesting:

1. I generally assume that reader e-mail is intended for publication, unless the message explicitly says otherwise. Naturally, if you don't want the message published, please say so as prominently as possible (and more than once, if you want to be extra sure) -- I'd hate to inadvertently miss your request, and cause embarrassment all around.



2. If I publish an e-mail or part of an e-mail, I'll generally mention the reader's name, unless I'm criticizing the argument, in which case I'll tend to omit the name, just to keep the disagreement from seeming personal. (Sometimes I will include the name, if I think the disagreement is fairly mild, but often I won't.)



3. If I use someone's e-mail and include the sender's name, I'm always glad to also include a link to the sender's Web page; just please include the Web page address in your signature.



4. I will occasionally make minor corrections to obvious typos in reader messages; I will sometimes mark these corrections with [bracket]s, but sometimes I won't.



5. I'll tend to thank people by name if they send an interesting link that I use, or even make an interesting argument that I paraphrase; but if I get more or less the same item from a bunch of people, I'll often omit the individual credit.

In any case, these are just some general principles, which I'm sure I sometimes fail to adhere to, either deliberately or not.

 
[Eugene Volokh, 7:59 AM]
First the health benefits of alcohol, now this (and from the Washington Post, citing Reuters citing Real Scientists). And apparently the part about hair on your palms isn't right, either -- or, if it is, the better part of 3 billion men is doing a lot of surreptitious shaving. Thanks to Andrew Sullivan for the pointer.

 
[Eugene Volokh, 6:08 PM]
Las Vegas Sun and supermajorities: Reader Mark Garbowski points to this Las Vegas Sun editorial:

Listening to the hue and cry from the White House, one would believe that the Democrats are mercilessly pummeling President Bush's judicial nominees. The president and Republicans are fuming that the system for confirming presidential nominees is broken and that democracy itself depends on instituting immediate reforms.

The more accurate picture is that over the past two years the Senate has confirmed nearly 70 percent of Bush's nominees to the district and circuit courts. According to USA Today, vacancies on federal court benches are at their lowest level in 13 years.

It's true that Democratic filibustering is holding up the nominations of two judges -- Texas State Supreme Court Judge Priscilla Owen for the U.S. 5th Circuit Court of Appeals and Washington attorney Michael Estrada for the U.S. Court of Appeals for the District of Columbia. The Democrats have severe reservations about these candidates and are doing nothing more than invoking their privileges in blocking the nominations. If Bush thinks this is an example of a broken system, he should remember how often Republicans have resorted to the same tactic.

Compare this endorsement for the supermajority (60%) requirement for stopping a filibuster with the excerpt that I also criticize below:

Regardless how many "experts" the tax-hating Review-Journal could drag out to intimidate the jurists, the fact remains that their reasoning was sound, however unusual it may have been. And, it did what most clear-thinking Nevadans wanted to be done. It ordered the Legislature to do its job and do it by majority rule, a concept that has served this republic remarkably well and Nevada extraordinarily so for the past 139 years. . . .

We [Nevadans] created a situation in which the majority rules but a minority overrules, so we can fix that, too. Whoever heard of a minority of people telling the majority of the citizens in any state how they should live, spend their money and educate their children? . . .

So, which is it? Is it OK for a minority of Senators to block judges and for a minority of legislators to block tax cuts (though remember that in Nevada, a simple majority of legislators can just ask the voters to approve, by simple majority, a tax cut)? Or is it impermissible for a minority of Senators to block judges and for a minority of legislators to block tax cuts? Or is there a subtle distinction that I'm missing here?

UPDATE: Reader Fabian Gonell points out that the first of these items is an unsigned editorial, and the second is a column by the Sun's editor. I had assumed that at smallish papers like the Sun, the editorials would at least generally express the editor's views, but the reader reminds me that this need not be so: Among other things, there are executive editors (there is one, apparently, at the Sun), and doubtless other breeds of editor as well. So the quotes aren't as inconsistent as I thought they were, though it does still seem noteworthy that the editor condemns supermajority requirements while the editorial defends them.

 
[Eugene Volokh, 4:53 PM]
Great quote about freedom:

Your fathers . . . were peace men; but they preferred revolution to peaceful submission to bondage. They were quiet men; but they did not shrink from agitating against oppression. They showed forbearance; but that they knew its limits. They believed in order; but not in the order of tyranny. With them, nothing was "settled" that was not right. With them, justice, liberty and humanity were "final;" not slavery and oppression. You may well cherish the memory of such men . . . . They seized upon eternal principles, and set a glorious example in their defense. Mark them!

From Frederick Douglass, What to the Slave is the Fourth of July?, reprinted in Frederick Douglass: Selected Speeches And Writings 192 (P. Foner & Y. Taylor eds., 1999). Thanks to Timothy Sandefur for the quote, which I found in his The Right to Earn a Living, 6 Chapman Law Review 207 (2003).

 
[Eugene Volokh, 4:50 PM]
Q-Day: Various seemingly reliable sources agree: Despite many publication date slips, Neal Stephenson's Quicksilver will indeed be out September 23, 2003. I would await it with bated breath, if that weren't a pretty foolish thing to do for two months.

 
[Eugene Volokh, 4:25 PM]
Tax burdens, then and now: Apropos my Oliver Wendell Holmes / taxes post from yesterday, Max Sawicky points out that the tax burden (federal plus state) now is just about 27%, not 35% as I first mentioned (though I've corrected it in respond to Sawicky's message). My apologies for the error; I was working off data that I had gotten a few years back, but looking at the Bureau of Economic Analysis data that he gives me (here and here, the recent peak was at a titch above 30%, in 2000.

     Various data that I've received from various sources -- anti-tax sources, so keep in mind the possible bias, but it seems sound -- suggests that the tax burden in 1927 was about 10%. The then-recent peak, according to the Tax Foundation was 13.7%, in 1921 (thanks to Carol Laughlan for that pointer).

 
[Eugene Volokh, 3:29 PM]
Nevada Supreme Court defended: The editor of the Las Vegas Sun defends the Nevada Supreme Court's decision:

Regardless how many "experts" the tax-hating Review-Journal could drag out to intimidate the jurists, the fact remains that their reasoning was sound, however unusual it may have been. And, it did what most clear-thinking Nevadans wanted to be done. It ordered the Legislature to do its job and do it by majority rule, a concept that has served this republic remarkably well and Nevada extraordinarily so for the past 139 years. . . .

We [Nevadans] created a situation in which the majority rules but a minority overrules, so we can fix that, too. Whoever heard of a minority of people telling the majority of the citizens in any state how they should live, spend their money and educate their children? . . .

     Well, it was actually a majority vote of the citizens that set up a 2/3 legislative majority constitutional requirement for tax increases -- the same constitutional requirement that the Justices (not the people or the citizens) decided to order the Legislature to ignore. And this constitutional requirement actually also allows tax increases if a "majority of the citizens" so vote at the next election, so the "majority of the citizens" aren't actually restrained -- it's just legislative majorities that are restrained unless they can get a 2/3 vote.

     And actually "this republic" has worked "remarkably well" with various supermajority rules: Apparently the editor had never heard of a minority of Senators being able to block treaties (which require a 2/3 supermajority), or impeachments (likewise, 2/3), or a minority of Senators, Representatives, or state legislatures being able to block constitutional amendments (which require a 2/3 supermajority in each house and majorities in 3/4 of the state legislatures). Oh, and here are the other provisions in the Nevada Constitution that require legislative supermajorities -- but I guess "who ever heard of" them? Presumably, according to the editor's logic, they too should be swept aside when the Nevada Supreme Court thinks these merely procedural rights get in the way of what it sees as substantive entitlement:

[Art. 1,] Sec: 3. Trial by jury; waiver in civil cases. The right of trial by Jury shall be secured to all and remain inviolate forever; but a Jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law; and in civil cases, if three fourths of the Jurors agree upon a verdict it shall stand and have the same force and effect as a verdict by the whole Jury, Provided, the Legislature by a law passed by a two thirds vote of all the members elected to each branch thereof may require a unanimous verdict notwithstanding this Provision.

[Art. 4,] Sec: 6. Power of houses to judge qualifications, elections and returns of members; selection of officers; rules of proceedings; punishment of members. Each House shall judge of the qualifications, elections and returns of its own members, choose its own officers (except the President of the Senate), determine the rules of its proceedings and may punish its members for disorderly conduct, and with the concurrence of two thirds of all the members elected, expel a member.

[Art. 4,] Sec: 18. Reading of bill; voting on final passage; number of members necessary to pass bill or joint resolution; signatures; referral of certain measures to voters; consent calendar.

1. Every bill, except a bill placed on a consent calendar adopted as provided in subsection 4, must be read by sections on three several days, in each House, unless in case of emergency, two thirds of the House where such bill is pending shall deem it expedient to dispense with this rule. . . .

[Art. 4,] Sec: 35. Bills to be presented to governor; approval; disapproval and reconsideration by legislature; failure of governor to return bill. Every bill which may have passed the Legislature, shall, before it becomes a law be presented to the Governor. If he approve it, he shall sign it, but if not he shall return it with his objections, to the House in which it originated, which House shall cause such objections to be entered upon its journal, and proceed to reconsider it; If after such reconsideration it again pass both Houses by yeas and nays, by a vote of two thirds of the members elected to each House it shall become a law notwithstanding the Governors objections. . . .

[Art. 7,] Sec[:] 1. Impeachment: Trial; conviction. The Assembly shall have the sole power of impeaching. The concurrence of a majority of all the members elected, shall be necessary to an impeachment. All impeachments shall be tried by the Senate, and when sitting for that purpose, the Senators shall be upon Oath or Affirmation, to do justice according to Law and Evidence. The Chief Justice of the Supreme court, shall preside over the Senate while sitting to try the Governor or Lieutenant Governor upon impeachment. No person shall be convicted without the concurrence of two thirds of the Senators elected.

[Art. 7,] Sec: 3. Removal of supreme court justice or district judge. For any reasonable cause to be entered on the journals of each House, which may, or may not be sufficient grounds for impeachment, the Chief Justice and Associate Justices of the Supreme Court and Judges of the District Courts shall be removed from Office on the vote of two thirds of the Members elected to each branch of the Legislature, and the Justice or Judge complained of, shall be served with a copy of the complaint against him, and shall have an opportunity of being heard in person or by counsel in his defense, Provided, that no member of either branch of the Legislature shall be eligible to fill the vacancy occasioned by such removal.

[Art. 16], Sec: 2. Convention for revision of constitution: Procedure. If at any time the Legislature by a vote of two thirds of the Members elected to each house, shall determine that it is necessary to cause a revision of this entire Constitution they shall recommend to the electors at the next election for Members of the Legislature, to vote for or against a convention, and if it shall appear that a majority of the electors voting at such election, shall have voted in favor of calling a Convention, the Legislature shall, at its next session provide by law for calling a Convention to be holden within six months after the passage of such law, and such Convention shall consist of a number of Members not less than that of both branches of the Legislature. In determining what is a majority of the electors voting at such election, reference shall be had to the highest number of votes cast at such election for the candidates for any office or on any question.

 
[Eugene Volokh, 3:03 PM]
Nevada in California: Dan Weintraub of the Sacramento Bee blogs that

California Schools chief Jack O'Connell elaborated this afternoon on his threat to file a petition with the Supreme Court seeking to force a Nevada-style break in the state budget deadlock. O’Connell said he expects his department’s attorneys to file a petition early next week “seeking a ruling that would suspend the two-thirds requirement for passing a budget or increasing revenues, and instead, allow a simple majority.”

No word yet on why O'Connell doesn't simply ask the Legislature to pass the education budget by a simple majority, which the state Constitution allows. I think the answer is pretty clear. This suit has no chance of prevailing, and O'Connell is grandstanding to put pressure on Republican lawmakes and win brownie points for himself with the education lobby.

I'm not up on the details, or on the relevant provisions of the California Constitution; I'm also swamped this afternoon, and probably won't get a chance to get up to speed on this. But if Weintraub is right, then it sounds like a sure loser of a lawsuit (though, hey, I'd have guessed the same about the Nevada lawsuit had I heard about it when it was filed).

 
[Eugene Volokh, 1:42 PM]
Infernal litigation: Reader Steven Jens writes, apropos the post about the New Mexico priest:

What if the Martinez family could prove that the deceased wasn't in Hell? Then they'd have a case, wouldn't they?

I don't suppose God can be compelled to testify, though. A lot of cases could be resolved much quicker if he could be. Satan wouldn't be a very credible witness. Maybe something photographic . . .

 
[Eugene Volokh, 10:48 AM]
God save us from priests like this: From a Reuters story:

A New Mexico family is suing their local Catholic church over a funeral Mass in which they claim a priest said their relative was only a middling Catholic and going straight to hell. . . . .

Court papers filed last month say that Rev. Scott Mansfield said at Martinez's funeral last year that the deceased was "living in sin," "lukewarm in his faith" and that "the Lord vomited people like Ben out of his mouth to hell." . . .

The complaint also said that as Mansfield walked to the grave, he laced his comments about Martinez -- a former town councilman -- with profanities. . . .

If the allegations are true (and the church denies them: ""We deny the allegations and Father Mansfield denies the plaintiff's allegations"), then this is just awful behavior. Perhaps the priest felt he had a good theological reason for what he was doing. But under common standards of decency, this is just awful, and I think the rest of us are perfectly entitled to judge this man under the standards that we think are right.

     On the other hand, the response -- a lawsuit by "Nine members of the Martinez family . . . seeking punitive and compensatory damages for severe emotional and physical suffering" is also inapt. The priest had a First Amendment right to say what he said; the only argument I can see for the family is that he implicitly promised to give a normal eulogy, and breached that contract, but I don't think that's right: While most people expect a priest to say relatively nice things about the deceased, I think they understand (or at least should understand) that the priest isn't working for them, but reserves the right to express his own views, religious or secular -- even when those views are hideous. Nor would there be a good slander claim; the assertions seem like constitutionally protected opinion, not false statements of fact.

     The case seems especially weak as to this particular part of the allegations:

One of the plaintiffs said the townspeople "are staring at her, thinking her father is in hell," their lawyers said.

Sorry, but you can't recover damages because people think that your loved ones are in hell -- if you could (and remember that people can think your loved ones are in hell based on a wide range of speech, not just a funeral speech), then that would be the end of freedom of religion.

     By the way, I say the word for this anti-eulogy is dyslogy. Thanks to reader Doug Sundseth for the pointer.

UPDATE: Some readers suggested that the plaintiffs may in have a good claim under the "intentional infliction of emotional distress" tort. My point is that I believe the First Amendment should preclude the application of this tort in this situation -- not an open-and-shut position as a matter of current First Amendment law, but I believe that it's the likely result, and the correct result. Calling speech about political and religious matters a tort shouldn't, I think, strip it of First Amendment protection.

 
[Eugene Volokh, 10:38 AM]
Lawrence v. Texas and a sexual autonomy right: Some people -- including, in some measure, Justice Scalia in his dissent -- have argued that Lawrence v. Texas doesn't really recognize sexual autonomy as a fundamental right, and that restrictions on sexual behavior are still permissible simply if they have a rational basis.

     I don't think that's right. It's true that Lawrence is largely silent on the proper test for determining which interferences with sexual behavior are permissible. But the logic of the Lawrence argument suggests to me that sexual autonomy will eventually be treated like the right to rear one's children, the right to have children, the right to have an abortion, and so on. These rights are bounded by the decisions that recognize them (e.g., the abortion right only applies pre-viability or when the mother's life or health is in danger, the sexual autonomy right doesn't apply to prostitution, etc.), some modest burdens on the rights are permitted, and in some cases of extraordinary need even the core of the right may in theory be restricted. But the test is much more demanding than just a rational basis.

     I say this largely because of the cases that the Court cites as the historical roots of this case -- the parental rights cases, the contraceptive cases, or the abortion rights cases. These cases either explicitly use a pretty demanding test for whether a restriction is constitutional (strict scrutiny or the undue burden test) or call the test a "rational basis" test but really apply scrutiny that is much more demanding than a traditional "rational basis" test yields. Recall that the "rational basis" test is applicable to virtually all restrictions on liberty, e.g., restrictions on how you run your business, restrictions on what drugs you use, and so on. Virtually all such restrictions tested under the rational basis test are indeed upheld, because it allows a vast range of permissible interests, and generally upholds laws even when their factual basis is highly questionable, even when the laws are overinclusive or underinclusive, and even when there are many less restrictive alternatives that may still accomplish the law's goal. That's not the test used in the cases that Lawrence cites.

     Moreover, under the traditional rational basis test, the law in Lawrence would be upheld as applied, simply as a public health measure: A ban on homosexual anal sex would be rationally related to the eminently legitimate interest in preventing sexually transmitted diseases. There is at least credible evidence (that's all the rational basis test requires) that such sex is more dangerous than other forms of sex. That the law is potentially overinclusive in that it also applies to oral sex (including oral sex among lesbians, which as I understand it is really quite safe) and to sex using condoms is irrelevant, since such overinclusiveness is generally not unconstitutional under the rational basis test (and at most it would require the law to be struck down as to oral sex). That the law is potentially underinclusive in that it excludes unprotected heterosexual genital sex is also generally not unconstitutional under the rational basis test (especially since a legislature might reasonably conclude that such sex is, under current facts, less dangerous per incident than homosexual anal sex). And the existence of less restrictive alternatives -- such as a condom requirement -- would also not invalidate the law under the rational basis test (in part because such alternatives may themselves be not as effective as a total ban, partly because condoms aren't perfect and partly because such a law would be even harder to enforce than a total ban). Finally, the fact that preventing disease may not have been the actual purpose of the law is generally irrelevant under the rational basis test; it's enough for the law to be rationally related

     So the Court upheld a law even though it would have passed muster under the rational basis test. Moreover, as you can tell from this description of the rational basis test, rights that are subject to protection only under a rational basis test aren't really meaningfully "rights" at all. You can say "You have the constitutional right to ingest anything into your body that you like, unless the government has a rational basis for restricting that," but it doesn't mean much, since under the rational basis test the government can impose pretty much whatever restrictions it pleases. In reality, you don't actually have such a constitutional right. And that's even true if the test were a so-called "rational basis with teeth" or "active rational basis" test, which the Court has at times used in some Equal Protection Clause cases (e.g., City of Cleburne v. Cleburne Living Center, Romer v. Evans): A right subject to even "active rational basis test" scrutiny isn't even a right, because the government would be free to pretty much abolish it almost at will.

     Thus, when the Court says that laws restricting sexual conduct "seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals," I don't think it means "within the liberty of persons to choose without being punished, unless the government has a rational basis to punish them." When the Court says that "[petitioners'] right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter," it doesn't mean that they lack the "full right," and "the government may . . . enter" that "realm of personal liberty" whenever it has a rational basis for doing so. And when the Court goes on to say that "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," I don't think the reference to "legitimate state interest" means that any rational relationship to a legitimate state interest is enough to restrict the "full right." Rather, only "legitimate state interests" that are strong enough to "justify . . . intrusion into the personal and private life of the individual" would suffice.

     Again, I realize that the opinion is not explicit on the test that it would apply, and one could make an argument contrary to the one I'm making. My claim is basically a prediction about how the Supreme Court and lower courts will interpret this sexual autonomy right in the future, and like all predictions (especially those based on rather imprecise language) it may be mistaken. Still, I think that it's the better bet, and that the Court -- or at least these particular Justices -- won't soon take away what they gave by just saying "Oh, of course this full right to engage in their conduct is restrictable, so long as there's a rational basis for the restriction (unlike with the abortion right, parental rights, free speech rights, etc., where much more than a rational basis is required)."

 
[Eugene Volokh, 10:02 AM]
More on strict liability and constitutional rights: Just ran across Jackson v. A Woman's Choice, 130 N.C. App. 590 (1998), where the parents of a minor who got an abortion using forged parental consent papers sued the abortion provider, claiming that the providers were strictly liable. The court held that such strict liability wasn't authorized by the state parental consent statute, but also said that if strict liability were authorized, this would raise serious constitutional problems.

     This supports -- though, I agree, far from definitively -- my theory that strict liability in statutory rape cases may now be unconstitutional (at least when the defendant's claim is that he reasonably thought the girl was 18 or older). Consider three scenarios:

1. A movie producer hires an actress and asks her to perform in a sexually themed scene. He checks her driver's license; it says she's 18. It turns out, though, that the license was fake (and not obviously so). I don't think that he could be constitutionally punishable under a strict liability theory; New York v. Ferber held that such strict liability would be unconstitutional as to distributors, and I take it that the same would apply for producers.



2. An abortion provider is asked to perform an abortion on a young woman. He checks her driver's license; it says she's old enough to have an abortion with no need for parental consent or judicial bypass. (The Court has said that underage girls do have a constitutional right to get an abortion, but not without parental consent or a judicial bypass procedure.) It turns out, though, that the license was fake (and not obviously so). I likewise think he couldn't be constitutionally punishable on a strict liability theory; the Jackson case suggests as much (since a reasonable mistake of age seems on par with a reasonable mistake as to parental consent). And the standard arguments against strict liability in cases touching on constitutional rights -- see my original post, and note the Colautti abortion rights case cited there, which deals with a related though not identical issue -- applies here: If doctors could be held liable for such mistakes, then this would burden the constitutional rights of women who really are old enough to get an abortion with no need for parental consent or judicial bypass.



3. A man and a young woman decide to have sex. He checks her driver's license; it says she's 18. It turns out, though, that the license was fake (and not obviously so). I again think he couldn't be constitutionally punishable on a strict liability theory.

 
[Eugene Volokh, 9:39 AM]
ClearType: Reader Steve Sullivan suggested that I turn this on -- by right-clicking on the desktop, and then clicking on Properties / Appearance / Effects / Smooth Edges / ClearType -- and I tried it on my Windows XP office system, which has a large flat screen monitor (though not yet on my laptop).

     The result looks really nice, much more pleasant than the default setting. I'm sure it's not for everyone, but I suggest you check it out. Note from Steve Sullivan: "It makes text far more readable if you have a 17" or better monitor, and it's indispensable for laptops of any screen size. If you've got a small CRT it may only make text look fuzzier, though."

 
[Eugene Volokh, 9:34 AM]
Cheney's "reconstituted nuclear weapons" quote plays a prominent role in an NPR story from this morning. "Cheney stated flatly that Iraq had not just a nuclear weapons program, but the weapons themselves," Mara Liasson says, near the start of the story. Not a word about the fact that four times in the same program -- including in the exchange immediately before the one that was quoted -- Cheney said that Saddam was just trying to get or make nuclear programs. Not a word about the fact that "reconstituted nuclear weapons" was apparently nearly never used as a separate phrase before Cheney's speech -- it's nuclear weapons programs that are said to be reconstituted, not nuclear weapons themselves.

     Not a word, then, about the possibility -- I would say the very strong probability -- that, given all this, Cheney simply misspoke, something that people often do in the middle of a long unscripted exchange. Not a word about the fact that one the Washington Post articles that mentioned this explicitly said that "aides later said Cheney was referring to Saddam Hussein's nuclear programs, not weapons" (presumably, if Liasson had checked with Cheney's office, his aides would have again made that point). Thanks to reader Elizabeth Curwen for the pointer.

 
[Eugene Volokh, 5:54 PM]
Unnatural: I was just talking to my mother on the phone, and the connection wasn't great, so it was hard to hear. I was telling her something about "Metro Mortgage." "Natural Mortgage?," she asked, having misheard. "No, Metro Mortgage." "Oh, that's good," she says, "because there's nothing natural about mortgages." Well put, though that doesn't mean I'd throw people in jail for doing them.

 
[Eugene Volokh, 5:48 PM]
Schools forgetting the boundaries of their authority: According to this Newsday story,

School administrators in Washington Heights forced several eighth-graders to be tested for pregnancy and sexually transmitted diseases after they attended a "hooky party" last spring, the New York Civil Liberties Union charged in a federal lawsuit filed Tuesday. . .

The civil liberties union is representing two of approximately 11 girls who cut school on April 11 and attended a "hooky party" where there reportedly was sexual activity, [Donna Lieberman, executive director of the NYCLU] said.

"The next school day when they went back to school they were summoned to the principal's office and effectively suspended," Lieberman said.

She said the girls were told they had to be tested for pregnancy, HIV and other sexually transmitted diseases and could not return to school without a doctor's note that included the test results. . . .

The NYCLU is complaining that this interfered with the students' privacy, and there's probably something to that -- but I think the really outrageous thing (if, of course, the allegations are factually accurate) is that making such decisions should be the parents' call (or, if the parents aren't in the picture, the lawful guardian's), not the school administrators'. If you think your child is at risk for pregnancy or sexually transmitted disease, you may have her or him tested; but schools shouldn't be in that business, whether or not the pregnancy or disease might have happened while the kids were playing hooky from school. (The analysis would be different as to nonsexually transmitted diseases, where schools may have a much stronger concern about transmission at school.)

     Curiously, the word "parent" does not appear at all in the Newsday article. (Thanks to reader Nicholas Blesch for the pointer.)

 
[Eugene Volokh, 4:38 PM]
Court order: This is apparently entirely legit; see here for a PDF copy of the printed document.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

HYPERPHRASE TECHNOLOGIES, LLC
and HYPERPHRASE INC.,
ORDER
Plaintiffs,
02-C-647-C
v.
MICROSOFT CORPORATION,
Defendant.


Pursuant to the modified scheduling order, the parties in this case had until June 25, 2003 to file summary judgment motions. Any electronic document may be e-filed until midnight on the due date. In a scandalous affront to this court’s deadlines, Microsoft did not file its summary judgment motion until 12:04:27 a.m. on June 26, 2003, with some supporting documents trickling in as late as 1:11:15 a.m. I don’t know this personally because I was home sleeping, but that’s what the court’s computer docketing system says, so I’ll accept it as true.

Microsoft’s insouciance so flustered Hyperphrase that nine of its attorneys, namely Mark A. Cameli, Lynn M. Stathas, Andrew W. Earlandson, Raymond P. Niro, Paul K. Vickrey, Raymond P. Niro, Jr., Robert Greenspoon, Matthew G. McAndrews, and William W. Flachsbart, promptly filed a motion to strike the summary judgment motion as untimely. Counsel used bolded italics to make their point, a clear sign of grievous iniquity by one’s foe. True, this court did enter an order on June 20, 2003 ordering the parties not to flyspeck each other, but how could such an order apply to a motion filed almost five minutes late? Microsoft’s temerity was nothing short of a frontal assault on the precept of punctuality so cherished by and vital to this court.

Wounded though this court may be by Microsoft’s four minute and twenty-seven second dereliction of duty, it will transcend the affront and forgive the tardiness. Indeed, to demonstrate the even-handedness of its magnanimity, the court will allow Hyperphrase on some future occasion in this case to e-file a motion four minutes and thirty seconds late, with supporting documents to follow up seventy-two minutes later.

Having spent more than that amount of time on Hyperphrase’s motion, it is now time to move on to the other Gordian problems confronting this court. Plaintiff’s motion to strike is denied.

Entered this 1st day of July, 2003.

BY THE COURT:

STEPHEN L. CROCKER
Magistrate Judge

 
[Eugene Volokh, 2:14 PM]
Kipling's The Bisara of Pooree: This is one of my favorite short stories; I just reread it, and thought I'd pass along the link. (A short story of mine on a similar theme is being published in the September/October issue of Legal Affairs; The Bisara of Pooree was part of the inspiration for it. I would give a lot to be able to write as well as Kipling, poetry or prose.)

 
[Eugene Volokh, 1:51 PM]
The elements, as featured in comic books: Pretty cool; thanks to Eve Tushnet for the pointer.

 
[Eugene Volokh, 12:47 PM]
Taxes as the price of civilization: A reader asked me about Justice Holmes's line that taxes are the price of civilization; he suspected that the quote -- usually used to suggest that taxation is fair because it buys us vital protections -- might have been taken out of context.

     It turns out that Holmes did basically mean what he has been said to mean; the quote is from Compania General de Tabacos de Filipinas v. Collector of Internal Revenue (1927), where Holmes argued that was fair for the Philippine government to tax certain transactions that were entered into by a Philippine company but that took place outside the Philippines. The full quote, in fact, is "Taxes are what we pay for civilized society, including the chance to insure." (Holmes also apparently said similar things in conversation.)

     The interesting question, I think, is what the aggregate tax burden (federal, state, local, and territorial) was in 1927. My guess is that it was a lot less than the 27% that it is today. (I'm speaking here of the effective tax burden, which is basically revenues / gross domestic product, not the top marginal rates, which strike me as less telling.) If Holmes were alive today, would he think that civilization was gouging?

UPDATE: Here's the answer.

 
[Eugene Volokh, 12:16 PM]
Statutory rape and strict liability: Reader David Pittelli writes:

While it's unreasonable to expect a bookseller to read all of his many books, it's not unreasonable to expect Lotharios in the habit of picking up girls of about age 18 to card them or otherwise determine their ages, because no one can seduce girls in the numbers that make such an act impractical. (The time needed to card someone is insignificant compared to the time spent on the rest of the seduction, even if one is seducing 3 women a day, whereas the time needed to read a 300-page book, or even thumb through a magazine, can be greater than the time between sales of such items.) That said, I hope that a jury would not convict the seducer if he could convince them that she both looked of age and had a valid-looking fake ID, precisely because it is much harder to "prove" age beyond the certainty provided by a driver's license.

This argument is sensible, but it counsels in favor of negligence liability -- i.e., the man is guilty if he knew or reasonably should have known the girl was underage (that's the "it's not unreasonable to expect . . . to card them" point) -- rather than strict liability -- i.e., the man is guilty even if he acted perfectly reasonably. After all, under strict liability, the man can go to prison (assuming the jury follows the instructions, rather than nullifying, as my correspondent hopes they would do) even if he carded the girl and did everything that "was not unreasonable to expect." That's the nature of strict liability.

     Incidentally, that's likely the rule for child pornography cases, which I mentioned in my original posts. It's not unreasonable to expect producers of sexually themed movies (or even non-sexually-themed movies that have even an isolated sex scene) to card the actresses that he employs; and by law, producers are actually required to do so, and to make those records available. But if they card them but it turns out the ID was false (and not obviously so), then they're not liable. The same logic, I think, would now apply (after Lawrence) to statutory rape.

 
[Eugene Volokh, 11:33 AM]
Welsh rabbit: Though I'm a staunch descriptivist in linguistic matters, I can still bemoan some changes in the language -- I just don't call them "wrong," once they happen. One of the losses that I regret is "Welsh rabbit," which my Random House defines as "a dish of melted cheese, usually mixed with ale or beer, milk and spices, served over toast" (I prefer English muffins). These days, when you say that, you'll often be corrected by a helpful soul who says "Oh, I think you mean Welsh rarebit."

     Actually, "Welsh rabbit" apparently came first (my Random House says so, as does Merriam-Webster's online). As the Word Detective says (and I've heard it elsewhere), the jocular implication was "that the Welsh could not obtain or afford real rabbit and had to make do with this cheesy substitute." Compare Dutch treat and similar ethnic digs.

     Over time, "Welsh rarebit" arose as a synonym, and then people forgot the joke and assumed that "Welsh rabbit" must be a corruption of "Welsh rarebit" rather than "rarebit" being a version of "rabbit." (I've seen one seemingly reputable source claiming this, but the majority that I've checked support the theory outlined above.) So "Welsh rabbit" is now largely lost, except to those of us who are willing to be thought ignorant by those who really are ignorant of the original usage.

     The decline of "Welsh rabbit" is understandable. The chief purpose of language is to communicate effectively, not to provide entertainment to the cognoscenti. People see "Welsh rabbit" on the menu, expect rabbit, get something else, and are disappointed. Who wants that? So maybe "Welsh rabbit" deserved to die, but I mourn its death nonetheless.

 
[Eugene Volokh, 8:02 AM]
Lawrence v. Texas and statutory rape: So here's a legal twist caused by Lawrence that I haven't seen people talking about. Warning: This is pretty legalistic reasoning, which many people may -- rightly or wrongly -- consider casuistic to the point of silliness. Still, I think that this is plausible legalistic reasoning, given the rules of our legal system:

1. Many state statutory rape laws are "strict liability" offenses: A man can be criminally punished for having sex with a girl under the age of consent (for the sake of convenience, I'll stick with man/girl situation, though others may arise, too) even if he had no way of knowing that the girl was underage. He could check her driver's license, and see that it shows her to be of age, and he could still in theory be prosecuted if it turned out that it was a fake id. The remainder of this post will thus focus solely on "strict liability" for statutory rape -- punishing someone who acted perfectly reasonably, and was reasonably mistaken about the girl's age. Nothing here would preclude punishing someone who knew, or who even reasonably should have known, how old the girl was.



2. I generally think that such strict liability criminal statutes -- which don't require knowledge, recklessness, or even negligence -- are unfair; people shouldn't be sent to prison based on such a reasonable mistake of fact. (I set aside for now mistakes of law, which raise subtly different questions; I likewise set aside civil litigation, where I think strict liability is sometimes permissible.) Generally, the government can punish the blameworthy by focusing on those who knew the facts, were reckless about the facts, or were at least negligent (which is to say that a reasonable person would have realized what the facts were). Strict liability may provide an extra measure of deterrence, but only at a substantial risk of unfairness. However, the Supreme Court has generally held that such strict liability statutes are not unconstitutional.



3. There is, however, a set of circumstances where such strict liability criminal statutes are unconstitutional: The Court has held, in a wide variety of cases -- at least libel, obscenity, and child pornography -- that strict liability is impermissible where criminal punishments for speech are involved. Even if the law on its face punishes constitutionally unprotected speech (e.g., child pornography), it may not hold people strictly liable for mistakes of fact (e.g., "I reasonably believed that the woman in the pornographic movie was 18, even though it turns out she was fooling us"). Here's the reasoning from Smith v. California, which barred strict criminal liability in obscenity cases, though the same principle was ultimately adopted in other cases, including child pornography:

   We have held that obscene speech and writings are not protected by the constitutional guarantees of freedom of speech and the press. The ordinance here in question, to be sure, only imposes criminal sanctions on a bookseller if in fact there is to be found in his shop an obscene book. But our holding [that obscenity laws are constitutional] does not recognize any state power to restrict the dissemination of books which are not obscene; and we think this ordinance's strict liability feature would tend seriously to have that effect, by penalizing booksellers, even though they had not the slightest notice of the character of the books they sold.
   
   The appellee and the court below analogize this strict-liability penal ordinance to familiar forms of penal statutes which dispense with any element of knowledge on the part of the person charged, food and drug legislation being a principal example. We find the analogy instructive in our examination of the question before us. The usual rationale for such statutes is that the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors -- in fact an absolute standard which will not hear the distributor's plea as to the amount of care he has used. His ignorance of the character of the food is irrelevant.
   
   There is no specific constitutional inhibition against making the distributors of good the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of press stand in the way of imposing a similar requirement on the bookseller. By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public's access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. It has been well observed of a statute construed as dispensing with any requirement of scienter [i.e., one that allows punishment for reasonable mistakes of fact, and possibly even one that allows punishment for unreasonable but honest mistakes of fact] that: 'Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience.' And the bookseller's burden would become the public's burden, for by restricting him the public's access to reading matter would be restricted. If the contents of bookshops and periodical stands were restricted to material of which their proprietors had made an inspection, they might be depleted indeed. The bookseller's limitation in the amount of reading material with which he could familiarize himself, and his timidity in the face of his absolute criminal liability, thus would tend to restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly. The bookseller's self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administ red. Through it, the distribution of all books, both obscene and not obscene, would be impeded.

   Moreover, the Court has more or less adopted this principle (though in a somewhat different context) for at least one other constitutional right -- the right to get (and the corresponding right to perform) an abortion. See Colautti v. Franklin, 439 U.S. 379 (1979).



4. Under Lawrence, there now is a constitutional right to have consensual sex with an 18-year-old -- just as there is a right to have a consenting 18-year-old perform in one's adult film. There is no constitutional right to have consensual sex with a 17-year-old, just as there is no right to have a consenting 17-year-old perform in one's adult film. But, under the theory of the First Amendment strict liability cases, it seems to me that it would be unconstitutional to impose strict liability for having sex with 17-year-olds, because of the danger that it will deter people from having sex with 18-year-olds. (See New York v. Ferber (1982).) Let's lay this out graphically:

   Child pornography constitutionally unprotected: People who make, distribute, and possess movies that contain minors in sexual situations may be punished.New York v. Ferber.	Other speech constitutionally protected: If the actors and actresses are 18 or older, the movie is protected (unless it fits within the obscenity exception).	Result: It's unconstitutional to hold people strictly liable for reasonable mistakes of fact about the actors' or actresses' ages -- "I reasonably thought she was 18" is a good defense. Ferber.
   Sex with minors constitutionally unprotected.	Sex with consenting adults protected. Lawrence v. Texas.	Therefore: It's unconstitutional to hold people strictly liable for reasonable mistakes of fact about their partners' ages -- "I reasonably thought she wsa 18" must be a good defense.




5. What are the possible distinctions here? One is that there's no right, under Lawrence, to have sex with minors -- but for reasons I mention, that doesn't distinguish the free speech cases, which likewise bar strict liability even for constitutionally unprotected behavior, because such liability may deter protected behavior.
   
        A second distinction -- that preventing statutory rape is just very important -- also fails. Preventing child pornography involving minors is also very important, but the Court has held that the government must fight that by punishing knowing, reckless, or possibly negligent use of minors; the government may not serve even this very important interest by punishing people who reasonably believed that the person was 18.
   
        Another is a factual distinction: In practice, one might say, very few people will be deterred from having sex with 18-year-old girls because they fear that she might be 17. But why? One might argue that it's because sex is such a powerful force; but so is the desire to make money from selling obscenity or child pornography, for those who are in that business. One might also point out that because statutory rape laws are notoriously underenforced, few people will be much deterred by them; and maybe that's enough. But that might be a hard theory for a court to accept -- a strict liability statutory rape law is constitutional only because everyone knows that it actually wouldn't be enforced much. (And note that one of the main arguments for statutory rape laws is precisely that they are aimed at protecting minors by deterring adults from having sex with them.)
   
        There might be another theory -- Lawrence repeatedly talks about the importance of sex to creating meaningful relationships. Maybe this means that casual sex between relative strangers doesn't really deserve constitutional protection; it's protected in practice, because it's so hard to draw distinctions between meaningless sex and meaningful sex, but courts shouldn't go out of their way to protect it. And, the theory would go, generally people who don't know how old their sexual partner is don't have a really close relationship to that partner. Thus, strict liability for statutory rape wouldn't really deter meaningful relationships, only casual pick-ups. I don't think courts are likely to buy this, though, because strict liability would end up punishing even meaningful relationships (some girls might consistently lie about their age, even to a serious lover), and because I think courts will be reluctant to generalize about which relationships are likely to be meaningful and which aren't.



6. One possible limitation: As I read Limon, it holds that sex with adults is constitutionally protected, but sex with minors -- presumably, those under 18 -- is not. One might therefore argue that, in states where the age of consent is under 18 (e.g., 16), reasonable mistake about whether the girl was 18 may not lead to criminal punishment, but reasonable mistake about whether she was 16 may lead to criminal punishment. After all, punishing people when they reasonably but erroneously believe the girl is 18 would deter constitutionally protected conduct (sex with 18-year-olds); but punishing people when they reasonably but erroneously believe she is 16 would deter conduct that's constitutionally unprotected under Lawrence, though it's statutorily legal (because the age of consent, by hypothesis, is 16).



7. Note that this is not the issue involved in the Limon case, which the Court remanded for further proceedings in the lower courts; that case involves the separate question whether states could have different statutory rape rules for homosexual sex as opposed to heterosexual sex.

In any case, that's my thinking on the matter. Note that this is basically a prediction about the kinds of arguments that can be made, and that courts might buy. I am not taking a stand on what the right constitutional rule should be (except that I stick by my point 2, which is that it's unfair [though not necessarily unconstitutional] to have strict criminal liability, which may send people to prison even though, based on the facts as they reasonably assumed them to be, their conduct reasonably seemed to them to be perfectly lawful).

 
[Eugene Volokh, 6:31 AM]
Still more on gay marriage: New Jersey Assemblyman Michael Carroll e-mails, responding to my posts on gay marriage:

I confess that I share the view that marriage is primarily about natural children, but I further confess that I don't believe that marriage, as an institution, would be irreparably harmed if it were extended to any couple wishing to participate.

But I wonder: in my lofty position, I receive correspondence on this subject fairly often and, on occasion, even some which is civil. The (honest) advocates of gay marriage are relatively straightforward in their intentions: they want it, first, as a symbol, that their relationships are the same as heterosexual unions. And, second, for the money. Being married, at times, carries with it substantial financial benefits. Most of these, as you know, can be obtained through some planning, but advocates argue that if heterosexual couples need not take that extra planning step, gays should not have to do so either.

I submit, though, that the burden lies with those who support extension of the institution to demonstrate some societal benefit. As you note in your most recent post, the pair bond is "optimal" for raising natural children. Society recognizes that by extending the benefits of marriage. (Too, I think if one analyzes the matter, one can see that marriage also benefits women, who, having devoted a considerable period of time to bearing and raising children, often at the expense of many economic activities, enjoy some security that their mate will not (easily) swap them for a newer model)

What benefits do gay relationships offer society? By way of example, if my "relationship" with my Aunt falls apart, that's a tragedy, for me, but a matter of the utmost irrelevance to society. Ditto gay unions. If they break up, the societal impact is . . .?

Marriages -- at least, those with kids -- are different. Society SHOULD encourage the "optimal" relationship and if some folks, who can't or won't have kids, benefit as free riders, is that not a reasonable administrative penalty? The state peers up one's skirts, figuratively, for a quick check of the equipment, to ensure a presumptive ability to breed. But it requires no gynecological or urologic exam, doesn't ask about "love", etc. It simply looks at the -- two -- folks and assesses whether it's presumptive possible to have kids.

The deeper questions -- accidental/essential infertility, etc. -- seem rather beside the point. If the state can eyeball a couple and KNOW for certainty that it will NEVER receive the benefits attendant to the optimal child rearing arrangement, what benefit does it receive from blessing the union? That some free riders board the train seems little justification for throwing the doors open to all.

I think these are interesting points, and presented in a refreshingly clearheaded, blunt, and concrete way. A few responses:

1. I think there's another motivation for at least some homosexuals who want to marry, beyond just the desires for symbolic equality, and the desires for the tangible benefits that heterosexual married couples get: Homosexual couples do often have children, whether adopted children, children from past marriages, or children conceived with a sperm donor or a surrogate mother. I realize that some people argue that gays shouldn't be allowed to adopt, or shouldn't be allowed to keep custody of their natural children, because it's bad for children to be raised by homosexual parents. I don't agree with this argument, partly because I'm not sure that it's bad for children to be raised with homosexual parents (though I haven't done any reading on this, and may well be mistaken), and partly because the question is "compared to what?" Even if it's better for a child to be raised by heterosexual parents than by homosexual parents, it may still be better for him to be raised by homosexual parents than being in an orphanage or a foster home (which often, though not always, is the alternative). And while I think that th