Saturday, December 27, 2003

 
[Juan Non-Volokh, 12/27/2003 07:55:36 PM]
10 Ads Americans Won't See: Ten interesting and provocative ads only seen overseas, via Ad Age.

 
[Eugene Volokh, 12/27/2003 01:48:31 PM]
The AFA and e-mail addresses: A reader's e-mail reminded me to say something about the American Family Association poll that's pretty obvious but still worth noting: The poll will get the AFA a large list of e-mail addresses, many of which are likely to be valid, and some of which come from people who have expressed support for an AFA cause (by voting against gay marriages). It might be that the AFA is primarily trying to harvest the addresses just to beef up their mailing list, and doesn't care which way the poll comes out.

     I suspect that if the AFA had gotten a 95%-5% result in its favor, it would have trumpeted it; that's what the page says, after all: "Results of this poll will be presented to Congress." (Incidentally, it would be interesting to see whether AFA now will present the results of the poll to Congress -- and, if it doesn't, it seems fair for anti-AFA groups to publicize AFA's failure to abide by their own stated intentions.) But perhaps they figure that even if the anti-gay-marriage percentage comes in embarrassingly low for them, having the extra e-mail addresses will be worth it.

Friday, December 26, 2003

 
[Eugene Volokh, 12/26/2003 06:09:33 PM]
The perils of running online polls for political purposes: Julian Sanchez at Reason's Hit & Run reports:

The American Family Association is running a meaningless online poll on attitudes about gay marriage which, they say, they'll be sending to Congress. Presumably, they thought selection bias (who goes to the AFA website, after all?) would yield a huge margin against gay marriage. Except, so far, it's not quite working out. I'm dying to see them forced to send a "petition" to Congress showing upwards of 60 percent support for gay marriage, with another 8 to 10 favoring at least civil unions. That, or watching them try to weasel out of doing so. Have fun. (Hat tip: Amy Phillips.)

Makes sense to me -- people who run meaningless online polls (and who, I suspect, were intending to promote the poll as if it were meaningful) deserve to have them equally meaninglessly backfire.

UPDATE: As I expected, there was an obviously non-AFA e-mail circulating urging supporters of gay marriage to vote at the AFA site; a reader was kind enough to forward it to me. (The e-mail also said that it was urging people to vote whatever their views, since "The point here is to have a LEGITIMATE cross section of people voting in this poll"; but even if this claim was sincere, it was unsound, since no matter who got the e-mail and acted on it, the result would almost certainly not be a "legitimate cross section" in the sense of a representative cross section.)

     So the AFA wanted a poll that was unrepresentative because it mostly reflected the views of the unrepresentative chunk of the population that visits the AFA site. Instead, it got a poll that was unrepresentative because it largely reflected the views of the unrepresentative chunk of the population that got the e-mail. Bunk either way, but at least the way it turned out it's bunk that hoisted the original would-be bunk perpetrators with their own petard.

 
[Eugene Volokh, 12/26/2003 01:46:58 PM]
Attempt to suppress anti-illegal-immigrant advocacy group: According to The Boston Globe,

Nancy Morse, executive director of the MetroWest Latin American Center, . . . request[ed] an inquiry into whether [speech by a local group advocating the expulsion of illegal immigrants from Framingham] had the potential to incite violence against immigrant groups, particularly the Brazilian population. [Text moved: The group has been the subject of a heated controversy for the past month, drawing criticism from town and state officials, social workers, and minority activists after reportedly making disparaging remarks at its Nov. 13 meeting about Framingham's immigrant population.]

She wrote in a Nov. 20 letter to the Board of Selectmen that . . . comments at the meeting [by the group's founder] could result in the "creation of an atmosphere of inferiority, isolation, and intimidation based on national origin, which could result in a discriminatory environment."

In response, Framingham Town Counsel Christopher Petrini "subpoenaed 31 pages of documents from Rizoli," and concluded that (unless a review of a videotape shown at the meeting suggests otherwise),

did not violate civil rights laws at its inaugural meeting in November . . .

Petrini determined that the group's controversial views on the negative impact of illegal immigration are protected under the First Amendment.

After nearly a month of review, Petrini wrote in a memo to the Board of Selectmen last Thursday that the group, Concerned Citizens and Friends for Illegal Immigration Law Enforcement, and its cofounders, Joseph Rizoli and Jeffrey Buck, are "entitled to the protection of the First Amendment absent proof that the speech in question challenged the attendees to imminent violence or lawlessness."

Glad to hear that the Town Counsel understands the First Amendment -- and sorry that those who called for the inquiry don't (unless they really did think that the speech at the meeting fit within the extremely narrow First Amendment exception for speech that's intended to and likely to cause imminent violence, something that strikes me as extremely unlikely, and not suggested by anything in the story).

     Incidentally, note yet again how the language of "hostile environment" law -- here framed as "discriminatory environment" -- is leaking from employment, where it has become a nationwide government-imposed speech code, to education, to public accommodations, and now to public meetings. I document this trend here and, more recently, here (the latter specifically as to cyberspace law, though the same point applies outside cyberspace as well); David Bernstein has done the same in his new book You Can't Say That.

 
[Tyler Cowen, 12/26/2003 11:24:20 AM]
Faith-based prisons? They are starting one in Florida, read here. Here are a few details:

"A little more than a month ago, inmates in this northern Florida prison were told that it was going to be converted to a faith-based institution and were given the option to transfer out. At the same time, prisoners elsewhere were told they could transfer in and take part in more intensive religious programs.

That prompted 111 inmates to transfer, but their beds were quickly filled with inmates who said they wanted to dedicate more time to their faith.

"You don't have to be here, you've chosen to be here. It's no different, from what I've been told, from the other correction facilities. You still have to work, you still have to follow the rules, but you've committed yourself to a higher authority," Bush said.

Religious activities are available daily, but participation is voluntary. Prisoners must stay out of trouble for at least a year to transfer to Lawtey and will be transferred out for discipline problems.

The 791 prisoners represent 26 faiths. The prison has 500 volunteers to help with religious instruction and serve as mentors. Prison officials are seeking another 500 volunteers. "

My take: Isn't this just yet another way to put the better-behaving inmates together in one place? I would expect that to improve human well-being, at least for the people I care about. But I would expect to get most of the practical benefits without the explicit introduction of religion. You do need some signal of good behavior, the question is whether religion is the only or the best option for such a signal.

 
[Sasha Volokh, 12/26/2003 08:48:45 AM]
Belated Merry Christmas, everyone: And, if you still want a carol to sing, try this one.

Rudolpho cervo erat
Nasum ruber lucensque;
Quicumque hunc videret
Hunc diceret candere.

Alii cervi omnes
Semper hunc deriserant;
Cum misero Rudolpho
In ludis non luserant.

Sanctus Nicholas dixit
Sub festum nubilum:
"Naso claro, Rudolphe,
Hodie carrum ducesne?"

Tum cervi clamaverunt,
"Omnibus dilectus es!
Rudolphe rubri nasi,
In historiam descendes!"

Note: This is my substantial reworking of an existing one (which appears to be anonymous), which you can find here, among other places (search for the words "Reno erat"); but that one, I found, has bad rhymes, bad grammar, and so on. Some of the stanzas in my version above are not that different from the original, though.

For an entirely original one -- though this one is a lot harder to sing -- try my rewriting of the same carol in the style of Catullus (hendecasyllables). I'm going from memory here, so I hope this is right:

De Rudolpho cervo rubri nasi

Lucens et rubicundum erat Rudolpho
Cervo nasum, aliquo umquam idem vidente
Quod et fulgere saepe diceretur.
Irridere alii hunc iocis solebant
Cervi, cum quibus haud ei licebat
Ludos ludere idoneosque cervis.
Sub festum nubilosum honore Christi
Tum Sanctus Nicholas ei appropinquat --
"Carrum duc hodie, Rudolphe," dicit,
"Tuo tam nitido calente naso?"
Cervi omnes igiturque diligebant,
Clamabantque, "Ruber Rudolphe magne,
Superstes tua fama erit per aevum!"

If anyone ever feels like arranging this, please let me know!

UPDATE: A reader, who asks to remain anonymous, says that, once while participating in an intensive Latin program, he passed the time by making Catullus poems into limericks. Catullus's Poem 85, one of his best and shortest, goes like this:

Odi et amo: quare id faciam, fortasse requiris.
Nescio, sed fieri sentio et excrucior.

which means: "I hate and I love. Why do I do this, you may ask. I don't know, but I feel it happening and it tears me apart." The reader's version goes:

A torn-apart poet said, "I
Love my Lizzy at times, but" -- a sigh --
"When she's running around,
I am frequently found
To detest her. I can't tell you why."

 
[Tyler Cowen, 12/26/2003 06:16:54 AM]
Law and art, continued: Here is William Hogarth's The Marriage Contract. The web site offers the following vivid description:

"Count Squander's parlor is decorated with paintings of gloomy and bloody episodes from the Old Testament and the gruesome fates of Christan martyrs. Portents of impending doom for the oblivious groom and bride, these works of art satirize and prophesize the disastrous outcome of the arranged marriage."

Here is a related oil painting by Hogarth. Here is a description of what that painting is about.

Wednesday, December 24, 2003

 
[Tyler Cowen, 12/24/2003 08:57:09 AM]
Trial by Jury: For images of Thomas Hart Benton's painting Trial by Jury I am indebted to John Hays, Chris Bertram, and Bill Rudersdorf. Another version of the image is available on the cover of Gerald Gaus's book Justificatory Liberalism.

Benton, in my view, remains an underrated painter. Try his Custer's Last Stand or this broader selection of images.

 
[Tyler Cowen, 12/24/2003 06:03:46 AM]
The forward march of progress: Clay Whittaker is a thirteen-year-old political blogger, here is his site, www.claywhittaker.com. He describes himself as free market, in between Republican and libertarian, and Christian. Here is his blog post in defense of the guy who marketed sea monkeys. His blog is new, but it deserves real encouragement. You can see the influence of Glenn Reynolds in some of the phrasing, I think. Clay writes: "My writing will not be look-i'm-a-kid-and-I-write-a-big-boy-weblog centric. I have many opinions and I plan on putting them down on paper--I mean on screen. So, I guess thats about it. Stick around and tell your friends." Here's wishing a Merry Christmas to Clay!

Tuesday, December 23, 2003

 
[Tyler Cowen, 12/23/2003 03:50:07 PM]
Law and art, more: Three Lawyers Conversing, by Honore Daumier. I am a big fan of Thomas Hart Benton's Trial by Jury painting as well, but I cannot find an image on-line, let me know if you can.

 
[Eugene Volokh, 12/23/2003 09:16:03 AM]
A sensible admonition: Lee Heard writes:

Did you really just publish an eight-paragraph complaint about the phrase "Season's Greetings"? Dude, RELAX!

Good point.

Monday, December 22, 2003

 
[Tyler Cowen, 12/22/2003 05:13:30 PM]
Law and art, a few favorites: Here is one of my favorite legal paintings, The Passion of Sacco and Venzetti, by Ben Shahn. Here are more images by Shahn. My politics are very far from Shahn's, but in matters of art I put quality first. I hope to offer you a few more of my favorite legal paintings soon.

 
[Eugene Volokh, 12/22/2003 11:30:32 AM]
"Right of first refusal": There's something of an argument developing about Wesley Clark's security strategy:

And I would say to the Europeans, I pledge to you as the American president that we'll consult with you first. You get the right of first refusal on the security concerns that we have. We'll bring you in.

Andrew Sullivan condemned this, as turning over American security autonomy to the Europeans ("That's tantamount to Howard Dean's view that we should seek the 'permission' of the United Nations before military action."). Dan Drezner was less harsh, but still condemned it. My friend and colleague Mark Kleiman quite strongly disagreed, reasoning that "right of first refusal" is a legal term that simply means, in context, "that we ought to try, when our security is threatened, to work with Europe, and go it alone only if Europe won't play on terms acceptable to us."

     I'm not sure who's right here, but I wanted to chime in to point out why it's hard to tell: Clark was using a legal/business term but pretty far outside its common legal meaning, or, to my knowledge, its common business meaning.

     A right of first refusal is "A potential buyer's contractual right to meet the terms of a third party's offer if the seller intends to accept that offer" (Black's Law Dictionary). If I own a factory, and you buy a right of first refusal for that factory, then this means that if I choose to sell the factory (and I have no obligation to do this), I have to sell it to you so long as you can meet the best offer that I could get from anyone else.

     So a right of first refusal is (1) a legally enforceable right, and not just a promise to talk about things, (2) something that generally applies to sales transactions, though it could also make sense for other transactions which can only be entered into with one other party, but (3) an obligation to sell to a particular person, if he comes up with a matching offer, and not an obligation to sell as such (I can still refuse to sell the factory to anyone). The U.S. could therefore give the Europeans a right of first refusal for some new fighter aircraft, or possibly the right of first refusal for some sort of bilateral security treaty (e.g., "We promise that if we need to do a security exchange program with some other entity, we'll give you a chance to be that other entity, if you offer us a better deal than we'd get with, say, Israel or Japan or someone else").

     But it's not clear what, in a purely legal sense, a "right of first refusal on the security concerns we have" would mean. A promise to "try . . . to work with Europe" on security concerns isn't really a right of first refusal, or even very close to it. It may be a right of consultation, but it's not a right of first refusal. And even taking into account that Clark might have meant this in a figurative sense, it's hard to tell exactly what that sense would have been.

     What's more, a right of first refusal is a binding right, in that it gives the rightsholder a legally enforceable claim (though a narrow one) against the grantor. If I don't give you a chance to meet the offer for that factory, I've violated your right of first refusal, and could be sued. I can see therefore why Clark's critics would have taken Clark's stand as involving something more than just a promise to talk -- even taking into account that promises are often less binding in international affairs -- but rather a promise to be bound in certain ways as to one's actions.

     On the other hand, I can also see why Clark's defenders would distinguish this sharply from a policy that we should always seek someone's permission before acting at all. That's not exactly what a right of first refusal is about; it doesn't stop me from selling my factory -- rather, it only controls whom I sell it to, and tends to do it in a way that still leaves me able to make a profit from the sale.

     My tentative sense is that Clark had heard of this cool-sounding legal phrase, and used it for its connotation of cooperation and business amity, without thinking that much about exactly what it would mean. This was on a TV program, after all, and people often talk especially imprecisely in such venues. So I can't really figure out exactly what Clark meant, or whether I should be outraged or not.

 
[Eugene Volokh, 12/22/2003 10:14:25 AM]
Gay marriage poll: A new New York Times poll finds 55%-40% support for "a constitutional amendment allowing marriage only between a man and a woman." There's 61-34% opposition to "a law allowing homosexuals to marry," so it seems that only about 6% of the public is swayed by the "don't amend the Constitution, even for something that you think is right" argument. (Click on "Graphic: Views on Homosexuality and Gay Marriage" for the data.)

     This seems to support, I think, the argument that the Massachusetts Supreme Judicial Court pro-gay-marriage decision may end up hurting the gay marriage movement more than it helps, by triggering a Federal Marriage Amendment backlash, and it's consistent with (1) previous polls on the issue (search for "marriage"), coupled with (2) the supposition that as people see gay marriage as more likely to be required by the courts, they may be more interested in an amendment that deals with a real threat rather than a hypothetical one. Of course, however, the enactment of the FMA is far from certain even if this poll properly captures popular sentiment (never clear, given uncertainties about language phrasing and the depth of respondents' views), given the difficulty of enacting even a popular constitutional amendment.

     By the way, the only group in which a majority opposes the amendment (54%-42% [which I erroneously originally mistyped as 52%-42%]) is those who "know a gay person." This is further evidence, I think, that the movement to get homosexuals to be out of the closet was a very smart political choice -- though I suspect that being calmly, matter-of-factly, just-ordinary-Joe out of the closet is more effective than being more flamboyantly so. (Note, though, a possible alternative explanation: People who live in areas, work in professions, and travel in circles where they're likely to run into more gays are just more likely to support gay marriage because of these regional, professional, or social affiliations, and not because they know gays personally.) (UPDATE: Christopher Geidner correctly points out what I unaccountably missed in my original post -- 18-to-29-year-olds also oppose the amendment by a 52%-44% margin. Sorry for the error, but I think this marginally supports my danger-of-backlash point -- if indeed the new generation is likely to support gay marriage, as the 18-to-29-year-olds now do by a 56%-40% margin, the one thing that can stop such a natural political movement is a constitutional amendment triggered by a politically premature judicial decision.)

     Thanks to Matthew Yglesias for the pointer.

     UPDATE: Christopher Geidner faults me for my point that "I suspect that being calmly, matter-of-factly, just-ordinary-Joe out of the closet is more effective [as a strategy for promoting tolerance of homosexuality] than being more flamboyantly so." His objection:

There was NO purpose for Volokh to add that jab, at least not in terms of the point he was making in that paragraph. So, what are other possibilities? He just wanted to let us know that gays who look and act like straights are thought of as better than really gay gays? Honestly, I don’t think that’s it. It reads more like “Advice to the Gays,” and it is offensive. It encourages those gay men who are naturally “butch” to come out and be themselves, but it likewise discourages more “femme” guys from being completely themselves – and says that if they do, they might be hurting the movement for lesbian and gay equality (hmmm . . . just like the Massachusetts marriage ruling).

The error in this paragraph starts in the very first sentence. Of course there's a purpose for me to acknowledge that not all out-of-the-closet-ness is politically effective -- otherwise, my original unqualified statement ("the movement to get homosexuals to be out of the closet was a very smart political choice") would have been open to a pretty obvious counterargument: "Really, Volokh, do you believe that the drag queen floats on the Gay Pride Parade advance public tolerance of homosexuality?"

     I strongly suspect that (1) in fact (not in some perfect world, but in this one), the just-ordinary-Joe out-of-the-closet-ness is a very powerful political tool for promoting acceptance of gays, and (2) in fact, the flamboyant out-of-the-closet-ness actually alienates many straights. Should it? No, it shouldn't. Does it? I'm pretty sure that it dos. I don't have studies to prove this, but I'm pretty confident that this is reality.

     What am I supposed to do with this political reality, as I see it, in a post that focuses on political speculation? Just ignore it because I wish that people were more tolerant than they are? Not say it because someone may find it "offensive"? No dice.

     Finally, Mr. Geidner argues, more plausibly, that "If it helps destroy homophobia when gays come out, then won’t it help destroy rigid gender roles if people keep coming out in a completely honest way?" I think that as a practical matter this is doubtful, though possible. But it seems to be a much more plausible line of argument than suggesting that it's just improper for me to describe what I quite plausibly think to be political reality.

 
[David Post, 12/22/2003 08:55:30 AM]
Rugby, American-Style: Did you happen to catch the last play of the NFL game yesterday between the New Orleans Saints and the Jacksonville Jaguars? ESPN calls it "one of the wackiest plays in NFL history." The Saints were 7 points down, they're on their own 25, and time is left for only one play; so instead of the (stupid and generally futile) Hail Mary pass, they complete a short pass and begin a series of handoffs and short, lateral passes, moving from one side of the field to another. Five or six players ended up with the ball at some point, and lo and behold they run it in for a touchdown. [And then, incredibly enough, they miss the extra point and end up losing by one!]

     Anyone who knows rugby at all (and I am, I admit, just a novice) would've recognized this. I've often wondered why American football teams don't try to incorporate more rugby-inspired moves into their repertoires -- coordinated efforts to use handoffs and laterals and intricate, weaving runs by the players off the ball to move the ball downfield. You heard it here first -- a trend is beginning . . .

 
[Eugene Volokh, 12/22/2003 08:38:48 AM]
Religious student groups at religious university: The Foundation for Individual Rights in Education reports:

Gonzaga University's president, Father Robert J. Spitzer, S.J., has permitted the School of Law's Student Bar Association (SBA) to refuse to recognize a Christian student organization. According to the SBA, the Gonzaga Pro-Life Law Caucus's requirement that its leadership be Christian is "discriminatory." . . .

Ashley Horne, a second-year law student and co-founder of the Gonzaga Pro-Life Law Caucus, had learned from one of FIRE's public information campaigns about the administrative barriers regularly encountered on America's campuses by pro-life and Christian student groups seeking recognition. After consulting with FIRE, Horne submitted her group's constitution and leadership requirements to the SBA, which acts as an agent of the university in the matter of student group recognition. According to the SBA minutes for September 23, 2003, SBA President Albert Guadagno and others complained that the group's Christian leadership requirement was "discriminatory."

Worried that the Caucus might be denied recognition, Horne contacted Gonzaga law professor David DeWolf. In a September 25 e-mail to Mr. Guadagno, DeWolf stated that he had discussed the issue with Law School Dean Daniel Morrissey, who in turn consulted with University Counsel Mike Casey. According to DeWolf, both Morrissey and Casey were "of the opinion that university policy permits restricting a group's leadership (or even membership) to those committed to the group's religious purpose." He continued, "It is not surprising that a university operated by a religious order that restricts its own membership would be tolerant of student groups doing the same."

Undeterred, Guadagno called a closed meeting of the SBA's executive board, which Caucus representatives were not permitted to attend. After that meeting, Guadagno notified Horne and several other students that the board had ruled that the Caucus' leadership requirement violated Gonzaga University's and Gonzaga Law School's mission statements. He informed them that the full SBA would not vote on the matter.

Gonzaga Law School's Statement on Non-Discrimination declares that the school is "committed to a full and vigorous policy of non-discrimination without regard to race, color, national origin . . . or religion." It also emphasizes that "All University policies . . . are consistent with Gonzaga's Catholic, Jesuit identity and Mission Statement." Indeed, the non-discrimination policy explicitly states that Gonzaga "reserves the right to take religious faith into consideration where it is deemed appropriate." The Law School's Mission Statement goes still further, committing the law school to "providing interested students with a supportive setting to explore and deepen their Christian faith within our warm and welcoming environment for students of all religious backgrounds or secular moral traditions." . . .

Zany.

 
[Eugene Volokh, 12/22/2003 07:23:12 AM]
Nix distillation, maybe: One common response to the "inventions Romans didn't have, but that a smart though not unusually knowledgeable 12-year-old could bring back to them" question was distillation. Reader R. Horn points, though, to an Economist article that (1) says that the ancients did know about distillation for salt water and turpentine, and (2) the reason they didn't do it for alcohol may have been that distillation produces traces of poisonous methanol, unless one knows "to discard the first part of any distillation," "[s]ince methanol vaporises at a lower temperature than drinkable ethanol."

     I think that quite a few smart 12-year-olds might know that distillation occurs because alcohol boils at a lower temperature than water, so if you heat wine and then cool down the vapors, you may get the strong stuff. But I suspect that very few 12-year-olds, unless they've around chemists or, more to the point, moonshiners, would think of the methanol trick. The poisonings will pretty quickly turn them off, I think, unless they're exceptionally hardy or unusually perceptive. So I tentatively strike distillation from my list (a list that I hope to finally compile in a few weeks from the 200+ submissions, and then post).

 
[Eugene Volokh, 12/22/2003 06:54:08 AM]
What the Department of Education is funding these days: Brooklyn College history professor K.C. Johnson has a negative review of the "The Arts of Democracy" college curriculum. I can't vouch for the accuracy or completeness of the description, but if it is accurate, then it reflects pretty badly on the colleges involved. Thanks to Jerome Sternstein for the pointer.

 
[David Post, 12/22/2003 05:25:14 AM]
Tom Cruise is a Jackass: Tom Cruise, on how he instructs his lawyer to deal with libelous remarks about him in the press: "Just sue. Just do it. Sue, sue, sue. Do it. Go, go, go, go." (Quoted in the Washington Post. [Note to Tom Cruise's lawyer: the title to this post is an expression of opinion, and therefore not actionable; if you want to sue me, though, just bring it on . . .]

 
[Eugene Volokh, 12/22/2003 05:22:11 AM]
Season's Greetings (rerun): (I posted this last December, but I thought it might be worth saying again.) I've always hated the phrase "Season's Greetings," which strikes me as a classic example of leaching all the vigor and familiarity from an American tradition in the name of inoffensiveness. It grates on my ear on so many levels. First, no-one celebrates the season as such. No-one gets warm feelings when they hear about a "season" in the abstract as opposed to a particular concrete holiday.

     Second, who ever says "[fill-in-the-blank]'s Greetings"? Have you ever heard of anyone saying "Summer's Greetings"? "Graduation's Greetings"? This isn't the way normal English speakers talk.

     Third, can't we have something a bit warmer than just "Greetings"? There's nothing terribly friendly or pleasant in greetings as such. Wishing someone a happy this or a merry that is a nice gesture, but just greeting them conveys little by way of good feeling. (True, I don't approve of criticizing well-established phrases on the grounds that they're different from the sum of their parts; that's what idioms are like. But when a new idiom is being pioneered, one should look closely at its elements, since at least its original meaning and connotation will flow from those elements.)

     Now I've never much minded Merry Christmas. I am not a Christian and wasn't raised a Christian, but I certainly like having a merry day on December 25th; I'm even happy to wish others a Merry Christmas. Merry Christmas isn't an attempt to proselytize -- it's merely an expression of goodwill. I can see how some people who didn't grow up with a Christmas tradition (whether or not they're religious) might not be particularly moved by it. But I think it's unreasonable for people to be offended by this. (As I may have mentioned before, it's vitally important to maintain a distinction between reasonable offense and unreasonable offense, even as a matter of manners rather than law. It's obviously hard to tell what offense is reasonable and what isn't, but it's necessary, lest we lose literally hundreds of words and phrases that someone somewhere for some reason thinks are offensive.)

     Still, even if one decides that one doesn't want to wish people a Merry Christmas, why not stick with a familiar, sensible, and pleasant wish -- Happy New Year. The year is changing; even those Americans whose traditional or religious calendars have a different new year's day in fact live their lives by the standard American calendar. We all want our new year to be happy.

     Hence, "Happy New Year"; nothing wrong with that. "Happy New Year" -- traditional, simple, warm. "Season's Greetings" -- bureaucratese, bland, and formal.

     I am not invariably anti-P.C., in part because sometimes the political correctness forces do have it right. Columbus isn't someone to be revered (though he was no great monster by the standards of his monstrous day). Using "gay" as a general pejorative, which is apparently all the rage among kids these days, is hardly right. We should be aware that we live in a society filled with people from many traditions, and sometimes (though only sometimes) adjust our actions, words, and thinking accordingly.

     But "Season's Greetings" captures much of what makes so much political correctness so obnoxious: a tin ear for the language; a pointless rejection of cherished traditions; an insistence on finding offense where none is intended; a bureaucratization of the way we express ourselves; and the rejection of perfectly sensible alternatives that actually fit the way real Americans speak.

 
[Tyler Cowen, 12/22/2003 04:18:10 AM]
Do the French respect multilateral institutions? The French and Canadians are seeking to use UNESCO to erect additional barriers to the free trade in cultural products. Here is one summary of recent developments, here is some information on Canadian proposals. Now you might recall that the World Trade Organization has a multilateral authority to adjudicate many trade disputes. The French and the Canadians both belong to WTO, but they fear that they cannot control this forum. They seeking to move the issue of cultural trade under the purview of UNESCO, an institution far more friendly to their interests.

Current multilateral institutions have not restricted unduly the sovereignty of the French or the Canadians. Both countries have cultural quotas and subsidies, for better or worse. The so-called "cultural exception" is permitted, even if it is not fully recognized by the United States. NAFTA allows for extensive cultural exceptions, and of course the United States signed this treaty. But apparently this is not good enough. Some of the French and the Canadians are seeking to bypass current multilateral institutions and do an end-run. Venue-shopping you might call it. Contempt for multilateral institutions is another possible label.

 
[Eugene Volokh, 12/22/2003 03:04:38 AM]
Georgetown suppressing antigay viewpoints: According to The Georgetown Voice,

The Supreme Court's recent decision on sodomy is a "Moral 9/11," according to flyers distributed by students not affiliated with Georgetown in Red Square on Nov. 20. The students were removed from campus by the Department of Public Safety.

After the incident, Interim Vice President for Student Affairs Todd Olson reaffirmed the University's commitment to the gay, lesbian, bisexual, and transgender community in a broadcast e-mail. . . .

The [Lawrence v. Texas] decision "obscures our glorious past and stains our honor," said the brochures, published by the American Society for the Defense of Tradition, Family, and Property, a Catholic organization based in Pennsylvania.

The authors of the brochure acknowledge that those who are simply attracted to members of the same sex, but resist intercourse, are not sinful, "just as no one who resists the inclination to steal or lie can be called a thief or a liar."

However, a call to "work untiringly to create a moral climate whereby homosexuality is rejected" runs across the top of the flyer in bold letters.

The student passing out the brochures was a member of TFP Student Action. After learning of the student's presence, Interim Vice President for Student Affairs Todd Olson instructed the Department of Public Safety to escort him off campus. He complied without incident, according to Interim Associate Director of the Department of Public Service Doris Bey.

Red Square is a designated "free speech zone," according to the Student Handbook. The handbook, however, does deny protection to certain types of speech."Expression that is indecent or is grossly obscene or grossly offensive on matters such as race, ethnicity, religion, gender, or sexual orientation is inappropriate in a university community," it states.

Olson cited this exception in his decision to have the student removed. "The individuals removed from campus were spreading a message that was grossly offensive, and I view the removal as entirely appropriate," he said. . . .

Metz said that the protestors seemed very immature, approaching bypassers very aggressively. Caitlin Coan (CAS '04) agreed that their style of arguing was offensive. . . .

The Hoya, another Georgetown newspaper, has a similar article.

     Georgetown is a private university, and thus is not bound by the First Amendment. It has the legal right to exclude speech of which it disapproves.

     But look at it this way: The Georgetown Speech and Expression Policy does prohibit "expression that is indecent or is grossly obscene or grossly offensive on matters such as race, ethnicity, religion, gender, or sexual orientation," and the university stresses that "the University will act as it deems appropriate to educate students violating this principle." Somehow, given this incident, I don't think that "to educate" is limited to "to speak out in response to"; and this incident makes clear that "grossly offensive" isn't just limited to profanity or epithets -- or even to immaturity or aggressiveness -- but also to what the university sees as offensive ideas.

     If you were a Georgetown student, would you feel free to debate controversial issues related to sexual orientation? Or to condemn some religious views that you think are evil? Or to espouse unorthodox views about race or gender?

     Is "'Shut up,' he explained" the proper motto for an institution that aspires to be a leading university?

     Thanks to Tongue Tied for the pointer.

UPDATE: Matthew Rustler has more comments, from a Catholic perspective.

FURTHER UPDATE: A couple of people defended the Georgetown position on the grounds that the ejected student was not a Georgetown student. If Georgetown was simply enforcing a content-neutral policy of "no leafleting by people who aren't Georgetown students, faculty, or staff," its judgment would indeed be much more defensible (though still potentially subject to some criticism).

     But there is, to my knowledge, absolutely zero evidence that this was what Georgetown was doing. Georgetown's statements consistently stress that the student was ejected for his "grossly offensive" statements, not because he was a non-Georgetowner. What's more, the Georgetown speech code involved here applies equally to its students; any Georgetown student would therefore reasonably expect that if he tried to do the same, he too would be ejected (or worse).

     I'm therefore just judging Georgetown's actions based on its own explanation of its reasons. Seems the right way of approaching this.

Sunday, December 21, 2003

 
[Eugene Volokh, 12/21/2003 07:48:33 PM]
What a strange argument in favor of the death penalty: I generally support the death penalty, but I don't quite understand this column (thanks to InstaPundit for the pointer):

Those . . . such as the Prime Minister and the Foreign Secretary, who say that they oppose the death penalty (indeed, as Mr Straw put it on Monday, they continue to "campaign hard to try to extend the abolition of the death penalty") but that in this instance they are prepared to acquiesce in what they must consider to be state-sponsored, judicial murder have no such virtue. Their position is incoherent, unprincipled, and plain wrong. If they believe that it is wrong for the state to punish murderers by execution -- a perfectly valid position -- then it is, well, wrong. It is not wrong in Britain but right in Iraq or wrong in California but right in Texas.

They explain their position -- that it is all right to hang Saddam, but not to hang Huntley -- with a decidedly specious argument. According to Mr Blair, "it is for them [the Iraqis] to determine what penalties there may be". Aha! Now we are getting to the nub of the issue: Iraqis are barbarians of whom we can expect no better -- a view which has been implicit in the comments of those who say that Saddam must be tried by an international, rather than Iraqi, court. Such a stance, which seems at first instance to be respectful of Iraqi feelings, turns out on further examination to be deeply patronising.

Either capital punishment is immoral or it isn't. By refusing to condemn any potential execution of Saddam, Messrs Blair and Straw and the others who have fallen into line behind them are, from their perspective on capital punishment, supporting a grotesquely immoral act. They are also exposing the deep flaws in their opposition to the death penalty at home. If it is wrong to execute Ian Huntley, it is wrong to execute Saddam. But that works in reverse, too. If, as the Prime Minister and Foreign Secretary appear to believe, it is morally acceptable to kill Saddam, how can it be any less so to kill Ian Huntley? It is a perverted moral calculus which holds that murdering two children is somehow more acceptable than murdering 300,000. . . .

     There are at least three objections to this argument:

1. Murdering thousands of people is indeed worse than murdering a few. It's not that murdering two children is "acceptable" -- but it is less monstrous than what the wholesale butchers have done. (Again, I support the death penalty even for many people who kill one person, but I agree that mass murder is worse than smaller-scale murder.)



2. There's less risk of an innocent person being executed if executions were limited to the large-scale political killers, partly because there's less risk of mistaken identity. There is indeed still some risk that a politician would be punished for decisions that were legitimate or at least not atrocious, especially when he's tried by those against whom he may have fought a justifiable, but unsuccessful war. But it may well be that this risk is less than the risk of wrongful conviction in ordinary homicide cases -- and it will be a risk that we'll run much less often.



3. It actually makes perfect sense for the British to defer to the Iraqis on this, even if they think the death penalty is on balance wrong. Some things are so wrong that you won't do it yourself, and you'll struggle hard to keep others from doing them (even if the others are foreign countries, and you value to some extent the principle of national control over what goes on in the nation). Slavery is one example; we wouldn't say "Slavery isn't for us, but, hey, if our friends the Iraqis want to do it, it's their business." But other things are not that wrong. I think it's wrong for the government to restrict ideas it disapproves of, even evil ideas, for instance racist ones. I don't think, though, that the U.S. should go out of its way to demand that our European allies change their practices on this.
   
        The death penalty for very bad people may plausibly be described as the latter category. Again, I don't view it that way, but others disagree. The British government may conclude that they shouldn't do it; but that they'll leave to Iraqis the decision whether to execute Iraqis (and for that matter leave to Americans the decision whether to execute Americans).

     The column, it seems to me, is another example of how some people purport to find inconsistencies in their opponents' views, but reveal only their own inattentiveness to some eminently plausible distinctions that those views reflect. "How can you say you're pro-life, but support the death penalty?," some anti-death-penalty people ask. Well, that's very simple for pro-life people to answer: "pro-life" is shorthand for, more or less, "pro-life-of-innocents" (just like "pro-choice" is shorthand for "pro-choice-on-abortion-though-perhaps-only-until-viability"). There's only a logical inconsistency -- as opposed to disagreement on other grounds -- if one ignores the possibility that innocent life is plausibly different from the life of people who have murdered others. "How can you reject the death penalty generally if you support the death penalty for Saddam?" seems to me equally unsound.

 
[Eugene Volokh, 12/21/2003 03:12:04 PM]
Saddam capture tidbit? A Time press release reports:

U.S. government sources familiar with the accounts given by troops who helped capture Saddam Hussein tell TIME that the fallen dictator apparently made one feeble attempt at defiance, TIME's Timothy Burger and Phil Zabriskie report. As soldiers were handcuffing him after he was extracted from his "spider hole," these sources say, Saddam spit on his captor.

As the incident was reported by the military, according to a U.S. source, a soldier promptly slugged the old tyrant -- probably the first time in more than two decades that Saddam was powerless to exact lethal revenge on someone who stood up to him.

An official military spokeswoman in Iraq claims no knowledge of the incident. "I think this is an urban legend," she says. But the full story is yet to be told. A U.S. intelligence official, meanwhile, casts doubt on another widely reported tale: that a U.S. soldier hailed the nemesis of two Commanders in Chief named George Bush by saying: "Regards from President Bush." This person says some officials suspect the story is "apocryphal."

The full text of the story will be on TIME.com Sunday evening.

Thanks to Dan Gifford for the pointer. Sounds apocryphal to me, too, but I pass it along for whatever it's worth.

 
[Eugene Volokh, 12/21/2003 02:29:57 PM]
"Saddam Hussein and the Dollar War": Interesting analysis from Stratfor; I don't know enough about the subject to vouch for this, but it seems sound to me. Note that this is their weekly free teaser -- I don't know how much longer it will be up.

 
[Eugene Volokh, 12/21/2003 01:53:04 PM]
Yes, yes, please! Nader 2004 Presidential Exploratory Committee. The only dark side:

In the 2004 election, should this issue be part of the debate?

A multi-faceted foreign policy to wage multilateral peace and promote arms control, plus utilizing the many assets of our country's knowledge base to lift prospects for the impoverished people abroad.

Volokh's First Law of Politics: No-one can win a national election using the words "knowledge base." Ralph, hire someone who can write more inspiring slogans, or else you'll never be able to suck enough votes away from Howard Dean.

UPDATE: My friend Stephen Bainbridge has me figured out.

 
[Eugene Volokh, 12/21/2003 07:21:54 AM]
Virtual property protected -- in China: According to CNN,

A Chinese court has ordered an online video game company to return hard-won virtual property, including a make-believe stockpile of bio-chemical weapons, to a player whose game account was looted by a hacker.

Li Hongchen, 24, had spent two years, and 10,000 yuan ($1,210) on pay-as-you-go cards to play, amassing weapons and victories in the popular online computer game Hongyue, or Red Moon, before his "weapons" were stolen in February, the Xinhua news agency said on Friday. . . .

"I exchanged the equipment with my labor, time, wisdom and money, and of course they are my belongings," [Xinhua] quoted [Li] as saying of the virtual property he collected online.

The company argued that the value of the virtual property only existed in the game and was "just piles of data to our operating companies."

In the end, Beijing's Chaoyang District People's Court ruled on Thursday that the firm should restore the player's lost items, finding the company liable because of loopholes in the server programs that made it easy for hackers to break in. . . .

Let's hope that China gives equal respect to actual property that it gives to the virtual. Thanks to reader Christopher Nugent for the pointer.