Archive | May, 2004

Political blogging:

Rachel Smolkin of the American Journalism Review– a very sharp writer and an old friend from college journalism days– has a new story in the AJR on “The Expanding Blogosphere,” in large part about the nexus between bloggers and the political press and accordingly concentrating on the pro/ semipro world of bloggers and blogs currently or formerly associated with magazines and newspapers, with a bit about les affaires Lott [Trent, not John] and Kos. No real surprises for those of us who follow this stuff anyways, but a very nice piece that avoids either blog triumphalism or dismissiveness. One good passage:

Kevin Drum, a self-described “centrist liberal” and one of the more contemplative bloggers, spent two decades as a software-marketing executive before launching his blog in August 2002. In mid-March, he agreed to blog for The Washington Monthly (

His unedited blog is a comfortable fit with the magazine’s advocacy. But Drum notes that bloggers such as Reynolds and the anonymous Atrios ( are not nearly so sober, and that style “is part of what makes blogs a lot of fun.” Drum worries “if you try to put the rules of mainstream journalism onto blogs, you end up sucking the life out of them.”

While professional journalism has standards for sourcing and reporting, with blogs, the whole point “is that the standards are lower,” Drum says. “They’re able to toss stuff out that a reporter on a daily newspaper couldn’t. They express opinions loudly and with fervor. It’s not clear to me how those two things can intersect.”

Drum, who holds a journalism degree from California State University, Long Beach, admits to “some doubt about whether blogging and professional journalism can go together… If it turns out at the end of the year that the five most popular blogs are


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When did this happen?

“Bobo” appears to getting incorporated into French. The Le Monde reporter does feel the need to define the term once, but doesn’t use scare quotes, treat it as a foreign word, or mention David Brooks. The people quoted use it freely. Curiously, we get a detour into the English word “gentrification,” “which can be translated as embourgeoisement”. (Not without change of meaning it can’t.) But no mention of bobo‘s foreign genesis.

While the article contains moments of traditional French contempt for the bourgeoisie, both boboification and drawing attention to it are probably very good things in French political and social culture. Dislodging French artists and intellectuals from their traditional disgust for all things commercial, properties, or middle-class would be valuable, as would weakening the tight relationships among class, politics, and culture both in fact and in stereotype (“rich but artists; bourgeois but of the left,” etc).

Elsewhere in Le Monde: a serious, respectful, and substantial article on the dedication of the WWII memorial in Washington. […]

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Little-discussed free speech question:

I’m adding a new section on “The Unsolved Problems” to my First Amendment textbook supplement. (Eventually, if there’s a second edition, it will be worked into that.) Most of the textbook focuses on what the Supreme Court has said about various questions, such as the constitutional protection offered advocacy of violence, false statements of fact, sexually themed speech, and so on. But on some important questions, the Supreme Court has said very little; and these, I think, can be particularly interesting subjects for in-class policy discussion, precisely because there’s no binding precedent.

A couple of the topics are ones that I’ve blogged about extensively — hostile environment harassment law and crime-facilitating speech. But I thought I’d mention here another one, which is actually very important but which has gotten much less attention than it deserves: professional-client speech.

I’m not writing on the subject, so I’m not soliciting suggestions. (There have been some interesting pieces already written on it, including by my fellow Kozinski clerk Robert Kry, though many fewer than I would have expected.) I probably won’t even have time to discuss this more on the blog. Still, I thought some readers would find it interesting, so I’ll quote my summary of the question, and the problem that I recommend people use to discuss this:

2. Professional-Client Speech

a. The Issue

Many professional-client relationships — lawyer-client, psychotherapist-patient, accountant-client, even often doctor-patient — mostly consist of speech. Sometimes, of course, they involve physical conduct (surgery) or the submission of statements to the government (a lawyer arguing in court). But often they consist solely of two people talking with each other, one asking questions and the other giving advice.

And yet this communication is often subject to speech restrictions and speech compulsions that would generally be forbidden in other contexts. For instance:


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More on Amnesty International:

from Frida Ghitis at TNR.

She draws attention to a set of problems that are related to but not quite the same as the ones I noted a couple of days ago. I emphasized the organization’s institutional stance that no system of government is preferable to any other, that human rights abuses just kind of happen rather than being matters of official policy in some cases and not in others. This requires a pose of believing in equivalence among liberal democracies, theocracies, military dictatorships, and so on. [see UPDATE below.]

Ghitis notes that the press release announcing publication of this year’s report and the introductory letter from Amnesty’s secretary general, Irene Khan, that pose turns into something even more perverse. On the narrow understanding of Amnesty’s mission that is the justification of taking no stands on political questions, Amnesty should also not have a view on pre-emptive war. If it’s not entitled to an official view about the political-systemic causes of human rights abuses, it’s also not entitled to an official view about the causes of diminished respect for the UN. If it’s not entitled to say that Saudi Arabia’s system of government is just worse from a human rights perspective than is Sweden’s, it’s certainly not entitled to the view that

The global security agenda promoted by the US Administration is bankrupt of vision and bereft of principle. Violating rights at home, turning a blind eye to abuses abroad and using pre-emptive military force where and when it chooses has damaged justice and freedom, and made the world a more dangerous place.

The press release and the letter purport to complain about the fact that the war on terror and the war in Iraq have distracted attention from ongoing human rights and humanitarian crises; but they themselves skip the […]

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Spammer sentenced to 3 1/2+ years in prison: reports:

A New York state man who sent out millions of junk e-mails was sentenced to three-and-a-half to seven years in prison, the state attorney general’s office said Thursday.

Howard Carmack, known as the “Buffalo Spammer,” received the maximum sentence for 14 counts of identity theft and forgery, a spokesman for New York Attorney General Eliot Spitzer said.

Carmack sent out 825 million bulk e-mail messages using stolen identities and forged addresses, the court found, and was the first defendant to face charges under the state’s new identity-theft statute. . . .

Carmack could be out in three-and-a-half years should he behave in prison . . .


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More on the CNN junk poll:

The CNN assault weapons poll, which used to be (if I recall correctly) about 60-40 in favor of extending the assault weapons ban, is now 55-45 in favor of lifting it (or, more precisely, not extending it).

Of course, the result is still junk, and CNN should be ashamed of intimating to the public that the result is meaningful. They do write, below the graphic showing the results,

This QuickVote is not scientific and reflects the opinions of only those Internet users who have chosen to participate. The results cannot be assumed to represent the opinions of Internet users in general, nor the public as a whole. The QuickVote sponsor is not responsible for content, functionality or the opinions expressed therein.

But if the result doesn’t represent the public’s opinion, and only reflects who happened to be better organized online to drive up the statistics, then why should a news organization that aspires to accuracy and candor report it? My sense is that the reason this thing draws eyeballs is precisely that some readers, who aren’t knowledgeable in statistics, do wrongly ascribe some meaning to it.

I’m happy that people won’t be able to tout the results of this poll as evidence in favor of gun restrictions. But I’d be happier still if serious news organizations got serious about this subject, and dropped this sort of misleading nonsense. […]

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Rockin’ Book Tour Resumes Next Week:

The Rockin’ Book Tour for Restoring the Lost Constitution: The Presumption of Liberty finally concludes with two talks next week, both of which are jointly sponsored by the Los Angeles Lawyers Division of the Federalist Society and the Libertarian Law Council. A limited number of books should be available for sale and signing at the event. (The safest thing, however, would be to bring your own copy.)

These events are open to the public, though there is a fee to cover the cost of providing lunch. Advance reservations are requested. Here are the details:

Dates: Tuesday (June 1) and Wednesday (June 2), both at 12:00 Noon


Tuesday, June 1 Event: Omni Hotel/ formerly Hotel InterContinental, 251 South Olive Street, Los Angeles

Wednesday, June 2 Event: Offices of Alschuler Grossman Stein & Kahan, The Water Garden, 1620 26th St., Fourth Floor, North Tower, Santa Monica

MCLE Credit: One Hour

The cost of the June 1 luncheon is $33 if paid in advance, or $36 at the door. The cost of the June 2 luncheon is $25 if paid in advance, or $28 at the door. Please send checks for either event (made payable to the Federalist Society) to Jeremy Rosen at Horvitz & Levy llp, 15760 Ventura Boulevard, 18th Floor, Encino, California 91436. Prepayment must be received no later than May 28, 2004. You may reserve a place for payment at the door by calling Linda Frerer at (818) 995-5858.

Attendance at the luncheon is not restricted to lawyers. If you are in the LA area, I hope to see you there. Be sure to identify yourself as a Volokh Conspiracy reader. […]

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Let’s be careful with charges of hypocrisy:


Clayton Cramer posts about what he says is “The ACLU’s Stunning Hypocrisy About Free Speech.” His evidence? The only evidence that I saw in his posts was that (1) the ACLU was defending the rights of obnoxious anti-Mormon street preachers to speak on a pedestrian mall that had been sold by Salt Lake City to the Mormon Church, but (2) the ACLU is apparently not involved in defending the rights of obnoxious anti-gay street preachers to speak on a public sidewalk outside a gay pride festival in Harrisburg, Pennsylvania (see here for more details). Cramer argues based on this:

Where’s the ACLU? If they want to push for the right of offensive speech in Salt Lake City, why not in Harrisburg?

It seems increasingly clear that the ACLU has abandoned its support for freedom of speech, if that speech is directed against homosexuals.

Hence the charge (in the title of his post) of “the ACLU’s stunning hypocrisy.”

Well, let’s see: Do we know that the Harrisburg preachers called the ACLU? Cramer gives no evidence of that, and I know of none. Perhaps they didn’t call the ACLU. Perhaps they have their own lawyers and don’t need the ACLU’s help. (The ACLU had actually spoken up in the past on behalf of one of the Harrisburg preachers’ right to speak out against abortion. It’s not clear, though, whether Grove would be interested in ACLU’s direct legal help. And if the question is where ACLU’s public comment is, it’s not clear whether the ACLU’s views on the PrideFest controversy were solicited by the media — or for that matter whether they might have been solicited, given, but then not reported in any easily accessible publication.)

What’s more, to my knowledge in most instances decisions are made by […]

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Statistical analysis of my exam:

I just handed in the grades for my Free Speech Law exam, and called and congratulated the A+ and A students, always my favorite part of the grading weeks. (The exam is blind-graded, but once I hand in the final grades, I can figure out who got what.)

I also decide to do some statistical analysis. This exam involved 9 doctrinal short-answer questions, and 1 policy question. Was there much of a correlation between the scores on the doctrinal side and the policy side, I wondered? Likewise, was there much of a correlation in past years between the doctrinal multiple choice and the half-doctrine half-policy essays that I used then?

It turns out that there is indeed a correlation (and, as Joe Doherty at our Empirical Research Group determined for me, a statistically significant one). The correlation coefficient, as calculated by Excel, is 0.40 for this exam, and it has ranged from 0.25 to 0.50 for past exams. A coefficient of 1 would mean that the two raw scores are perfectly correlated (if you did well on one half of the exam, you were guaranteed to do every bit as well on the other). A coefficient of 0 would mean that the two scores were completely uncorrelated — if you did great on the doctrinal side, that wouldn’t at all predict how well you did on the other side.

So what does all this mean? Well, you shouldn’t expect the correlation between doctrinal and policy scores to be perfect — the questions test different sorts of knowledge. Nor should you expect the correlation between multiple-choice (or short answer) and essay scores to be perfect; those also test somewhat different sorts of knowledge (since some material is hard to test using multiple choice and only appears on the essay), different exam-taking […]

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Rhode Island renaming?

Jim Lawrence, responding to my facetious suggestion that the ACLU’s attempt to get a cross out of the L.A. seal might lead to calls to rename Providence, Rhode Island, pointed me to a real Rhode Island renaming suggestion — or, to be precise a Rhode Island and Providence Plantations renaming suggestion, since that’s Rhode Island’s official name. The suggestion turns out to be a couple of years old, but I missed it and thus suspect that many of you might have, too. From the Providence Journal-Bulletin, Apr. 5, 2000:

For almost two hours yesterday, black civic leaders and two state legislators implored a House committee to put a question on November’s election ballot asking whether voters want to change the state’s name to Rhode Island.

The advocates said that while plantations referred to a farm or settlement in Colonial days with no negative connotation, today it most commonly conjures up images of slaves toiling in fields and suffering indignities at the hands of their masters. . . .

“The importance of language is what it conveys today, what it means now,” state Rep. David Cicilline, D-Providence, the chief sponsor of the legislation, told the House Finance Committee. “What it evokes in people is what really matters.” . . .

“As an African-American, and as a citizen of this state, I find the state’s official name repulsive,” [Rev. Virgil Wood, of the Ministers’ Alliance of Rhode Island] said, reading from a letter he intended to submit to The Providence Journal editorial page. . . .

Cicilline said criticism that the issue is an example of political correctness is insulting to African-Americans. . . .

Actually, it seems to me that the proposal itself was more insulting to African-Americans. Most African-Americans, I suspect, aren’t such fragile flowers, who are shocked […]

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What the D.C. government is spending its time doing:

From a Washington Post column:

Andy Chasin’s story begins at home, in Woodley Park, with [a Fed Ex package]. . . . [S]omehow the air bill, the sheet of paper that contains Chasin’s address, wound up in his pocket, where he discovered it earlier this month while walking on Connecticut Avenue NW.

Having no need for the slip, Chasin tossed it into the trash can on the corner. . . .

Last Friday, Chasin, 28, was in his office at the law firm of Baker & Hostetler, when he received from the District government a Notice of Violation . . . . The city’s Department of Public Works charges Chasin with Improper Use of Public Litter Receptacles. Fine: $35.

The notice is signed by Cecil Herd, Solid Waste Inspector. Attached to the notice is the evidence: the FedEx bill. . . .

[The relevant regulation is] 24 DCMR 1009.1: “Public wastepaper boxes shall not be used for the disposal of refuse incidental to the conduct of a household, store, or other place of business. . . . ” . . .

“Folks hate to be caught doing something that maybe they weren’t supposed to do.” That’s Mary Myers, spokeswoman for the city’s Department of Public Works. “I understand he’s frustrated. But we have an enormous problem of overflowing litter cans due to people putting their home or business trash in the public litter cans.”

But Mary, a single sheet of paper?

“Doesn’t matter,” she says. “The purpose of public litter cans is for simple pedestrian trash — cups, food wrappers, a gum wrapper, the kind of thing you would have in your pocket.”

But Chasin had this paper . . . in his pocket. Would it be a violation if I tossed the tissue now in my pocket?



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Dan Drezner’s New Republic column is up, and it’s a good one. If (as Dan thinks, and I agree with him) the neocons were basically right about the value, importance, and stakes of a democratizing reform project in the Middle East starting with Iraq, the administration’s almost-willful incompetence at that project is that much more reprehensible.

While flawed, the neoconservative plan of democracy promotion in the Middle East remains preferable to any known alternatives. Of course, such a risky strategy places great demands on execution, and so far this administration has executed poorly. It would be a cruel irony if, in the end, the biggest proponents of ambitious reform in the Middle East are responsible for unfairly discrediting their own idea.


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Googling suspected terrorists:

Right Side Redux googles Adam Gadahn — the one America-born person among the seven suspected al Qaeda terrorists whose names were publicized by the Attorney General today — and finds some interesting stuff.

I haven’t checked all the facts in the Right Side Redux story, but a quick google search of my own yields similar results. I don’t know how much enlightenment one is likely to get from this, but it does seem worth checking out. […]

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