Saturday, January 10, 2004

 
[Eugene Volokh, 1/10/2004 05:40:35 PM]
More things you won't find on this site, even though these search engine queries led some people here:

10 Jan, Sat, 13:18:20 Altavista: jesus conspiracy christianity
10 Jan, Sat, 14:00:57 Google: marvel comics characters jason mutant 143
10 Jan, Sat, 15:00:04 Google: thomas friedman synagogue
10 Jan, Sat, 15:04:15 Google: washington d.c. democratic primaries toothbrushing
10 Jan, Sat, 15:31:36 Yahoo: will tylenol cause speech slur
10 Jan, Sat, 15:43:30 Google: Conservatives Club letterhead
10 Jan, Sat, 15:48:15 Google: professors' views on hamlet's mother

 
[Eugene Volokh, 1/10/2004 05:26:41 PM]
"Danes claim blister gas find":

Danish troops have found dozens of mortar rounds buried in Iraq which initial tests show could contain blister gas, the Danish army said on Saturday local time.

The Danish army said the 36 120mm mortar rounds found on Friday had been buried for at least 10 years.

"All the instruments showed indications of the same type of chemical compound, namely blister gas," the Danish Army Operational Command said on its website, cautioning that further tests were needed.

Blister gas, such as mustard gas, an illegal weapon which former Iraqi leader Saddam Hussein said he had destroyed, was extensively used against the Iranians during the 1980 to 1988 war. . . .

I'll believe it when more thorough tests are done -- in the past, supposed discoveries of chemical weapons haven't panned out -- but I pass along the news for whatever it's worth.

 
[Eugene Volokh, 1/10/2004 05:23:47 PM]
Adobe anti-counterfeiting feature: Reader Jim Herd points to this Toronto Globe & Mail story:

Adobe Systems Inc. acknowledged on Friday it quietly added technology to the world's best-known graphics software at the request of government regulators and international bankers to prevent consumers from making copies of the world's major currencies.

The unusual concession has angered scores of customers.

Adobe, the world's leading vendor for graphics software, said the secretive technology "would have minimal impact on honest customers." It generates a warning message when someone tries to make digital copies of some currencies.

The U.S. Federal Reserve and other organizations that worked on the technology said they could not disclose how it works and wouldn't name which other software companies have it in their products. They cited concerns that counterfeiters would try to defeat it. . . .

Adobe revealed it added the technology after a customer complained in an online support forum about mysterious behavior by the new $649 "Photoshop CS" software when opening an image of a U.S. $20 bill.

Kevin Connor, Adobe's product management director, said the company did not disclose the technology in Photoshop's instructions at the request of international bankers. He said Adobe is looking at adding the detection mechanism to its other products.

"The average consumer is never going to encounter this in their daily use," Mr. Connor said. "It just didn't seem like something meaningful to communicate."

Angry customers have flooded Adobe's Internet message boards with complaints about censorship and concerns over future restrictions on other types of images, such as copyrighted or adult material.

"I don't believe this. This shocks me," said Stephen M. Burns, president of the Photoshop users group in San Diego. "Artists don't like to be limited in what they can do with their tools. Let the U.S. government or whoever is involved deal with this, but don't take the powers of the government and place them into a commercial software package." . . .

The technology was designed recently by the Central Bank Counterfeit Deterrence Group, a consortium of 27 central banks in the United States, England, Japan, Canada and across the European Union, where there already is a formal proposal to require all software companies to include similar anti-counterfeit technology. . . .

Richard Wall, the Bank of Canada's representative to the counterfeit deterrence group . . .[,] said nearly all counterfeit currency in Canada is now created with personal computers and ink-jet printers.

"We've seen a shift of what would normally be highly skilled counterfeiters using elaborate equipment to basically counterfeiters who need to know how to use a PC," Wall said.

Some policy experts were divided on the technology.

Bruce Schneier, an expert on security and privacy, called the anti-counterfeit technology a great system. "It doesn't affect privacy," he said. "It stops the casual counterfeiter. I can't think of any ill effects."

Another security expert, Gene Spafford of Purdue University, said Adobe should have notified its customers prominently. He wondered how closely Adobe was permitted to study the technology's inner-workings to ensure it was stable and performed as advertised. . . .

     It's hard to fully evaluate this, because for understandable reasons Adobe isn't revealing the exact details of this feature -- we don't know for sure, then, how much of a burden it is on law-abiding customers. It's also hard to tell for sure the circumstances of how the government persuaded Adobe to do this -- whether it was simply appealing to Adobe's public-spiritedness, or whether it was using heavier-handed tactics (e.g., threatening harassment of some sort).

     But if all is as Adobe describes, sounds to me like a pretty decent step on Adobe's part (though it might have been better if their documentation had at least mentioned this). Counterfeiting is a serious problem, and if businesses can voluntarily do what they can to prevent crime with relatively little burden on the law-abiding, that's generally pretty good.

 
[Eugene Volokh, 1/10/2004 12:44:25 PM]
More on Saddam as POW: Phil Carter agrees with my analysis from last night, and has more.

 
[Eugene Volokh, 1/10/2004 10:23:21 AM]
Faked survey results: From the Washington Post:

A survey a judge cited in his decision to move Scott Peterson's capital murder trial out of Modesto contained made-up information, criminal justice students who conducted the survey told a newspaper.

The 10-county survey suggested that more jurors without bias could be found in the San Francisco Bay area or Southern California than in Stanislaus County, which includes Modesto, home town of Peterson's slain wife, Laci.

But several of the California State University, Stanislaus students who compiled the report told The Modesto Bee they used a lot of fake information because it had been too hard to gather all the data properly. The students requested anonymity, the paper said. . . .

For more on the story, see here and here. Some polling experts say, probably correctly, that the professor should have supervised the students better, and not required them to call on their own time and money -- not because the students' conduct is excusable, but because it was foreseeable, and the professor had a duty to the users of his survey to try to deter even inexcusable misconduct by the students.

     Oh, and here's something pretty annoying:

One of the seven unidentified students said Friday, "I'm really disappointed in the school. They never said how Dr. Schoenthaler didn't have permission to do this and they seemed more upset with the students. It wasn't an approved assignment."

A self-described spokesperson for the unidentified students said Friday that they are worried about backlash for their whistle-blowing, but continue to stand behind the decision.

Oh, how disappointing! The administration is more upset with students who cheated than with a professor who supposedly violated an internal administrative Human Subjects Review rule (1) that's aimed at protecting survey subjects, not at protecting the surveytakers or the accuracy of the survey, and (2) that would have been largely superfluous at protecting the survey subjects here, because the research project had none of the attributes (e.g., administration of medical procedures, questioning about embarrassing information, danger of revelation of private data, etc.) that justify Human Subjects Review requirements. So the professor's violation, if it was a violation (I don't know the details of how broadly applicable the CSU rule is), is a very small thing compared to the students' misconduct.

     And "whistle-blowing"? Does the connotation of that term really apply to the situation when someone alerts the press about his own cheating (and, incidentally, tries to avoid any punishment for it)? Does the connotation of "backlash" really cover the possibility that a cheater would be punished for his cheating?

     Thanks to How Appealing for the pointer.

 
[Randy Barnett, 1/10/2004 08:14:35 AM]
Establishing a New Court for Terrorists: There is a particularly thoughtful article by Thomas Powers in the current Weekly Standard (Due Process for Terrorists? The case for a federal terrorism court) that's not what you'd expect. Powers contends that the Bush Administration should take the initiative to protect both the national security and the due process rights of detainees by proposing to Congress that it establish a new federal court in which to try accused terrorists. Though the author is clearly sympathetic to the claims that terrorism presents legal challenges that cannot be dealt adequately with in federal civilian courts, he also is skeptical of the effectiveness of military tribunals. In addition, he criticizes the Bush administration's passivity in response to criticism and court challenges, some of which are valid, and challenges the administration to protect the rights of the innocent--whether innocent victims of terror or those innocent of terrorist activities.

. . . .INSTITUTIONAL REFORMS are needed to resolve these questions and signal clearly to Americans and a watching world that due process, even for terror suspects, matters to our government. Extraordinary measures presented as matters of executive authority, or justified in the name of security, have been tolerable during a period of adaptation to the new era, but they will fail in the long run. Leaving it to the Supreme Court to force the government to act, meanwhile, is a poor substitute for a forward-looking and forthright effort to face our unprecedented situation squarely and in a way consistent with the principles of the U.S. Constitution.

To deal with terrorism cases that could be handled under the ordinary criminal law (as were, for example, the 1993 World Trade Center bombing, the Oklahoma City federal building bombing, and the case of Zacarias Moussaoui), Congress should create a new specialized court. This terrorism court would incorporate special security measures, protect the secrecy of sensitive information and sources, and make provision in its evidentiary rules for the peculiar situations arising from operations on a battlefield or its equivalent. Terror suspects should know the charges against them, have access to attorneys (specially trained, with the proper security clearances), and enjoy a right of appeal. To ensure independence from executive branch influence, federal judges with lifetime appointments should fill the bench. A terrorism court would provide a framework for the emergence of a body of precedent and the development of a cadre of specially trained expert judges and lawyers. . . .

As I said, this article is unusually thoughtful and presents a proposal well worth considering seriously.

 
[David Bernstein, 1/10/2004 08:05:25 AM]
Supporting Ethnic-Religion Based States: I occasionally get email from readers suggesting that Israel is unworthy of support, or even existence, because it is an ethnic/religion-based state. So what about Poland? After World War II, Poland expelled its Germans and Ukrainians, absorbed Poles tossed out of Russia, and tolerated pogroms against the remaining Jewish population (for one source on all this, see here). A state that was ethnically and religiously diverse before WWII became homogenously ethnic Polish and Roman Catholic, and by design. No one talks about this much anymore, because there are no irredentist elements within and near Poland demanding that Poland either has no right to exist or must otherwise accommodate their corporate identities. (As an aside, this, I believe, is why Benny Morris argues that Ben-Gurion was too moderate in his War of Independence policies--I should also note that Morris, to his own surprise, came across evidence that the Arab powers ordered the Arab women and children of Palestine to evacuate the area, a point likely to be lost in the furor over his interview.)

I would add that no one after WWII, when Poland engaged in "ethnic cleansing," claimed Poland had no right to exist, and that at the time of the expulsions from Poland, the local minorities were not allied with hostile outside powers surrounding Poland and seeking to liquidate Poland and massacre its population. So how about it--does Poland have the right to exist?

Oh, and if Israel has no right to exist, what should replace it? Certainly not an ethnically-based Palestinian state with officially Islamist policies. Perhaps the land should be turned into a Biblically-themed amusement park?

Friday, January 09, 2004

 
[Eugene Volokh, 1/9/2004 08:46:48 PM]
Odd claim about Saddam as POW: FoxNews reports:

U.S. officials have said they plan to turn Saddam over to an Iraqi court for trial. The United States says Saddam's government killed at least 300,000 Iraqis, including thousands of Iraqi Kurds in a poison gas attack in 1988.

But the Geneva Conventions say POWs can be tried only for crimes against humanity by an international tribunal or the occupying power -- which in this case is the United States.

Really? That seems quite odd to me; I would think that the POW could be repatriated to his country of origin, and then tried by that country as a normal criminal for crimes that he committed in the country. I couldn't find anything to the contrary in the Geneva Convention on POWs. Am I missing something here? If I am (and I well might be), please let me know.

 
[David Bernstein, 1/9/2004 05:49:39 PM]
Must-read Interview with Israeli Historian Benny Morris: If you have the slightest interest in the history, current state, or future of Israel, you must read this interview with Prof. Morris. In short, he argues that even though he is still at heart a left-winger, given the barbarian state of Arab/Palestinian/Muslim culture, it will come down to "them or us," and he chooses "us," even if that means tough, even cruel actions by the Israeli government. And, though widely known for his sympathetic work on the Palestinian Nakba in 1948, he believes that Ben-Gurion erred in not expelling all Palestinians from Israel and surrounding areas. A depressing, fascinating, and scary interview.

 
[Eugene Volokh, 1/9/2004 03:11:57 PM]
More on criminal libel in Colorado: See the update to the post below.

 
[Eugene Volokh, 1/9/2004 11:35:10 AM]
Supreme Court agrees to hear Hamdi case: FoxNews so reports. It's the second war on terrorism case that the Court will have heard -- the first involves the Guantanamo detentions -- and is a tremendously important issue: Under what conditions may the government militarily detain U.S. citizens, and what role should civilian courts have in reviewing this?

UPDATE: I originally erroneously said "U.S. citizens detained in the U.S.," but of course that's the Padilla case, not this case. Don't know why the wires got crossed in my head. Thanks to Howard Bashman and Don Potts for the correction.

FURTHER UPDATE: Here are the "Questions Presented" from the petition; note that (1) they're crafted by Hamdi's lawyers, and are thus somewhat argumentative, and (2) the Supreme Court is not obligated to reach all of them:

(1) Does the Constitution permit Executive officials to detain an American citizen indefinitely in military custody in the United States, hold him essentially incommunicado and deny him access to counsel, with no opportunity to question the factual basis for his detention before any impartial tribunal, on the sole ground that he was seized abroad in a theater of the War on Terrorism and declared by the Executive to be an "enemy combatant"?

(2) Is the indefinite detention of an American citizen seized abroad but held in the United States solely on the assertion of Executive officials that he is an "enemy combatant" permissible under applicable congressional statutes and treaty provisions?

(3) In a habeas corpus proceeding challenging the indefinite detention of an American citizen seized abroad, detained in the United States, and declared by Executive officials to be an "enemy combatant," does the separation of powers doctrine preclude a federal court from following ordinary statutory procedures and conducting an inquiry into the factual basis for the Executive branch?s asserted justification for the detention?

 
[Eugene Volokh, 1/9/2004 11:03:51 AM]
Still more on the Brazil story: Just added an update to the post below -- it turns out that indeed Brazil does generally fingerprint and photograph its own citizens. Makes the Brazilian judge's shrill reaction to the American requirement that visitors from various countries (including Brazil) be fingerprinted and photographed even odder. If Brazil can do it to Brazilians, and to Americans who reside in Brazil, what's so awful about America doing it to Brazilians who are visiting America?

 
[Eugene Volokh, 1/9/2004 10:33:03 AM]
"Absent an armed insurrection type of thing": Reader Stephen Humphrey points to this this CNN story:

Officials in the popular ski resort area of Killington want the town to secede from Vermont and join neighboring New Hampshire in a dispute over taxes.

They say the town's restaurants, inns and other businesses send $10 million a year to the state capital in sales, room and meal taxes, but the state returns just $1 million in state aid to Killington.

Even more galling to the town is a statewide property tax imposed in 1997 to fund schools. The town of 1,092 won a Superior Court order that called the state's method of assessing local properties "arbitrary and capricious," but the state Supreme Court reversed that decision.

"It kind of reminds us of Colonial days," Town Manager David Lewis said Thursday. "The Colonies were being faced with the Stamp Act, the Tea Act, the Sugar Act. England wasn't giving them any rights. They were treating the Colonies as just a revenue source."

New Hampshire, just 25 miles east, has no income tax or sales tax. . . .

Secretary of State Deborah Markowitz said Killington has little chance of secession "absent an armed insurrection type of thing. . . ." . . .

Well, the New Hampshire Constitution does mention a right of revolution:

Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

But I don't think the Vermont Constitution does -- and I think that even New Hampshire would frown on "an armed insurrection type of thing" from one of its towns.

 
[Eugene Volokh, 1/9/2004 10:08:37 AM]
Speech suppression in child custody disputes: In November, I posted about a Colorado judge restricting one parent's anti-gay speech as part of a child custody order:

A Christian mother is appealing a judge's decision that prohibits her from teaching her daughter that homosexuality is wrong.

Cheryl Clark, who left a lesbian relationship in 2000 after converting to Christianity, was ordered by Denver County Circuit Judge John Coughlin to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic." . . .

Her former lover, Elsey McLeod, was awarded joint custody of the child, an 8-year-old girl who is Dr. Clark's daughter by adoption. . . .

I noted that judges have restricted many different kinds of speech in child custody orders, including pro-gay speech as well. (I know of a couple of cases in the 1970s, but I'm sure there were others since.) Well, here's a case from earlier this week that likewise involves a restriction on pro-gay speech (thanks to How Appealing for the pointer):

On February 6, 2002, Cher Lynn Hogue, mother of the couple's minor child, filed a complaint for divorce alleging irreconcilable differences and inappropriate marital conduct. In the complaint she alleged that her husband Joseph Randolph Hogue, Jr., Appellant and father of the minor child, left the marital home, his wife and child to "pursue his gay lifestyle." She further alleged that her husband would expose their son to his new lifestyle, that such exposure was against the advice of the child's counselor and requested a restraining order to prevent such.

A Temporary Restraining Order was entered the day the Complaint was filed, which reads in pertinent part:

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Husband, Joseph Randolph Hogue, Jr., shall be and he hereby is RESTRAINED, pending a final hearing in this cause, from taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle.

On August 2, 2002 Wife filed a Petition for Contempt alleging that Husband had violated the restraining order by allowing the child to be in the presence of the father's "gay lover" at Husband's apartment and at church and that Husband told the child that he was gay. . . . The Complaint alleges that Husband made statements such as "when someone is gay, they are born like that;" that his boyfriend is in love with him; that "Sean (Husband's boyfriend) is attracted to big men;" and that he (Husband) thought
his son was old enough to understand about his father's lifestyle. Further, Wife alleged that Husband's boyfriend's shoes are in the child's closet at Husband's apartment and that his clothes are scattered about the apartment. On September 16, 2002 the Chancellor found Husband to be in contempt for telling his son that he was gay and sentenced him to serve two days in the Williamson County Jail. The Chancellor also modified the parenting plan by eliminating all of Husband's Thursday night visitations with his son, limiting Tuesday night visitations, and authorizing Wife to make all decisions regarding their son with the exception of emergency decisions that may arise while Husband and his son were visiting. . . .

The appellate court ultimately set aside the contempt citation, because it found that that the order "did not put Husband on notice that he was restrained from telling his son that he was gay." Nonetheless, the court upheld the order generally, though without making it clear just what its boundaries were. Oddly enough, the decision doesn't mention the First Amendment at all, which is usually a sign that the challenger didn't raise a First Amendment argument, or raised it only in passing.

     By the way, the reason I say the order is a speech restriction is two-fold: First, the trial court clearly saw it as a speech restriction, in concluding that it barred the father even from saying that he was gay; though the appellate court concluded the order didn't go that far, presumably the trial judge intended the order to apply to other kinds of speech as well, such as to broader discussions of the father's gay lifestyle.

     Second, the concern that seemed to be animating the trial judge was that exposure of the child to the father's gay lovers or the father's gay lifestyle would send the wrong message to the child: a message that homosexuality is acceptable behavior. (Again, this is made clear by the trial judge's contempt citation.) The judge was thus restricting the activities "taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle" precisely because of their expressive content. It's pretty well-settled First Amendment law that when physical conduct is restricted precisely because of the message it sends, it's treated as a speech restriction. That's why we'd pretty clearly understand an order barring "taking the child around or otherwise exposing the child to [Catholics / Communists / objectivists] and/or his [Catholic / Communist / objectivist] lifestyle" as a speech restriction -- it would prevent physical conduct (taking a child places and showing him things) precisely because of the message that the conduct is likely to send. Likewise for this order.

     Had the order been aimed at preventing noncommunicative harm to the lifestyle -- e.g., a ban on "taking the child around or otherwise exposing the child to crocodiles and/or his close-contact-with-crocodiles lifestyle" -- then I think there'd be much less of a First Amendment problem. But the trial judge's actions, as well as the terms of the order, make clear that this order was aimed precisely at preventing the father from teaching the child that homosexuality is acceptable.

 
[David Bernstein, 1/9/2004 09:53:37 AM]
Manned Mars Mission: Is there any government boondoggle too wasteful for George W. Bush?

 
[Eugene Volokh, 1/9/2004 09:35:36 AM]
Criminal libel: The Rocky Mountain News reports:

A Weld County man is suing Greeley police for seizing the computer on which he publishes an online newsletter called The Howling Pig, which takes satirical barbs at a vocal university professor.

Thomas Mink, of Ault, a 24-year-old English major at the University of Northern Colorado in Greeley, said police have warned that he likely will be charged with criminal libel because The Howling Pig makes fun of Junius "Jay" Peake, a Monfort Distinguished Professor at UNC and a specialist in financial markets.

The Howling Pig, online at www.geocities.com/thehowlingpig/, says its editor, founder and spiritual leader is "Junius Puke," an apparent play on Peake's name. The newsletter describes Puke as a former roadie for the band KISS who is taking time off "from his well-earned, corporate endowed sinecure at a small western university in order to assist in the publication of The Howling Pig."

A disclaimer states that Puke is not Peake. It goes on to describe Peake as "an upstanding member of the community as well as an asset to the Monfort School of Business where he teaches about microstructure."

In one issue, a column purportedly written by the fictitious "Junius Puke" criticized UNC Board of Trustees Chairman Dick Monfort as "too stupid and irresponsible for the 'Party' to give you any real power" and said the governor put Monfort on the board because he is a wealthy campaign contributor.

The Puke column urged Monfort to resign from the UNC board and live at the Greeley Country Club. . . .

No subsequent issues [of The Howling Pig] have appeared.

"We have another one more or less ready to go, but nobody wanted to do it for fear that we'd go to jail," Mink said in an interview Thursday. . . .

     Criminal libel statutes are very rarely enforced, but if properly drafted, they are likely constitutional. The seizure of the computer might possibly be constitutional as well, because the computer contains evidence that may be relevant to the prosecution.

     But, first, this particular criminal libel statute (Colo. Rev. Stat. ? 18-13-105) is almost certainly unconstitutional:

(1) A person who shall knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel.

(2) It shall be an affirmative defense that the publication was true, except libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living.

To be constitutional, criminal libel statutes must at least (1) be limited to situations where the speaker knows the statements are false, or is reckless about whether they're false (negligence sometimes suffices for compensatory damages, but not for punishment), and (2) put the burden of proving falsehood on the prosecution, rather than putting the burden of proving truth on the defendant. (A statute limited to speech on matters of purely private concern might possibly omit these requirements, but this statute is not so limited.) This statute does not follow these two rules; and while a court might conceivably read an implicit knowledge/recklessness requirement into the statute (the coverage of the term "knowingly" in paragraph 1 is ambiguous), it probably won't just ignore the specific provision that the defendant must prove truth. A court thus ought to strike down the statute on its face, and leave it to the legislature to enact a properly bounded statute. (NOTE UPDATE BELOW.)

     Second, while the site no longer seems to be available (UPDATE: I'm told that it's still up, but hard to access because too many people are trying to read it), it sounds like the statements would be clearly understood as parody or fiction, and not factual allegations. This would make them categorically protected, against criminal libel prosecution or civil libel lawsuits.

     And, third, my sense is that these sorts of criminal libel prosecutions, seizures, and arrests almost invariably involve favoritism on the part of the government. Seriously, what do you think the average Joe's chances would be of getting the police to seize a computer that was being used to say nasty things about him? Pretty low, I'd wager; the police would quite reasonably point out that they've got better things to do than intercede into this sort of dispute, especially over a parody, and especially when the criminal libel statute is old and quite likely unconstitutional. As I mentioned, criminal libel prosecutions are very rare. So, I suspect, criminal libel law ends up punishing not libel generally, but libel against people who are prominent or influential, or with whom the police and prosecutors sympathize. (And, as we see here, it can be used to deter even speech that isn't actually libelous.)

UPDATE: Reader Dave Heller pointed out a case that I had missed, in which the Colorado Supreme Court disagreed with the above analysis -- People v. Ryan, 806 P.2d 935 (Colo. 1991). In Ryan, the court held that (1) the criminal libel statute was constitutional except when the speech is about a public figure and on a matter of public concern; and (2) it was constitutional to place on the defendant the burden of proving falsity. I think it's wrong on both counts: I think the statute is unconstitutionally overbroad even as modified, because (1) it punishes even negligent or reasonable mistakes of fact about private figures on matters of public concern -- speech that, under Gertz v. Robert Welch, may not be punished -- and (2) it improperly leaves the defendant with the burden of proving truth in private figure/public concern cases, which is unconstitutional under Philadelphia Newspapers v. Hepps. But obviously the Colorado courts disagree with me on this. It will be interesting to see what the federal courts in Colorado think; Mink filed the lawsuit in federal court, and while lower Colorado courts are bound by the Colorado Supreme Court's decision, federal courts aren't. (Of course, the point I mention above under "Second" remains valid even if the Colorado Supreme Court decisions is accepted.)

     Heller also writes:

In Colorado there has been at least one subsequent conviction for what appears to be a private libel. [ In 1996, an Arapahoe County man was sentenced to 45 days in jail and 200 hours of community service after being convicted of criminal libel for publishing fliers that falsely accused his daughter's grandparents of molesting children. See Suburban news briefing: False charges earn jail time, Rocky Mtn. News, Jan. 6, 1996, at 24A.]

But in two instances state prosecutors reportedly investigated bringing charges against the media -- a religious talk show for disparaging statements about homosexuality; and, quite curiously over press coverage of the Jon Benet Ramsey murder case.

Colorado thus seems a bit more willing to use criminal libel prosecutions than other states are -- but such prosecutions are still very rare, even in Colorado.

FURTHER UPDATE: J.B. Holston reports that "The ACLU was granted its temporary restraining order in [this case], and the student's (and his mother's) computer will be returned tomorrow."

 
[Eugene Volokh, 1/9/2004 09:13:37 AM]
More on Brazil and fingerprinting: As readers doubtless recall, a Brazilian judge has mandated that all visitors to Brazil from the U.S. be fingerprinted and photographed, in retaliation for the U.S. imposing a similar requirement on visitors from Brazil and other countries. The judge also condemned the U.S. requirement as "absolutely brutal, threatening human rights, violating human dignity, xenophobic and worthy of the worst horrors committed by the Nazis."

     Reader Rick Pura points to this page, which reports that, as of 1996,

In Brazil, for example, all residents are obliged to carry at all times a plasticated flexible card the size of a credit card bearing a photograph, thumb print, full name and parents' names, national status (Brazilian national or alien resident) and a serial number.

Can any readers of this blog who are familiar with Brazil confirm or deny this?
UPDATE: Reader Marcelo Pecanha from Rio de Janeiro generally confirms the above, as do a couple of other readers, though with a qualifier:

I am a Brazilian national, and I feel compelled to offer give my two cents here.

First of all, anti-american sentiment in Brazil is now approaching mass hysteria, polls showing that we are actually worse than France in this area. Second, we have just elected our second left-leaning president in our democratic history. First time that happened, it lead to military coup (that was 1964) with full suppport from the USA.

This is the framework from which this fingerprinting decision emerged. I am not a lawyer, and I have no idea how a judge in Mato Grosso (which is the state thats hosts the Pantanal area, far from either Rio de Janeiro, Sao Paulo or our capital Brasilia) can have this kind of broad jurisdiction, but all you read about the comparisions with Nazi Germany are shamefully true. Newspapers here are simply loving it. The only one that is moving to change that is the one who has the most to lose: the Mayor of Rio de Janeiro. He is appealing the decision, and most likely will overrule that.

About the ID's, I find that americans tend to exagerate a bit on this issue. We have a national ID system from as long as I can remember. I has all the data your reader points, including a right thumb fingerprint, but we are required to carry them only if we need a photo ID. . . .

Do we need to carry our ID's all the time? On theory, no. But you have to understand that "probable cause" for Brazilian police is not the same as for american police. If they think they have cause to search you they, probably can without bothering with a posteriori law suits. And then, they can ask you for your ID and detain you if you don't have it. Then again, nowhere else you have a police force so restrained. . . .

Me? I always have my ID in my wallet. . .

The reader also points out that this sort of ID requirement is no big deal, and that the Brazilians shouldn't be faulted for it -- and I agree. There are plausible arguments against it, but also plausible arguments for it. But I wasn't the one who was condemning the Brazilians for fingerprinting and photographing Americans -- it was the Brazilian judge who was condemning us for fingerprinting and photographing Brazilians. And now it turns out that this "absolutely brutal, threatening human rights, violating human dignity, xenophobic and worthy of the worst horrors committed by the Nazis" action on the part of the Americans is apparently something that the judge's own government require of its own citizens (as well as foreigners who reside in Brazil). The judge's objections are in retrospect only getting weirder.

 
[Tyler Cowen, 1/9/2004 06:13:33 AM]
Being fingerprinted in Brazil: As many VC readers may know, the Brazilian government has started fingerprinting American visitors, as a kind of retaliation for how we now treat Brazilian visitors. My friend and colleague David Levy just flew to Brazil, and he offers the following account of the process:

"The Brazilian authorities are indeed engaged in "tit-for-tat" for US border policies. It is hysterically funny.

The US policy is to digitize fingerprints to match visitors against various watch lists. The digital photos are presumably recordered to allow the various agents to do a rapid identification in the field if the fingerprint match turms up a "person of interest." One staggers at the computational resources thrown into this effort.

At the Brazilian point of entry, the American passport holders got a special line. Since there aren't many, this shortened the queue. Thank you! The digital photo was taken by a young lady with what looks like a $99.95 camera. The identification tag is a piece of paper with my name neatly printed -- by me -- held across my chest. Then my right thumb print is inked unto the paper and the paper is put in a pile. That will work.

I'm willing to bet that the requirement for a separate line to deal with American passport holders reduced the cost to Americans of visiting Brazil. The probability of the authorities being able to use the "information" collection floats around zero. Some benefit; no cost."

Click on the above link, and read David's renowned account of how economics acquired the name "dismal science."

 
[Eugene Volokh, 1/9/2004 03:17:29 AM]
Lawsuit over anti-Catholic sculpture: Washburn University, a public university in Kansas, is displaying an anti-Catholic sculpture. The sculpture apparently "depicts a Catholic bishop with a grotesque facial expression wearing a phallus on his head that is shaped like a bishop's miter" (a photo is visible in this news story, and apparently it's not clear whether any phallic connection was intentional), and the caption says "The artist says, 'I was brought up Catholic. I remember being 7 and going into the dark confessional booth for the first time. I knelt down, and my face was only inches from the screen that separated me and the one who had the power to condemn me for my evil ways. I was scared to death, for on the other side of the screen was the persona you see before you.'" The sculpture was apparently selected by "artists and art teachers representing Washburn's Campus Beautification Committee" for display -- this isn't some open forum where anyone can put up a sculpture -- and, as best I can tell, it isn't an obvious part of any broader display (as a painting might be in a museum).

     The Thomas More Law Center is suing Washburn on the grounds that the display by a government-run university of an anti-Catholic sculpture constitutes disapproval of religion. Endorsement of religion (religion generally or a specific religion in particular), the Supreme Court has held, violates the Establishment Clause; but whenever the Court has said this, it has usually also said that disapproval of religion would be equally unconstitutional. (See here for citations.) Sounds like a pretty strong argument to me.

     If Washburn were allowing the sculpture as part of an open forum (anyone can put up a sculpture for a week), then people who were familiar with the open forum would realize that Washburn isn't endorsing the sculpture. If the sculpture were a work by a famous artist, or presented as part of an exhibition of art of a certain era, then again people would probably perceive that Washburn is just displaying the work for its historical or artistic importance (just as a museum exhibition of 16th-century Italian art wouldn't be seen as endorsing Christianity just because many of the great paintings of the time were on Christian themes). But as it stands, an observer seeing the sculpture, and knowing that it was specially selected for display by the University, would perceive it as the University's approval of an anti-religious message.

     I'm not sure that such lawsuits should succeed: It's not clear to me that courts should decide what works even a public university may display, and deciding what constitutes endorsement or disapproval is often very hard, especially when it comes to art (though in this case the message of disapproval seems pretty clear). But once the Court has started doing this as to art that endorses religion, there's a pretty strong case that courts should do the same as to art that disapproves of religion. It will be interesting to see how all this comes out.

     If anyone knows more of the story behind the sculpture, the artist, and the decision to put it up, I'd love to hear it.

UPDATE: Miter? Phallus? Both? Readers are split -- you be the judge; see here for a picture. In any case, even without the phallic link, the sculpture coupled with the title and the caption seems pretty anti-Catholic to me.

Thursday, January 08, 2004

 
[Randy Barnett, 1/8/2004 05:39:39 PM]
Originalism and the Role of Precedent: At the annual meeting of the Law Professor Division of the Federalist Society this past weekend in Atlanta, I moderated a panel on "Transitions to Originalism" which concerned how, if one accepts originalism as the proper method of constitutional interpretation, do you move from where we are to restore the original meaning? An important aspect of this question is the proper role of precedent in a system in which faith is pledged to a written constitution. Larry Solum was one of the panelists and gave an excellent talk. Now he has published an expanded version of his talk on Legal Theory Blog. It poses a wonderful "formalist" challenge to those who, like myself, think that the original meaning of the Constitution is and should be binding on judges. Here is the introduction:

Frequent readers know that I am a self-avowed neoformalist. What does that mean? Putting it in the negative, I reject the idea that law should be used instrumentally by judges to achieve the judge's idea of what constitutes good policy. On the positive side, I have argued that judges should adhere to "the rules laid down," roughly the text of statutes and constitutions in light of evidence of their original meaning. For a very brief summary of my views, surf to A Neoformalist Manifesto. In this post, I will simply assume that a formalist legal regime is the goal, and ask the next question: "How can we get to formalism?" This is too big a question for a single blog post, so I will limit my discussion to an important subset of this question: "How can we get to a formalist constitutional regime?"

I am not going to argue for the virtues of formalism. Instead, for the sake of argument we can begin with the assumption that the goal is a formalist constitution--more or a less a constitutional regime where courts look to the text, structure, and original meaning of the Constitution as sources of interpretive authority and not a regime where judges rely on their own beliefs about what is just or what will produce the best consequences as a source of constitutional law.

We do not have a formalist constitution today. What if we had the political will to achieve that goal? What is the best way to get to constitutional formalism? . . .

 
[Eugene Volokh, 1/8/2004 05:07:25 PM]
Another legal publishing story: Carolyn Elefant writes:

I read your post on Jared Gross and how he was able to get his student note published in a journal. I was never on law review in law school but I published an article a few months after graduation and have been published in journals twice more. I have found that it's surprisingly easy to get published in a journal -- after all, who but law professors (and even them) have the time or desire to put together a 400 footnote piece. . . .

So if you've got something you've written (or want to write), polish it up and send it out. Go here for links to law review addresses (postal and e-mail).

 
[Eugene Volokh, 1/8/2004 03:56:29 PM]
Discrimination based on ethnicity: My earlier post on color discrimination led a reader to ask -- how exactly does Title VII bar discrimination based on ethnicity? It mentions race and national origin, but those aren't necessarily the same as ethnicity; for instance, discrimination against a third-generation Italian-American because he's of Italian extraction might be described as neither race discrimination (since Italians are generally considered white these days) nor national origin discrimination, if "national origin" is interpreted as the place where the person was born. Ethnic (rather than religious) discrimination against Jews (for instance, refusal to hire even an atheistic Jew because he is ethnically Jewish) is even harder to describe as national origin, since ethnic Jews are generally seen as ethnically Jewish regardless of where their ancestors came from, unless you think back several millenia.

     As it happens, though, the law deals with these semantic conundrums the same way it deals with many (though not all) semantic conundrums: by ignoring them. The courts have generally treated Title VII as barring ethnic discrimination; the explanation would presumably be that "national origin" does refer to ethnicity, but courts often don't even say it that explicitly. It's just the way the law has developed, and it's now pretty well-settled. See, e.g., Hampel v. City of Denver, 886 F. Supp. 756 (D. Colo. 1994); East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 405 (1977); Malhotra v. Cotter & Co., 885 F.2d 1305, 1308 (7th Cir. 1989).

     The Civil Rights Act of 1866 is a somewhat different story: Its prohibition on discrimination based on "race" has been interpreted as applying also to discrimination based on ethnicity -- such as Jewish, Arab, etc. -- see Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987); Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617 (1987) -- because apparently in the late 1800s, various ethnic groups were indeed often referred to as separate "races."

 
[Eugene Volokh, 1/8/2004 03:06:34 PM]
Free trade: Michael Kinsley (Slate) has a good piece on the subject.

 
[David Bernstein, 1/8/2004 02:55:41 PM]
Dean's a Believer: From Marni Soupcoff, who is a bit skeptical about Howard Dean's sudden profession of religious faith:

Dean's a Believer

(Sung to the tune of the Monkees' I'm a Believer)

I thought God was
Only true for Republicans
Meant for some white trash
But not for me
God was just so kitschy
That's the way it seemed
Wind-powered energy
Was more for me

And then I saw the polls
Now I'm a believer
Not a trace
Of doubt in my mind
I'm pi-ous
I'm a believer
I couldn't leave God
If I tried

I thought God was
More or less for low-class dupes
But the less I prayed the worse
I polled, oh yeah
What's the harm in claiming
Jesus is my guy
Southern votes got me kneeling
That's no lie

And then I saw the polls
Now I'm a believer
Not a trace
Of doubt in my mind
I'm pi-ous
I'm a believer
I couldn't leave God
If I tried

God was just so tacky
That's the way it seemed
Organic pilafs

Were more for me

And then I saw the polls
Now I'm a believer
Not a trace
Of doubt in my mind
I'm pi-ous
I'm a believer
I couldn't leave God
If I tried

Then I saw the polls
Now I'm a believer
Not a trace
Of doubt in my mind
Now I'm a believer
Yeah, yeah, yeah
Yeah, yeah, yeah
I'm a believer
I'm a believer
I'm a believer

And if you love dogs, I'm a retriever

And if you're a football fan, I'm a receiver

And if you're into wool, I'm a weaver



FADE

 
[Eugene Volokh, 1/8/2004 01:17:49 PM]
Just what color are you? The Civil Rights Act of 1964 bars discrimination based on race, religion, national origin, sex, and color. "Color" discrimination has generally been seen as pretty much a synonym for race or ethnicity discrimination; I suppose that inclusion of the term makes clear that, for instance, discrimination against dark-skinned blacks and in favor of light-skinned blacks is illegal, but in litigation there's rarely much of a discussion of color as such, separately from race.

     But employees who file complaints with the Equal Employment Opportunity Commission generally don't know that. They see that they may allege discrimination on various bases, including color, so they allege color discrimination as well as race discrimination. And then they have to self-describe the color.

     This yields some odd results: It's common for people to self-describe as being "white" or "black," but it's a bit strange -- especially given modern norms -- to see the 133 FLB-EEOC decisions where a person has labeled his color as "yellow" and 19 where the person said "red." Still more unusual is when people get too literal: hence the seven cases where people said they were "tan," two "beige," one "chocolate," one "pink," and one "off-white."

     I'm pretty sure there's no broader legal or political point flowing from this -- but it's an odd circumstance that I thought some readers might find interesting.

 
[Eugene Volokh, 1/8/2004 10:43:35 AM]
Voting alignments: Yesterday I asked:

The Harvard Law Review, vol. 117, p. 481, counts the percentage of times that each pair of Justices voted together in the 2002-03 Term (apparently the number of times they joined the same opinion, not just reached the same bottom line -- "the number of decisions in which the two Justices agreed in a majority, plurality, dissenting, or concurring opinion"). According to this table, which Justices were most often aligned?

Mostafa Sabet, Will Trachman, Marc Weinstein, David Gil, and Barry Jacobs got the right answer: Souter and Ginsburg, who voted together in 91% of the cases. Rehnquist and Kennedy voted together in 89.7%; Ginsburg and Breyer in 84.4%; and Scalia and Thomas also in 84.4%. Thomas and Breyer were least aligned, voting together in 44.7% of the cases, and only 12.5% of the nonunanimous ones.

     For similar information from past years, see Sasha's post from last July.

 
[Eugene Volokh, 1/8/2004 10:37:20 AM]
Law professor fame: Gary O'Connor reports that Yale law professor Akhil Amar was apparently mentioned during last night's West Wing episode:

Josh Lyman said "One of my law school classmates published an article on the constitutionality of Lincoln's general order" and another character (a lawyer from North Carolina complaining about the fact that North Carolina's copy of the Bill of Rights was stolen by a Union soldier in the Civil War) said "Akhil Amar."

Amar is a consultant to West Wing.

 
[Eugene Volokh, 1/8/2004 09:28:50 AM]
Scooped! Just noticed that John Rosenberg's excellent Discriminations blog beat me by 3 days to the Flagstar racially discriminatory loan fees story -- and even used the "affirmative action bake sale" analogy. Priority: Rosenberg.

 
[Juan Non-Volokh, 1/8/2004 08:27:43 AM]
More on DDT: Those interested in DDT -- the miracle pesticide that saves human lives but threatened bald eagles and other raptor species -- should read Ronald Bailey's latest Reason column here. It is a thoughtful counterpoint to claims that DDT never had any impact on birds (see, e.g., here). To get to my prior posts on DDT, start here.

Wednesday, January 07, 2004

 
[Eugene Volokh, 1/7/2004 06:45:57 PM]
A heartening tale for students writing law review articles: Reader Jared Gross writes:

I am writing to inform you of . . . [the] help you provided me, which has resulted in my Journal note being given an offer of publication. My own Journal . . . declined to print my note . . . . [But] another law review has made me an offer . . . . So instead of a "student note" it is an "attorney article."

Why do you care? When I began as a staff member on my journal, I was advised to read your piece on writing a student note. Then, a week ago, I was perusing your blog and followed a link that brought me to the list of journals/reviews accepting submissions via email. Well, two weeks later, and I have an offer.

This could be you!

 
[Eugene Volokh, 1/7/2004 03:48:53 PM]
Sex discrimination in New York Times book review? Duncan Frissell discusses the subject.

 
[Eugene Volokh, 1/7/2004 03:37:41 PM]
New Stu's Views:

 
[Eugene Volokh, 1/7/2004 02:25:18 PM]
Voting alignments: The Harvard Law Review, vol. 117, p. 481, counts the percentage of times that each pair of Justices voted together in the 2002-03 Term (apparently the number of times they joined the same opinion, not just reached the same bottom line -- "the number of decisions in which the two Justices agreed in a majority, plurality, dissenting, or concurring opinion"). According to this table, which Justices were most often aligned? I'll post the answer tomorrow, and note the first person who figured out the correct answer -- but no fair peeking! (UPDATE: The answer is here.)

UPDATE: The first three responses were Scalia and Thomas. But if the answer were that obvious, why would I be asking?

NOTE: I originally omitted "in the 2002-03 Term"; sorry about that! Fortunately, most of my correspondents seem to have assumed this.

 
[Tyler Cowen, 1/7/2004 12:23:35 PM]
The new Bush immigration plan: CNN.com offers one summary. The key plank is to give illegal workers a three or possibly six-year temporary visa if they step forward with an [illegal] job in hand. When the temporary visa expires, then they have to leave the country. In the meantime they could apply for a greencard, although they would not receive preferential treatment.

The full details remain to be hammered out, but I see at least one obvious flaw with the idea. Most illegal immigrants do not much trust governments of any kind. Unless they expect a significant boost in wages, why should they step forward? To enjoy the benefits of U.S. federal labor regulations? Try telling that story around rural Mexico, where many of the workers come from. The only question is whether you get laughs or hostility in response.

I wonder also how employers of illegals should feel about such an offer to legalize the workers. Either wages will go up or not. If wages don't go up, workers won't step forward. If wages do go up, employers won't necessarily want illegal workers to step forward and may pressure them not to. There is also the question of what legal liability the employer would have, if his workers step forward and admit their illegality.

I can see that this policy is a move in the right direction, but I suspect that a true, workable amnesty will have to be more "blanket" in nature.

 
[Randy Barnett, 1/7/2004 12:13:20 PM]
Cultures of Fear: Mark Steyn has an interesting column, Go ahead, burglar, make my day, in which he compares a community that allows personal self defense from one that discourages or punishes it.

But that's the point: you're there, the police aren't. And, even in jurisdictions whose constabularies aren't quite so monumentally useless as Britain's, a citizen in his own home should have the right to make his own assessment of the danger without being second-guessed by fellows who aren't on the scene.

And, once you give the citizen that right, he hardly ever has to exercise it. Take Miss Smith's situation: she's at home, but the burglar still comes a-knocking. Thanks to burglar alarms, British criminals have figured out that it's easier to wait till you come home, ring the door bell, and punch you in the kisser.

In my part of the world, that's virtually unknown. In America as a whole, 12.7 per cent of burglaries are of "occupied homes"; in Britain, it's 59 per cent. Installing a laser system may make your property more secure, but it makes you less so. As for Ann Widung's "culture of fear", it's not American therapists but English ones who've made a lucrative speciality out of treating children traumatised by such burglaries.

(Thanks to Instapundit for the link)

 
[David Bernstein, 1/7/2004 11:40:01 AM]
Observant versus non-Observant Jews: This story (via How Appealing), about local opposition to a Chabad-Lubavitch synagogue, spurred largely by less-observant Jews, reminds me of what my observant Jewish friends often tell me: the worst boss to have is often a secular Jew, who often evinces hostility to the observant Jews' religious requirements; much better to have a Christian boss, especially a religious Christian boss, who tends to be far more accommodating of Sabbath observance, kashruth, and other concerns of the observant Jewish employee. On the other hand, concerns by less-observant Jews about the religious makeup of the community are not motivated by pure prejudice. Less-observant Jews tend to be extremely loyal to, and supportive of, good local public schools, while Orthodox Jews usually send their kids to Jewish day schools and therefore have far less interest in the public schools (which can also affect local property values).

 
[Jacob Levy, 1/7/2004 11:34:00 AM]
Imperialism and Colonialism Chris Brooke is plugging Sankar Muthu's excellent book Enlightenment against Empire. I've mentioned it before, as well, but thought I'd take the occasion to mention the upcoming conference "Colonialism and Its Legacies" I'm cochairing with my colleague Iris Young April 23-25. (That's the same weekend that APA Central is in Chicago-- philosophers coming to town for that conference should feel free to walk the couple of blocks to our conference as well. Muthu is among the presenters; as are most of the other leading historians of political thought about empire and colonialism.

With the American Society for Political and Legal Philosophy meeting out of the way, the colonialism conference becomes my next full-time preoccupation. But speaking of the ASPLP, the newest volume of its Nomos series is out: Secession and Self-Determination, coedited by Stephen Macedo of Princeton and Allen Buchanan of Duke. I think it's an especially good one, with contributions from Donald Horowitz, Wayne Norman, Margaret Moore, Mark Brandon, and Buchanan himself, among others (where, yes, "others" includes me.)

 
[David Bernstein, 1/7/2004 10:29:31 AM]
Ninth Circuit (Sort of) Gets it Right: Peterson v. Hewlett-Packard:

conflict between Peterson and Hewlett- Packard arose when the company began displaying "diversity posters" in its Boise office as one component of its workplace diversity campaign. The first series consisted of five posters, each showing a photograph of a Hewlett- Packard employee above the caption "Black," "Blonde," "Old," "Gay," or "Hispanic." Posters in the second series included photographs of the same five employees and a description of the featured employee's personal interests, as well as the slogan "Diversity is Our Strength."
Peterson describes himself as a "devout Christian," who believes that homosexual activities violate the commandments contained in the Bible and that he has a duty "to expose evil when confronted with sin." In response to the posters that read "Gay," Peterson posted two Biblical scriptures on an overhead bin in his work cubicle. The scriptures were printed in a typeface large enough to be visible to co-workers, customers, and others who passed through an adjacent corridor. One of Peterson's postings was taken from Corinthians 10:12. The other featured the following passage from Isaiah:
The shew of their countenance doth witness against them; and they declare their sin as Sodom, they hide it not. Woe unto their soul! For they have rewarded evil unto themselves. Isaiah 3:9
Subsequently, Peterson posted a third scriptural passage. This time he chose the well-known and highly controversial passage from Leviticus:
If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination; they shall surely be put to death; their blood shall be put upon them. Leviticus 20:13
Peterson's direct supervisor removed the scriptural passages after consulting her supervisor and determining that they could be offensive to certain employees, and that the posting of the verses violated Hewlett-Packard's policy prohibiting harassment. Throughout the relevant period, Hewlett-Packard's harassment policy stated as follows:
Any comments or conduct relating to a person's race, gender, religion, disability, age, sexual orientation, or ethnic background that fail to respect the dignity and feeling [sic] of the individual are unacceptable.
*2 Over the course of several days after Peterson posted the Biblical materials, he attended a series of meetings with Hewlett-Packard managers, during which he and they tried to explain to each other their respective positions. Peterson explained that he meant the passages to communicate a message condemning "gay behavior." The scriptural passages, he said, were "intended to be hurtful. And the reason [they were] intended to be hurtful is you cannot have correction unless people are faced with truth." Peterson hoped that his gay and lesbian co-workers would read the passages, repent, and be saved.
In these meetings, Peterson also asserted that Hewlett-Packard's workplace diversity campaign was an initiative to "target" heterosexual and fundamentalist Christian employees at Hewlett-Packard, in general, and him in particular. Ultimately, Peterson and the managers were unable to agree on how to resolve the conflict. Peterson proposed that he would remove the offending scriptural passages if Hewlett-Packard removed the "Gay" posters; if, however, Hewlett-Packard would not remove the posters, he would not remove the passages. When the managers rejected both options, Peterson responded: "I don't see any way that I can compromise what I am doing that would satisfy both [Hewlett- Packard] and my own conscience." He further remonstrated: "as long as [Hewlett- Packard] is condoning [homosexuality] I'm going to oppose it...."
Peterson was given time off with pay to reconsider his position. When he returned to work, he again posted the scriptural passages and refused to remove them. After further meetings with Hewlett-Packard managers, Peterson was terminated for insubordination.

Peterson asserted that he was subjected to disparate treatment because of his religion, which he clearly was not, and that H-P failed to reasonably accommodate his religious beliefs, which also is a nonstarter, as H-P, as the court holds, is under no obligation to make all of its employees feel totally comforable at the expense of corporate policies intended to increase productivity and profits (especially when this would involve the uncomfortable employee intentionally making other employees feel uncomfortable). On this much, the Ninth Circuit and I agree. (Edit: Indeed, I don't think Peterson needed to be acommodated at all. His religious beliefs were in no way being violated. No one asked him to endorse the morality of homosexual conduct, just to tolerate signs asking employees to be tolerant of gays as co-workers.)

However, the opinion, written by arch-liberal Judge Stephen Reinhardt, suggests that H-P's case is strengthened because trying to stop internal discrimination against gays is consistent with the “spirit” of federal and state antidiscrimination laws. Ahem. Neither federal law nor Idaho law bans employment discrimination against gays. There is no such “spirit” of the law, except in Reinhardt’s imagination.

Moreover, Reinhardt throws in gratuitous references to Grutter v. Bollinger(upholding affirmative action in state university admissions and noting the importance of a diverse workplace to corporate America) Romer v. Evans (invalidating a Colorado initiative banning local gay rights laws) to support the court’s conclusion that requiring H-P to take down its pro-diversity posters re gays would create “undue hardship” for H-P. You have to read the whole opinion closely to see it, but I read Reinhardt as subtly suggesting that a company may have a statutory obligation with regard to other minorities, supported by constitutional interests, to enforce pro-diversity policies at the expense of other concerns. By contrast, Reinhardt makes no reference at all to the Dale case (upholding the Boy Scouts’ First Amendment right to exclude gay scoutmasters), even though that opinion suggests that H-P may have a constitutional interest in controlling its own message regarding diversity issues (Dale is not quite on point because H-P isn’t a non-profit expressive association like the Scouts, but it’s certainly closer to the mark than is Grutter or Romer). In short, Reinhardt’s dicta suggests that H-P’s case is strengthened because of public, statutory, and constitutional interests in having companies proactively prevent a hostile environment for minorities, not because of the public, statutory, and constitutional interests in preserving corporate autonomy from antidiscrimination laws that attempt to regulate speech.

Oddly enough, Peterson failed to raise his strongest claim, that H-P's diversity campaign subjected him to a hostile working environment as a conservative Christian–surely the “be tolerant of gays” campaign created a subjectively hostile environment for him! I think this claim would have lost on the legal merits (and should lose under any rational, and/or First Amendment protective statutory scheme), but then again, a Christian manager won a large settlement from Dairy Mart for being required to sell Playboy and Penthouse magazine at the store she managed. I wonder how Reinhardt would have squared his obvious concern for having the law encourage proactive action against hostile environments for other minorities with such a claim by Peterson.
ADDENDUM (in response to readers' queries): Unlike in some cases, there is no hint in this case that H-P's diversity policy was undertaken to comply with federal antidiscrimination laws, and, indeed, the policy encompassed gays, who are NOT protected by such laws. It appears, though it is not certain, that H-P simply believes, rightly or wrongly, that its policy is good for business. If, however, H-P's policy had been responsive to concerns about legal liability, Peterson could have argued that enforcing the policy against his speech to protect against legal liability created a First Amendment issue. Of course, in the absence of direct or indirect state action, Peterson could not assert a First Amendment defense. On the other hand, H-P could at least plausibly raise a First Amendment defense to any interpretation of federal antidiscrimination rules that interfered with its diversity campaign.

 
[Eugene Volokh, 1/7/2004 09:46:26 AM]
Puzzling Bushism of the Day (Slate):

"So thank you for reminding me about the importance of being a good mom and a great volunteer as well."—St. Louis, Jan. 5, 2004

I don't get it -- what's supposedly wrong, otherwise Bushistic, or remotely noteworthy about this? I honestly don't understand. Is it that Bush, being a man, can't himself be a good mom? But he's not saying that it reminded him of the importance of his being a good mom -- he's saying that it reminded him of the importance of being a good mom, which presumably means (quite soundly, as a matter of grammar and semantics) the importance of moms being good. (Thanks to reader Gregory Taylor for the pointer.)

 
[Eugene Volokh, 1/7/2004 09:30:43 AM]
The Guardian (U.K.) on the environment and on Lomborg: The Daily Ablution has the scoop.

UPDATE: The Guardian's environmental editor responds, also at The Daily Ablution; apparently they will be having more about Lomborg shortly.

 
[Eugene Volokh, 1/7/2004 09:04:13 AM]
The trouble with indirect citation: Last Friday, I quoted columnist Clarence Page, who was paraphrasing an item from Abigail Thernstrom's & Stephan Thernstrom's No Excuses: Closing the Racial Gap in Learning:

In the survey by Laurence Steinberg, a Temple University social scientist, published in his 1996 book, "Beyond the Classroom," most of the black and Hispanic students surveyed said they could avoid trouble at home as long as their grades stayed above C-minus.

Most of the whites, by contrast, said their parents would give them a hard time if their children came home with anything less than a B-minus.

By contrast, most of the Asian students, whether immigrant or native-born, said that their parents would be upset if they brought home anything less than an A-minus.

I said that this was a fair summary of what the Thernstroms said, but I was working from memory -- and my memory was subtly mistaken, as was Page's quotation: The Steinberg study reports that, to quote the Thernstroms, "Black and Hispanic students got into trouble at home only when their grades fell below C-" -- not that they could avoid trouble as long as their grades stayed above C-, which literally means they got into trouble only when their grades fell below an unmodified C. Not a huge difference (especially since studies like this can't be very precise, and thus might not really be able to measure subtle differences between parents' likely reaction to a C- and parents' likely reaction to a C), but it is a difference, and a reminder to always check the original, since even well-intentioned paraphrases can often mangle things, and multiple paraphrases can yield a game of broken telephone.

     Incidentally, I did check the Steinberg book, and can say that the Thernstroms are properly reporting the Steinberg study.

 
[Tyler Cowen, 1/7/2004 08:58:53 AM]
Gibraltar: Anglo culture under siege? The Rock of Gibraltar was the most interesting locale of my recent honeymoon. Typically we think of Anglo-American culture as penetrating the rest of the world, but in this case the positions are reversed. 30,000 nervous Gibraltarians are surrounded by 40 million Spaniards. Morocco is on the other side. Gibraltar is currently a territory of Britain and the natives hold British passports. Spain has wanted the rock back for many years, mostly as a matter of national pride. The British obtained the possession in the early eighteenth century. Many British politicians simply wish that the issue would go away, but they are reluctant to hand over the territory to Spain. Franco cut off the rock from the mainland for twenty years, a kind of Berlin blockade. It only strengthened the will and identity of the Gibraltarians. Today the country is prosperous and free. Independence under the EU is discussed sometimes, but Spain and Britain would have to agree on terms.

I found the Gibraltarians (sounds like something from a bad science fiction novel, no?) to be very patriotic, very proud of their British connection, proud of martial virtue, and very suspicious of the Spaniards. It does not matter that many of them have darkish complexions and names like Pepe. Gibraltar also has a thriving Jewish community, mostly Orthodox, two hundred families I am told.

Here is a good article on the Gibraltar question and international law. The future of the rock affects the course of EU cooperation and military strategy, as well as how Taiwan is handled.

If you are ever in southern Spain, take some time and see Gibraltar. It has some of the most spectacular views I know. You also can see many strange remnants of British culture, such as an undue reliance on fish and chips shop, more per capita than you would ever see in Britain.

 
[David Post, 1/7/2004 08:47:40 AM]
Why Football Stinks, Part XXVI: Richard Sandomir, in today's New York Times, has an article that explains part of the reason football games are becoming completely unwatchable. The big LSU-Oklahoma matchup Sunday night lasted for 3 hours and 43 minutes, of which -- get this! -- a total of 16 minutes and 28 seconds was actual live football action. The NFL's worse; the Indianapolis-Denver playoff game had all of 12 minutes of live action. 12 minutes!!! It's pathetic, really. I feel sorriest for the folks up in the stands -- at least those of us at home can use our TIVOs to get at the good stuff (and/or switch stations to something decent, like a good, 90-minutes-of-action soccer game).

 
[David Bernstein, 1/7/2004 06:34:13 AM]
Israelis Have Given Up on the "Peace Process," For Now: From Ha'aretz: "a clear majority of the Jewish public (59 percent) prefer a swift, unilateral separation by Israel from the Palestinians, with the other alternative being to work for an agreement with the Palestinians even if the process takes a long time (today only 29 percent favor that, and 12 percent have no clear preference). " Can you blame them?

Tuesday, January 06, 2004

 
[Eugene Volokh, 1/6/2004 10:06:41 PM]
Concealed carry permits: In California, local law enforcement has nearly complete discretion in deciding whether to grant a permit to carry a concealed weapon. Here's one citizen's tale of his attempt to get a permit, or at least to get some information on who gets permits and who doesn't. It isn't pretty -- but it isn't surprising, either, when such important decisions are left to the unguided and unreviewed discretion of government officials.

 
[David Bernstein, 1/6/2004 05:59:30 PM]
Shattered Glass: Speaking of good movies, for the heck of it, I decided to find an online version of the made-up article that led to the downfall of New Republic writer Stephen Glass, the subject of Shattered Glass. My immediate reaction: how could such obviously nonsensical crap get past TNR's editors? The piece isn't as realistic as a mediocre Onion parody.

 
[David Bernstein, 1/6/2004 05:47:13 PM]
American Splendor: I've recommended American Splendor before, but it just won the National Society of Film Critics award for best movie of 2003, which gives me an excuse to recommend it again. Go see it.

 
[Eugene Volokh, 1/6/2004 05:41:09 PM]
Affirmative action bake sales made real: I bet you thought the campus "affirmative action bake sales," in which anti-race-preferences students sold cookies for a high price to white and Asian students, and a lower price to black and Hispanic students, were just a way to make a political point. It turns out that this is happening in earnest, with much more money at stake. Here's a Washington Post article (emphasis added):

Consider the recent federal court settlement of a class-action suit involving a large and prominent savings bank that is an active player in the mortgage market nationwide.

Under the $1.2 million settlement in U.S. District Court in Indianapolis, the lending institution -- Flagstar Bank of Troy, Mich. -- admitted "no wrongdoing, liability or improper conduct." But its internal loan pricing instructions distributed in writing to loan officers explicitly required them to charge different fees to different racial groups.

What is unusual, though, is that the instructions required loan officers to limit the fees they charged black and Hispanic home buyers while allowing higher fees to be charged to white borrowers. Here is what Flagstar's "Revenue Per Loan Procedure" policy required of loan officers:

• Minority home buyers could be charged no more than 3 percent in loan origination fees or "points," but white applicants could be charged up to 4 percent.

• Loan officers whose "revenue per loan average" from mortgages made to minority applicants exceeds their "non-minority [white] average" will be subject to disciplinary actions, including probation and termination.

• "Non-minority will be defined as any borrower who is determined on the loan application to be white, not of Hispanic origin." . . .

A Flagstar spokeswoman declined comment on the settlement, noting that the company has a policy against discussing litigation.

However, the lawyer for the plaintiffs, Amy Ficklin DeBrota of Indianapolis, said the bank's loan pricing policy -- initiated in May 2001 and discontinued at the end of January 2002 -- resulted in higher mortgage fees being paid by approximately 1,000 white mortgage borrowers. The affected borrowers will receive refunds and non-economic damage awards from the proceeds of the $1.2 million settlement. The lead plaintiff will receive $10,000. . . .

DeBrota believes that while racial preferences in mortgage lending may appear to favor one group over another, the reality is that "it is a lose-lose situation." Those charged lower fees can also be harmed, she argues, "because it creates a disincentive to lend to them." When loan officers stand to earn less from one category of borrowers than another, they will naturally tend to emphasize making loans to clients who will bring them the highest fees and income -- white borrowers, in this case.

The irony behind the Flagstar loan pricing policy? Though not confirmed by Flagstar, DeBrota said the dual-standard loan fee policy originally was put into place as a way to avoid any appearance of discrimination against black and Hispanic borrowers.

Auditors from the federal Office of Thrift Supervision had warned the bank about a possible pattern of higher fees to minority applicants, DeBrota said. The resulting policy instruction to loan officers -- the "Revenue Per Loan Procedure" -- had a subtitle: "Monitoring Fair Lending Practices."

The way to achieve fair lending for minorities, in other words, was to enforce a policy of higher-fee lending to non-minorities. . . .

Thanks to David Boaz for the pointer.

 
[David Bernstein, 1/6/2004 09:53:21 AM]
"Jesus Really Had it in for Me Today": The winning lottery ticket in the Mega Millions jackpot has been turned in, and not by the woman who claimed to have lost it. The apparent real winner told the media: ''One thing I want to make clear: Luck had nothing to do with it. It was truly a blessing, truly a blessing,'' she said.

I've noticed that Americans have a tendency to publicly attribute any success they have had--anything ranging from winning a Little League playoff game to winning the lottery--to God's intervention on their behalf. But I haven't noticed a countervailing tendency to blame God when things go wrong, an especially annoying defect in the sports world, where victories are freely attributed to Jesus's blessings. If God wanted the Marlins to win the World Series, doesn't that mean he wanted the Yankees to lose? Just once, I'd like to see the losing Super Bowl quarterback tell the media "Guess Jesus really had it in for me today."
UPDATE: Right Coast blogger Tom Smith writes that I've "walked into one of the great theological debates started by St. Augustine." And in an email beyond my theological depth, reader (and blogger) "Scipio" writes:

My personal suspicion on this is that it comes from the anti-scholastic religious revivalism America experienced in the 19th century. It reflects a wholly Augustinian appreciation of free will and human achievement that is part and parcel of modern Christianity, without any depth of understanding. This is what happens when you take On the Free Choice of the Will, make it a central doctrinal point of Christianity, and then don't explain to people what it really means.

Of course, Augustine's answer to the predestination vs. free will question is a kludge that is perfect from the standpoint of dogma: it applies only to Christians. If happiness comes from using your free will in accordance with God, and misery from defying God with your free will, then only Christians (or if you prefer, those who have the tools by which to properly intuit God's will) have a shot at regular happiness. Heathens are happy by accident, essentially.

Really, the athletes should be saying, "Clearly, my free will was not in accordance with God's providence" or "My will was in accordance with God's providence," rather than blindly ascribing victory to Jesus.

FURTHER UPDATE: Several readers wrote to tell me they think Scipio is wrong, but I'm not competent to judge, and I inadvertantly lost the most detailed critique in cyberspace.

 
[David Bernstein, 1/6/2004 07:04:11 AM]
William & Mary vs. George Mason: Hate to kick a rival when it's down (Ed: Yeah, right!), but if you are a pre-law student trying to decide between William & Mary and GMU law school, you should read this. For that matter, so should anyone considering attending W & M in another department, or who is considering an academic position there. Will the College's trustees toss President Sullivan out on his tuchas? Don't count on it.

 
[David Bernstein, 1/6/2004 06:45:28 AM]
You Can't Say That! News: The Washington Times carried a nice review last week, and the book's ideas received their first discussion in Abkhazia (a Russian-speaking breakaway region of Georgia).
UPDATE: Reader Jonathan Kulick informs me that most Abkhazians are ethnic Abkhazes and their first language is Abkhaz, though they speak Russian as well.

 
[David Bernstein, 1/6/2004 06:23:39 AM]
Simpsons Resource: I just found an incredible resource for fans of The Simpsons. Check out the episode guide for one of my favorite episodes, "Like Father, Like Clown" (in which Krusty is reunited with his estranged rabbi father). The detail is incredible (though a few of the Yiddish translations are questionable). Also incredible is the site's "freeze frame fun" feature, which points out the exacting detail in The Simpsons' animation which most viewers miss.

 
[David Bernstein, 1/6/2004 06:12:12 AM]
Is Google Overrated? Google will have its IPO shortly, and just in time arch-rival-for-advertising-dollars Yahoo leaks word that it plans to dump Google technology for its own search engine technology. I used to love Google; it was a vast improvement over other search engines when it appeared, and, for my purposes, it's still the best around. But it has severe limitations, and rather than improving, it's gotten worse over the years as commercial interests have learned to game its technology and assure that their sites come up from searches rather than more useful sites. Try doing a search for a particular hotel, for example, and you will be bombarded with travel agent sites instead of reviews of that hotel. Beyond that, here are two improvements I would like to see in Google or future competitors: (1) the ability to do Boolean searches; and (2) the ability to search for webpages created within any time frame that one selects--currently, Google's "advanced" search option allows only very limited time-related options, and then only for when a site was last "updated." Let's say I want to find out whether any web pages created (or at least first spidered) in the last two weeks mention my book Only One Place of Redress. Can't do it. The folks at Google perhaps should spend less time creating clever special-occasion graphics around the word "Google" on their home page and more time improving search capabilities. My own gut feeling is that Google is very vulnerable to an aggressive competitor. (And I wonder if Google has intentionally not improved its search engine much, the better to encourage visitors to click on the sponsored links that provide its revenue; a good short-term strategy to help the balance sheet before an IPO, but a long-term disaster when a rival exploits the weaknesses in Google-searching.)
UPDATE: As several readers pointed out, Google does have some Boolean capabilities, but what I am really after is the ability to search for close-word searches, like (David /2 Bernstein) or (David /s Bernstein), as one can on Westlaw or Lexis. And another reader points out that Friday's Washington Post contained a useful article on alternatives and enhancements to Google.
FURTHER UPDATE: I've since learned that doing the search David * Bernstein provides what appears to be a David /s Bernstein search. You can learn amazingly useful things from blogging.

Monday, January 05, 2004

 
[Eugene Volokh, 1/5/2004 10:19:37 PM]
History, text, and election-related speech by corporations and unions: The thrust of my NRO piece is that there was no lost Golden Age of free speech, where the First Amendment was read broadly or even literally. In general, the constitutional protections for free speech are broader now than they ever have been; they're certainly broader than they were for most of the nation's history, from the 1790s until the 1950s. And this is true of speech on political and religious matters -- such as speech that criticizes elected officials, government policy (even in wartime), judicial decisions, and religious opinions -- as well as of art, entertainment, commercial advertising, pornography, and other kinds of speech.

     Several correspondents asked me, though, to say more about the Supreme Court's upholding the ban on pre-election independent expenditures by corporations and unions. I think the Court got this wrong, as I said in the NRO piece itself, and also here and here, though I think that the Court was probably right on the other half of the case, which upheld the limits on various campaign contributions (see Part III of this article for my general defense of contribution limits). Might this be one area in which we have seen a retreat from historically accepted constitutional protections, even when in other areas we've seen advances?

     I don't think so; to explain why, let me chart out a rough history of corporate and union speech as I understand it.

     To begin with, I'm unaware of any real discussion of corporate or union speech rights at around the time of the Framing. Unions as we now know them (organizations of workers with significant government-created powers) didn't exist, and corporations were much rarer than they are today. There were municipal corporations -- government entities, such as cities, which had the corporate form -- and some private business corporations (such as banks), but they were created for limited purposes, and through special statutes passed by legislatures. The legislatures granted a particular corporation a charter, and the corporation could then only do those things that its charter authorized. I know of no early 1800s cases that discussed whether corporations had the free speech rights that people had. There just wasn't much discussion of the subject.

     In the 1800s, states began to pass general incorporation laws, which let people create corporations without any special legislative intervention. In the late 1800s, as the courts began to protect economic liberty under the rubric of "substantive due process," they also began to treat corporations as having substantial constitutional rights, too (see here for why I think that's generally the correct result). But corporations were not always treated the same as individuals; and in 1907, Congress specifically banned money contributions to federal election campaigns by corporations. In 1925, this was strengthened to apply to nonmonetary contributions. In the 1940s, this was extended to unions. And in 1947, it was extended to cover independent expenditures as well as contributions.

     In First National Bank of Boston v. Bellotti (1978), the Supreme Court cast this into some doubt when it held that, as a general matter, corporations do have free speech rights, and may express their views in ballot measure elections. (Arch-liberal Justices Brennan and Marshall, as well as arch-conservative Justice Rehnquist and Justice White, who was generally fairly conservative, dissented; Justice Rehnquist took the view that would have most restricted corporate speech.) But in Austin v. Michigan Chamber of Commerce (1990), the Court held that corporate speech may be limited in candidate elections; and last month's decision in McConnell v. FEC reaffirmed that.

     Now I say it again: I think that corporations and unions should be free to communicate their views (or, to be more precise, the views of their managers representing their stockholders or members), even if this means spending a good deal of money. (Contributions may be a different matter, as I've mentioned above.) But I don't think that history, tradition, or the original meaning of the First Amendment is on my side here. The original meaning is neutral; the recent history is against me; the 1800s history is harder to figure out. Again, there's no lost Golden Age of First Amendment protection for corporate speech that those darned liberals on the Supreme Court have retreated from. I'm hoping for broader free speech protection in the future -- not mourning for a mythical broad free speech protection of the past.

     Nor do I think that textual absolutism is the solution here. First, as I've mentioned before, the Court has never taken an absolutist view of the First Amendment; even if it should do this, we shouldn't assume that the liberal Justices' cavalier treatment of the text is the problem -- Justices of all political stripes have rejected First Amendment absolutism. (In fact, the one Justice who most called himself an absolutist, Justice Hugo Black, was generally seen as a radical liberal, though it turns out that even he really didn't believe in absolute free speech protection, despite what he said.)

     Second, even if we stick with the strict text, there remains the problem: When may the government say "if you want this government benefit (e.g., a government job, a subsidy, access to government property), you must agree to these conditions"? I know of no-one who is a First Amendment absolutist even as to that question -- who believes, for instance, that government employees have a First Amendment right to reveal confidential government data (e.g., people's tax returns), or to swear at customers or coworkers with impunity. There's always some concession that, no, these aren't really violations of the prohibition on abridging the freedom of speech, because the government can impose certain restrictions as a condition of giving people a government paycheck.

     The same issue comes up as to corporations and unions, which get significant government benefits. When may the government say "In exchange for the benefits of the corporate form, or for the special legal powers that unions have, we will insist that you not spend money on election-related speech"? (Most corporations are state-chartered, so that benefit is actually provided by the state government, not the federal government; but I don't think this matters, given the modern Congressional authority over interstate commerce, which would give Congress the power to preempt or modify state-granted charters.) That's a really tough question -- but the First Amendment text doesn't answer this question any more than it answers the question "When may the government say 'In exchange for a government paycheck, we will insist that you not reveal the tax return data that you'll be asked to process'?"

     Again, I'm not saying that restrictions on corporate or union independent expenditures on political campaigns should be upheld. I think they shouldn't be, and I have faulted the Court for upholding them. But the argument can't just be "The Justices are stripping away traditional First Amendment protections" or "The Justices are refusing to follow the clear constitutional text."

 
[Eugene Volokh, 1/5/2004 07:26:01 PM]
First Amendment history and incorporation: Several correspondents e-mailed me about my NRO piece to argue that I was wrong to talk about the First Amendment cases interchangeably with cases challenging state laws under state free speech guarantees. Let me briefly defend my decision to do that.

     To begin with, a bit of historical background: The Bill of Rights was pretty clearly intended to apply only to the federal government. The First Amendment, by its terms, covers only "Congress"; the other amendments were likewise intended to bind only the federal government; and that was the general (though not unanimous) understanding of the Amendment throughout the first half of the 19th century. The post-Civil War amendments were the first to bind the states, and the Fourteenth Amendment was eventually (first controversially, now less so) interpreted as applying most of the Bill of Rights, including the First Amendment, as against the states. Before that happened (roughly in the 1920s as to the Free Speech/Press Clause), free speech/press cases challenging state laws were brought under state constitutional provisions, while similar cases challenging federal laws were brought under the First Amendment.

     This brings up the argument that I've heard from some people: The First Amendment, they argue, was intended to be an absolute restraint on Congress, while state free speech/press guarantees were not intended to be absolute (and in fact their language is often less categorical than the language of the First Amendment). The Court, the argument continues, was wrong to incorporate the First Amendment (an incorporation that would make an absolutist view impossible, because state governments must have the power to restrict some speech, such as libel, threats, and so on). The right solution is to leave the First Amendment as a categorical restraint on federal power, and leave state speech restrictions to state courts applying the less absolute state constitutional restrictions. And this means that there was a Golden Age of absolute, textually clear freedom of speech and of the press (the point against which I was arguing) -- though only against Congressional suppression.

     But I don't think this is right. Most importantly, from the late 1700s on, the First Amendment was not seen by the courts, or as best I can tell by any broad consensus in the other branches, as an absolute protection. There were very few First Amendment cases in the federal courts, largely because the federal government enacted few laws generally, whether speech restrictions or otherwise; it's thus hard to speak of a specifically First Amendment tradition, as opposed to a free speech tradition more broadly. But the tradition that did exist was certainly not an absolutist or even very broad tradition.

     In the late 1790s, lower federal courts (including in opinions by the Supreme Court Justices riding circuit) upheld the Sedition Act -- a restriction on political speech -- against First Amendment challenges. From the 1870s on, the Supreme Court upheld Congress's essentially unlimited power to exclude various kinds of speech from the mails. In the early 1880s, the Supreme Court upheld Congress's power to prohibit (on pain of criminal punishment) political contributions by federal employees. In the late 1910s, of course, the Supreme Court upheld restrictions on antiwar speech. Only in the middle of the 20th century did the Court begin to meaningfully constrain federal power to restrict speech -- incidentally at the same time that it was applying similar constraints to the states under the Fourteenth Amendment.

     What's more, while there was some talk in the late 1700s and very early 1800s -- including by Madison and Jefferson -- arguing that the First Amendment was an absolute constraint, and was quite different from the state provisions, that was never a consensus view. By the middle of the 19th century, leading constitutional commentators (chiefly U.S. Supreme Court Justice Joseph Story (1833) and Michigan Supreme Court Justice Thomas M. Cooley (1868)) were treating the First Amendment as being (1) not absolute, and (2) part of the same constitutional tradition as the state free speech/press guarantees.

     So my point remains: There never was a golden age of First Amendment textualism or absolutism in American history, even if you limit the First Amendment to Congressional power. Courts never took this view; some important Framers did take this view in the late 1700s, and some commentators shortly afterwards, but it was never the accepted legal position. Such an absolute view would almost certainly not have been tenable even if it had been adopted, since it would have foreclosed Congress from restricting threats, libel, false advertising, etc. in the District of Columbia or in the Territories (after all, the Bill of Rights restrains all the Congressional powers, including the District Clause and the Territories Clause powers, alongside the war power, the Commerce Clause power, and the others). But it was never the dominant legal view in the U.S. in any event. Free speech is in practice more protected today against Congress than it has been for most of the nation's history.

 
[David Bernstein, 1/5/2004 05:03:05 PM]
Liberal Law Professors: Last night I attended a talk by Northwestern Law School professor John McGinnis detailing, based on political contribution data, the overwhelming Democrat-leaning orientation of law professors. The talk was cosponsored by the Federalist Society and the National Association of Scholars, and had an attendance of about fifty, which included a substantial percentage of the law professors who are active in the Federalist Society and otherwise consider themselves active conservatives or libertarians, and probably included a majority of such folks who were attending the main AALS conference two blocks away, where thousands of overwhelmingly liberal and leftist law professors gathered. I therefore chuckled when I read this post by Kevin Drum implying that law professors lean conservative. Perhaps Kevin has been deceived by the wackily disproportionate percentage of conservative and libertarian law professor bloggers?

 
[Eugene Volokh, 1/5/2004 02:51:13 PM]
Original meaning: My National Review Online piece this morning deals with the argument -- made by some conservatives and libertarians -- that we're somehow losing traditionally understood First Amendment protections. One can certainly condemn particular government actions as unconstitutional, I argue; but if anything, free speech protections are on balance as strong now than they have ever been, and much stronger than they have been until the 1960s. The notion that the First Amendment was once super-strong and is now weak is a myth: For much of American history, the First Amendment was considerably narrower, even as to core political, religious, or social commentary, than it now is.

     I've gotten a bunch of responses to this, which I wanted to react to, time permitting. Let me begin with one: Some people argue that whatever might have been done by the government in the late 1700s and 1800s, the Framers of the First Amendment understood the right as being broadly speech-protective, as the Congressional debates, the debates in state ratifying conventions or state legislatures that were considering the First Amendment, and The Federalist make clear. So even if politicians strayed early from this broad understanding of free speech, the Constitution's original meaning does embody such an understanding.

     Unfortunately, there's very little historical evidence on this score. The Federalist says little about the freedom of speech or of the press (which makes sense, since it was an argument for ratifying the Constitution, not the Bill of Rights). There are no relevant records that I know of from the state ratifying conventions or state legislators. The Congressional debates on the First Amendment are very sparse, and say very little that's conclusive about what the Free Speech/Press Clause was specifically going to mean. The very first controversy in which the Framing generation discussed the issue -- the controversy over the Sedition Act of 1798 -- showed deep divisions about the most fundamental principles here. There simply is no evidence of a consensus at the time about the meaning of the provisions (except perhaps that they prohibited administrative censorship and discretionary licensing schemes of the sort referred to as "prior restraints").

     So there is no lost Golden Age of the First Amendment from which we have strayed -- either in post-Framing history, or at the time of the Framing. One can still support a broad understanding of the Free Speech/Press Clause, and criticize the Court for decisions that one sees as mistaken; I have often done this myself. But one shouldn't argue that somehow there was a broad understanding in the 1700s or 1800s that we've retreated from. There's simply no evidence of that.

UPDATE: Forgot to include this link to a good resource on Framing-era documents related to the Free Speech/Press Clause.

 
[Eugene Volokh, 1/5/2004 02:39:17 PM]
More French discrimination against religion: From Reuters:

A suburban Paris mayor who banned all religious symbols from civil weddings as part of France's campaign against the Islamic veil [has] brushed off criticism that his hard line will alienate Muslims. . . .

[Martin] banned the veil at civil weddings in November.

Patrick Devedjian, a minister in Prime Minister Jean-Pierre Raffarin's cabinet, warned Martin last week of the risk of alienating citizens.

"A civil marriage service is often the only ceremony marking the wedding," he said. "Participants...find it natural on such an occasion to act according to their traditions."

Couples marrying in France must be wed at a civil ceremony at their local city hall and may also have a religious wedding.

     Here the government is intentionally discriminating against a religious practice precisely because it's religious. Muslims aren't asking for favoritism, or exemption from generally applicable laws that happen to be inconsistent with their religious views. They're just asking not to be singled out for religious discrimination -- and they're absolutely right.

     Thanks to reader Laurence Rothenberg for the pointer.

 
[David Bernstein, 1/5/2004 12:40:09 PM]
AALS: I had dinner and drinks last night in Atlanta, site of the annual AALS law professors' conference (and the concurrent one-day Federalist Society faculty conference) with co-Conspirator Jacob Levy, whom I'd only met once before, Right Coast blogger Michael Rappaport, Glenn Reynolds the Instapundit, co-Conspirator Randy Barnett, The Corner contributor Jonathan Adler, and some like-minded non-bloggers. Many serious and not-so-serious issues were discussed, and a good time was had by all.

Mike pointed out to me that the Blogosphere might be the first important piece of American cultural/political turf where libertarian-oriented thinkers truly hold their own, though arguably that's true of the think-tank world as well.

 
[David Bernstein, 1/5/2004 12:31:19 PM]
Strategy for the Libertarian Party: 2004, of course, is a Senate election year. As in past election years, there will likely be a few very close Senate races in which the vote totals of the Libertarian candidate will threaten to be greater than the difference between the Republican and Democratic candidates. Republican strategists will call on the Libertarians to drop out and endorse the Republican. Most of the Libertarian candidates will refuse. One or more elections will be thrown to the Democrats, and mutual recriminations between Republicans and Libertarians will commence, with the Republicans accusing the Libertarians of aiding the more statist Democrats, and the Libertarians responding that Republicans have not earned libertarian support.

This scenario seems to occur every two years. I have a solution. What if the Republicans actually offered something tangible for Libertarian support, and the Libertarians accepted it? And what if that something tangible was influence over a discrete number of appointments to the federal appellate bench? Libertarians can't expect the Republicans to nominate hard-core Libertarian activists, but they can, in return for support in close races, ask the Republicans to nominate libertarian-minded Republicans: Alex Kozinski and Buzz Arnold rather than John Noonan and Robert Bork; Jim Ely (of Vanderbilt) rather than Lino Graglia (of Texas); Janice Brown rather than Charles Pickering.

I see a win-win situation here. The Republicans ensure that Libertarian votes don't cost them Senate elections; Libertarians actually accomplish something for liberty by boosting the prospects of libertarian-minded Republicans, something they don't achieve by either throwing close races to Democrats or dropping out of races without compensation. And since the parties are repeat players, there will be a strong incentive for the Republicans not to cheat on whatever deal is reached (secretly, one would assume).
UPDATE: Matt Yglesias is skeptical that the Libertarian poobahs will think this is in their self-interest, but Yglesias commenter Bob McGrew is on my page.

 
[Tyler Cowen, 1/5/2004 10:18:25 AM]
Purely speculative thoughts about terrorism: To me the big puzzle remains why Al Qaeda has not pulled off another successful attack on American soil. Look at the two snipers, they almost brought the Washington area to a standstill, and neither was close to an organizational genius. Over the last two weeks we have instead seen terrorist "chatter" leading to foiled plans.

One hypothesis is "terrorism as theater." In this view the terrorist group consumes the very sense of acting like terrorists. They enjoy the planning, the feeling of being in a working group, the secret code words, and so on. They don't admit it, but perhaps they enjoy the process more than they like killing people or achieving some political end. If this is the case, they will go ahead with their planning even if Uncle Sam is listening in, and they won't move to less centralized, more anonymous forms of communication. They get to do what they love, and that means sticking around as an organized terrorist group or cell. Furthermore since they don't actually end up having to attack and die, they will outlast those terrorists determined to be martyrs.

A second hypothesis is "terrorists as fundraisers." Perhaps the terrorists in the field are manipulating their donors. In this view they cynically realize that they don't want to attack at all. But they don't want to have to get a real job either. They want to receive funding support, false passports, travel, and the other "benefits" of the terrorist lifestyle. They don't want to be caught, but neither do they wish to succeed so much that they must attack and sacrifice their lives. They cannot do nothing, or they will have their funding cut off. So they continually half-plan a series of faux attacks, and then move on as they approach a high risk of detection.

I don't have any hard evidence for either of these hypotheses. But at least they try to explain why there have been no further attacks. After all, haven't you, like I, wondered why we have seen no "lone wolf" Al Qaeda attacks on American soil?

 
[Eugene Volokh, 1/5/2004 09:14:55 AM]
Mark Steyn on the limitations of international tribunals: Seems right to me.

 
[Eugene Volokh, 1/5/2004 07:40:57 AM]
Conservative myths about the First Amendment: I criticize them in this National Review Online column. Here's the introduction:

The liberals on the Supreme Court, and in universities, have been undermining the Framers' First Amendment handiwork. The Court's decision upholding campaign-finance restrictions show that Americans are losing the liberties that they've long enjoyed; likewise with the speech codes that some public universities have been instituting. And this loss of liberty stems from liberals' disdain for the text of the Constitution, and liberal judges' willingness to make law, instead of simply applying it. Soon we will lose the freedom of speech that Americans have long taken for granted.

That's the story I've been hearing from many of my conservative and libertarian correspondents. And it's just plain false. . . .

 
[Tyler Cowen, 1/5/2004 07:08:00 AM]
Query about the music market: I am doing some research on the music market, and was wondering if any VC readers knew of any data on the total number of music releases worldwide. The RIAA, of course, puts out such data for the United States. Comparative data over time would be especially useful, as would be any other quantitative measures of whether global musical diversity has been rising or falling. My intuition and personal experience very strongly suggest that many different kinds of music are more available than ever before, but it is hard to find any exact numbers to back up this claim.

By the way, my honeymoon was most enjoyable, we visited southern Spain: Grenada, Cordoba, and Seville. Gibraltar was a special treat, I hope to write more about that place, and its unique problems, soon.

 
[Juan Non-Volokh, 1/5/2004 06:01:08 AM]
Bush to Reconsider Clinton Under-regulation of Sludge: It is unlikely you saw this headline, but you could have. This past week, however, the Bush Administration announced that it would consider imposing additional regulations on the use of sewage sludge as fertilizer based upon a National Research Council study that found the scientific basis for the EPA’s 1993 regulations lacking. While sludge has been used as fertilizer for years, under the Clinton Administration the EPA vigorously promoted the practice, as the New York Times reports. The EPA rejected, at least for the time being, enjoining the use of sludge as fertilizer, but additional regulations governing the practice are likely as a result of the announcement -- regulations tighter than those adopted by the Clinton Administration.

The claim here is not that the Bush Administration is, as a whole, a more aggressive at promoting environmental protection than the Clinton Administration, let alone a more aggressive regulator. Rather the point is that this episode, like many others, illustrates that the common caricature of the Bush Administration as “anti-environmental” is overly simplistic and ultimately unfounded. Nonetheless, I assume some will still claim Bush is the “worst environmental president” since McKinley.

Sunday, January 04, 2004

 
[Eugene Volokh, 1/4/2004 08:55:52 AM]
Ashcroft recusal and press subpoenas: Eric Rasmusen has an interesting theory:

I just realized there is a third reason beyond the two of No Prosecution and Unexpected Criminals for Attorney-General Ashcroft's removing himself from the Plame Affair prosecution: He doesn't want to put reporters in jail. They hate him already for his politics and religiosity, and if he vigorously pursues an investigation in which reporters are the main witnesses, he will have to make reporters talk, which they don't want to do. The media will scream "Reporters jailed for contempt--- Nazi Tactics!" if he pursues the investigation, and "Officials allowed to leak without punishment--Nazi Tactics!" if he does not. . . .

I'm not sure just how likely this is, but I thought I'd pass it along.