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

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

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

2. Professional-Client Speech

a. The Issue

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

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

1. Many professionals may not advise clients without a government license — something that would be a prior restraint if applied to speech by people other than professionals.

2. The government may impose liability on professionals for negligent advice, not just for negligently false statements of fact, but also for negligent predictions, which would otherwise be generally seen as constitutionally protected opinions.

3. The government may bar professionals from revealing client confidences. This isn't just an implied contract term (which might be defensible under Cohen v. Cowles Media Co.), because under some such rules the obligation can't be disclaimed even if the professional expressly states to the client that he doesn't promise confidentiality.

4. Some professionals, including lawyers and psychotherapists, are barred from having sexual relations with their clients — and it is the professionals' communicating with the clients that triggers the prohibition. Laws that constrain the sexual choices of authors of advice books, or of movie stars who project an image of trustworthiness, would violate the First Amendment (as well as perhaps the sexual autonomy right recognized by Lawrence v. Texas); such laws involve a burden placed on people because of their speech. Yet similar burdens are imposed on some professionals because of their speech.

5. A requirement that doctors give patients certain state-provided information before getting the patient's consent to an abortion was upheld in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (plurality), with just the following discussion:

   All that is left of petitioners' argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician's First Amendment rights not to speak are implicated, see Wooley v. Maynard, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State. We see no constitutional infirmity in the requirement thatthe physician provide the information mandated by the State here.

Such restrictions and compulsions may in fact be properly upheld: There may be something in a professional-client relationship that would justify such extra regulation. But the Court has never explained (1) exactly what speech restrictions and speech compulsions would be allowed in such a situation, or (2) exactly when this reduced protection would be triggered. In Lowe v. SEC, 472 U.S. 181 (1985), a three-Justice concurrence (written by Justice White and joined by Chief Justice Burger and Justice Rehnquist) suggested this rule (paragraph break added):

One who takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client's individual needs and circumstances is properly viewed as engaging in the practice of a profession. Just as offer and acceptance are communications incidental to the regulable transaction called a contract, the professional's speech is incidental to the conduct of the profession. If the government enacts generally applicable licensing provisions limiting the class of persons who may practice the profession, it cannot be said to have enacted a limitation on freedom of speech or the press subject to First Amendment scrutiny.

Where the personal nexus between professional and client does not exist, and a speaker does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech; it becomes regulation of speaking or publishing as such, subject to the First Amendment's command that "Congress shall make no law . . . abridging the freedom of speech, or of the press."

The majority, however, didn't find it necessary to speak to this question. See also Thomas v. Collins, 323 U.S. 516 (1945) (holding that union organizing couldn't be restricted on the grounds that such a restriction was just a regulation of the "profession" of union organizer).

b. Problem: Counseling That Advocates Race-Based Decisions

A state has long required all marriage and family counselors — defined as "any person who offers advice related to marriage and family matters in exchange for money" — to be licensed, and to follow rules prescribed by the state's Marriage and Family Counseling Licensing Board.

The Board learns that some marriage and family counselors are advising clients not to enter into interracial marriages or interracial adoptions. Some are even advising clients who are in interracial marriages that the interracial nature of the marriage may be a source of the problem, and are suggesting in some instances that divorce may therefore be the only solution.

The Board believes that such advice is offensive, and harmful to the patients. It therefore enacts the following rule: "Any marriage and family counselor who uses the patients' race, or the race of the patients' spouse, children, or prospective adoptive children or stepchildren, as part of the basis for the counselor's recommendation, shall have his or her license suspended for six months."

Based on this rule, Mary Moe, a counselor who had engaged in such advice, has her license suspended. Her former patients, Laura Loh and Richard Roe, who divorced each other partly on Moe's advice (Loh is East Asian and Roe is white), but who have since reconciled, sue Moe for emotional distress caused by her advice, which they claim constituted malpractice. The judge awards them $100,000 in a bench trial. One of the judge's findings of fact is that Moe's advice was unreasonable by the standards of the profession, and the sole evidence that the judge relies on is the Board's rule.

What should be the proper analysis be under the First Amendment?

News.com reports:

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

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

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

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

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

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

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

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

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

[PLEASE NOTE IMPORTANT CORRECTION BELOW.]

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

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

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

Hence the charge (in the title of his post) of "the ACLU's stunning hypocrisy."

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

What's more, to my knowledge in most instances decisions are made by local ACLU chapters. Even if somehow the Pennsylvania ACLU behaved differently from the Utah ACLU — and I stress again that we have no reason to think so, since we don't know if the Pennsylvania ACLU was asked to stand up for Grove — that might simply be evidence of different views in the organization rather than "hypocrisy" on the part of the organization as a whole.

[MAJOR ERROR IN THIS ORIGINAL PARAGRAPH: Finally, when the national ACLU has had to speak up about the First Amendment and opposition to homosexuality, it has to my knowledge come out for the First Amendment. The ACLU filed an amicus brief supporting the Boy Scouts in Boy Scouts v. Dale, stressing their right to exclude gay scoutmasters. And the ACLU filed an amicus brief in Hurley v. Irish-American Gay, Lesbian & Bisexual Group — the case in which the organizers of the St. Patrick's Day Parade wanted to exclude some pro-homosexuality floats — supporting the right of nongovernmental organizations to exclude such speech. (The Hurley brief was on behalf of neither party, because the ACLU argued, not implausibly, that the parade organizers might in fact be state actors because the city had given them preferred treatment. If this were so, and the ACLU asked that the case be remanded for findings on whether this indeed was so, then the gay rights group would itself have had a legitimate First Amendment claim to equal access to a state-actor-organized parade. But in any event, the ACLU expressed its full support for the rights of non-state-actors to speak, even when their speech involved the exclusion of pro-gay messages.)]

[CORRECTION:] My quick research last night completely led me astray as to the Boy Scouts v. Dale brief; the ACLU, it turns out, was indeed on the wrong side of the question, and in favor of applying the antidiscrimination law to the Boy Scouts — their theory was that "State regulation of who takes part in an act of expression, like a parade or a demonstration, interferes directly with a speaker's message. By contrast, insisting that an association not discriminate in its membership ordinarily does not interfere with the organization's message because there is little risk that an association open to the public will be thought to be making a statement through the composition of its membership."

My apologies for screwing up on that (I must have picked up the wrong brief from the WESTLAW listing), and appreciate the messages from readers Benjamin George and Gil Milbauer who set me straight on this, and allowed me to promptly correct this.

Nonetheless, my basic point still remains: Even if the ACLU is in error on this score, neither the Harrisburg-Salt Lake City comparison nor the ACLU's restricted view of the freedom of expressive association supports the charge of "hypocrisy" on the ACLU's part. [END CORRECTION]

I have plenty of differences with the ACLU. I think they're not as solid supporters of free speech as they used to be, and this is especially so as to some local chapters. And perhaps there is some other evidence somewhere out there that the ACLU fails to adequately support the right to engage in anti-gay speech. But Cramer has not, as I see it, adduced any reliable evidence in support of his pretty strident charges.

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

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

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

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

At the same time, it would be too bad if the correlation were zero: I would think that people who paid attention in class, who understood the big picture, and who are just plain smart would do better on all parts of the test. If there was no correlation, I might begin to fear what some students already claim to suspect — that law school exams (or at least my exam) are largely random.

So the results that I've gotten seem pretty encouraging to me, or at least not disheartening.

Wonkette links to us, and says our legal analysis "make[s anal sex] less exciting." I guess that depends on what turns you on -- First Amendment doctrine has always made me hot and sweaty . . . .

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

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

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

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

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

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

Actually, it seems to me that the proposal itself was more insulting to African-Americans. Most African-Americans, I suspect, aren't such fragile flowers, who are shocked and offended when they hear a historical term that was also used in the context of slavery.

A Jan. 21, 2000 story says that "This is not the first time state language has offended [Rep. Cicilline]. Two years ago, he won approval of a bill that eliminated the title 'Master' when referring to court magistrates. He said the word evoked images of the 'master' of a plantation and was offensive to minorities."

My suggestions for continuing this agenda:

1. Change the term "Majority Whip" in the House of Representatives, and of course the "Master of Arts" degree. (See here for the story of L.A. County's recent attempt to insist that computer vendors stop using the standard hardware terms "master" and "slave".)

2. Rename the term "slave" itself, since its historical origins come from "from the widespread enslavement of captured Slavs in the early Middle Ages".

3. Rename the state "Alabama," because many descendants of slaves — especially of slaves who lived in Alabama — think of slavery and segregation when they hear about it.

From a Washington Post column:

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

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

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

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

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

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

But Mary, a single sheet of paper?

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

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

"No, that's fine."

What's the difference here?

"A bill is something one could assume had been mailed. It's not likely to be something you would have crumpled in your pocket, like a receipt." . . .

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

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

When marriage is outlawed, only outlaws will have in-laws.

Clayton Cramer quotes this Christian Times story:

Three pastors conducting street preaching during a PrideFest event last year earned mixed court verdicts April for trespass and disorderly conduct.

Jim Grove, pastor of Heritage Baptist Church in Loganville, Pa. was acquitted of defiant trespass and disorderly conduct charges. However, Steven Garisto, an inner-city minister in Harrisburg, and Michael Marcavage, a preacher with the Philadelphia-based Repent America were found innocent of defiant trespass, but guilty of disorderly conduct, the group reported this week. These verdicts follow the acquittal of Jim Lymon, an evangelist from New York, during the Jan. 8 trial.

The ministers were arrested July 26 while evangelizing outside of a public park where the annual gay, lesbian, bisexual and transgender PrideFest event was taking place. The daylong event featured various activities, including the sale of pornographic materials, public nudity, men dressed like women and obscene language over a public address system.

The ministers were not permitted inside the public park, so they remained on public property outside the main entrance. They were arrested while they were preaching in this public area.

The arresting officer, Stephanie Barrelet, who was filmed on video hugging other lesbian women entering the pride event, jailed Grove, Garisto, and Marcavage for several hours until the PrideFest event was over. Lymon, the first to be arrested, was cited and released.

Other news accounts (Hanover Evening Sun, Jan. 10, 2004; see also York Dispatch, Apr. 5, 2004) seem consistent with this, but add more details:

Harrisburg police say the pastors refused to obey their orders to stay more than 50 feet from the park. By lingering in the 50-foot zone and handing out literature, the preachers allegedly blocked traffic on an adjacent street and harassed some of the more than 5,000 people who attended the event.

Grove denies blocking traffic or pedestrians and testified police never warned him about lingering in the street.

It's hard to tell what exactly the protesters were doing, so perhaps some of their conduct was indeed punishable; the stories unfortunately don't give many details.

But I think that even given the abortion clinic buffer zone cases, there's no justification for imposing such a 100-foot-diameter buffer zone around a political event, with little evidence of past court orders that had been flouted (as in Madsen) or of a serious threat of more than just possible fisticuffs (as was the case in the Second Circuit case a year or two ago that involved an intended protest outside the United Nations).

Some of the protesters' speech was repulsive ("Besides distributing literature, protestors carried signs such as 'GotAIDS yet?'"), and I'm sure there was other stuff in that same vein. But the speech was nonetheless constitutionally protected.

Here's Slate's latest Bushism of the Day:

I'm honored to shake the hand of a brave Iraqi citizen who had his hand cut off by Saddam Hussein.

Here's the full context — note that Slate persists in refusing to even link to the full statements:

I'm honored to shake the hand of a brave Iraqi citizen who had his hand cut off by Saddam Hussein. I'm with six other Iraqi citizens, as well, who suffered the same fate. They are examples of the brutality of the tyrant.

I am also here with Marvin Zindler, of Houston, Texas. I appreciate Joe Agris, the doctor who helped put these hands on these men; Don North, the documentary producer who made a film of this brutality, which brought the plight of these gentlemen to the attention of Marvin and his foundation. These men had hands restored because of the generosity and love of an American citizen. And I am so proud to welcome them to the Oval Office. . . .

That's right: Bush was holding a ceremony involving several Iraqi men who had their severed hands replaced with high-tech prosthetics. In the course of doing so, he said he was honored to shake hands with one of the men — presumably (I haven't seen the video, but I have no reason to doubt it) while or right after in fact shaking hands with him. Quite possibly the reference to shaking hands was a deliberate way to stress the attempt to make these people as whole as possible. Even if it wasn't deliberate, it was perfectly accurate.

So Bush's statement is an error / humorous gaffe / telling of his supposed inarticulateness because . . .?

UPDATE: A reader writes:

Actually, . . . it was kind of cool. The news clip I saw from the White House showed the president taking hold of the one Iraqi man's new prosthetic hand and shaking it. Not just a statement, then, but a real action with meaning. From what limited contact I have had with folks who either have a prosthetic limb or use a wheelchair, it is the recognition of the aid (as opposed to the studied avoidance of contact or acknowledgement of the aid) that means the most. I suppose it is because the new limb (or other aid) is now as much a part of the person as those limbs they were born with, so other people's acknowledgement that the prosthetic is there, is recognition of the whole person.

FURTHER UPDATE: Thanks to reader Stuart Sechrist, here's a photo of the handshake, on the USA Today site:

Lawprof Ann Althouse writes (thanks to InstaPundit for the pointer):

The Boston Globe reports John Kerry's response to criticism about his proposal to avoid accepting the nomination at the Democratic convention:

The senator chuckled at the criticism.

"Once again, the Republicans don't know history, and they don't know facts," he said. "The truth is that it used to be that the convention, after nomination, traveled to the home or the state of the nominee to inform them they've been nominated. Woodrow Wilson was at his house in Princeton, N.J.; Harry Truman was in Independence," Mo., he said. "They're trying to make an issue out of something that they're surprised by, because . . . they're very upset someone might have a way of neutralizing their advantage."

Yes, but wouldn't it be funny if Kerry himself got history wrong? It just so happens he did.

Althouse points out that Truman did in fact accept the nomination at the convention; see the acceptance speech (plus more data in Althouse's post and the comments).

One moral: Everyone makes mistakes. But the mistakes look more embarrassing when they occur in snide comments that accuse the other side of ignorance.

A very good piece in NRO.

I am pleased to report that my brother Sasha -- hereinafter "Doc" -- has just successfully defended his economics Ph.D. dissertation at Harvard.

He still has some procedural matters to take care of, but the substance is done, done, done, and in precisely the alloted time (it was a six-year joint J.D./Ph.D. program). To our knowledge he's the first Ph.D. in the Volokh family. Hip, hip, hooray!

In other Volokh family news, Benjamin has now gotten his B.A. in sitting up (with a double major in spitting up), and is working on his Master's in crawling.

and a little bit of perspective: According to L.A. Times,

The American Civil Liberties Union wants to take religion out of the Los Angeles County seal. . . .

At issue is the seal designed by the late Supervisor Kenneth Hahn that contains a tiny cross symbolic of the Catholic missions that are so much a part of the county's history.

In a letter to the supervisors, ACLU Executive Director Ramona Ripston says the cross is unconstitutional and has given them two weeks to act. . . .

In her letter to the supervisors, Ripston said that a 1957 letter to the California secretary of state describing the new seal clearly stated that the cross represented religion. But [Supervisor Mike] Antonovich said the cross was all about history.

"The cross on our county seal reflects these historical facts," he said. "It does not mean that we are all Roman Catholic or that everyone who resides in our county is a Christian -— it only reflects our historical roots."

Here's the offending seal (thanks to How Appealing for the pointer):

The most prominent item is The Goddess Pomona - the goddess of gardens and fruit trees (just to make it clear, there's no suggestion that the seal somehow endorses her). "The cross represents the influence of the church and the missions of California," the city's Web page says.

And whatever might have been said in 1957, it seems to me that in context the reasonable, well-informed observer will indeed see the cross as a historical referent, rather than as an endorsement of religion (which is the Establishment Clause test). Part of the context is just what's on the seal itself. Look, the cross is right below the oil derricks (though people have accused Angelenos of worshipping the car) and smaller than the pagan goddess.

But the rest of the context is that this is Los Angeles. Los Angeles. Original name (translated from Spanish): The Town of Our Lady the Queen of Angels. (That's the deep link between L.A. and Notre Dame.) The state's capital: Sacramento.

Religion is a fundamental part of California history, as it is part of the history of the country as a whole. There should be no constitutional obligation to extirpate all historical religious references from American public life. Even if the Court is right that government endorsement of religion is unconstitutional, courts must distinguish references that will be seen as endorsing religions from references that simply recognize religion's role in American history — and the seal seems to me to be well on the side of history, not endorsement.

Or what will be next? Rename Santa Fe? Providence, Rhode Island? Corpus Christi? The Sangre de Cristo Mountains?

The universe is apparently "at least 156 billion light-years wide", even though it's only about 13.7 billion years old. (Thanks to Dan Gifford for the pointer.)

Yes, I know those zany scientists have their own zany explanations. But between this and strings and umpteen dimensions and Schroedinger and his poor cat, I'm finding the elephants and the turtle to be a more and more appealing alternative . . . .

The Star Press reports that:

The Indiana Civil Liberties Union is challenging the legality of Mayor Dan Canan's ban on Confederate battle flags and other flags at the city's campgrounds at Prairie Creek Reservoir.

I think the ban is indeed unconstitutional, for reasons I discussed here a few month ago, but which I thought I'd also repeat here:

An Indiana reader pointed me to this story, so I thought I'd check into it some more. After talking with the Mayor of Muncie (who was very pleasant and thoughtful, though as you'll see below I differ with him on this), here's what I've figured out.

Muncie, Indiana runs the Prairie Creek Campground (which is on property leased by the city from a utility, but for constitutional purposes it's tantamount to city-owned property). Some people park their trailers there for up to four months during the summer, though the plan for next year is to limit usage to two weeks per year.

1. The First Amendment issue: Some campers have complained that other campers have been putting up Confederate flags. Others have complained about Budweiser and Miller Lite flags as well. (I didn't even know that beer companies had flags, but I guess I'm behind the times.)

The city has therefore set up a new rule: No display of flags at the campground except for U.S. flags and POW/MIA flags. The Mayor's explanation was that, especially in wartime, such flags are appropriate, and other flags are not. "Our policy, I think, is appropriate for the campground and the atmosphere that we're trying to maintain for the campground." The Mayor's view seems to focus on the need to maintain "a good family environment" for campers' benefit.

This policy, however, turns out to be almost certainly a violation of the First Amendment, because it discriminates among flags based on viewpoint. It's possible that the campground is a traditional public forum (as parks generally are), but even if it's treated as a "nonpublic forum," viewpoint discrimination in speech by private persons would be unconstitutional. And permission of the U.S. flag and not other flags is indeed viewpoint discrimination: It allows the expression of a patriotic, nationalist, and inclusive-of-all-Americans viewpoint, but not a rebellious, sectionalist, or (in the view of some) racially exclusionary viewpoint — or for that matter of other viewpoints represented by other flags.

In fact, just last year the federal Court of Appeals for the Ninth Circuit held that such an exclusion of all flags but the U.S. flag was indeed unconstitutional viewpoint-discrimination. (The Ninth Circuit's decision isn't binding in Indiana, but it should be persuasive.) That case is actually harder than this one, since there the flags might have looked like they were posted by the state. Here, the flags will clearly be seen as the messages of the campers themselves, so the government really is discriminating among private people's speech based on viewpoint. Under the U.S. Supreme Court's precedents, this is unconstitutional.

2. The right to keep and bear arms issue: The UCLA Law Library also tracked down for me a copy of the written rules and regulations, and in them I saw this item: "No firearms or bow and arrows are allowed."

The Indiana Constitution, however, states that "The people shall have a right to bear arms, for the defense of themselves and the State." The Indiana Supreme Court has made clear that this includes the right to keep and bear arms for self-defense, Kellogg v. City of Gary, 562 N.E.2d 685 (Ind. 1990). The court has even held that a suspension of applications for a license to carry guns on one's person violates the right: "Suspension of the handgun license application process did nothing less than deprive the citizens of a right guaranteed to them under the Indiana Constitution."

The Mayor's response to this was "The Rules and Regulations are known by people who are entering a campground. If they don't like them, they can go somewhere else." More broadly, throughout our conversation, the Mayor focused on the need to maintain "a good family environment" for campers' benefit, and he seems to have thought that the public display of flags and the private possession of firearms would be inconsistent with such an environment.

But while I can see his point (though I don't quite agree with it, since in my view families should be entitled to express themselves and defend themselves), I think the Constitution doesn't allow the government to just say "To park here — and to live for several weeks or months here — you must waive your constitutional rights."

The government as proprietor may have some extra power over its own property than it has over private property. But the Court's First Amendment jurisprudence makes clear that this doesn't include the power to restrict speech based on its viewpoint. And, I think, the Indiana courts ought to conclude that it doesn't include the power to deny people their right to bear arms — or, for instance, their right to be free from unreasonable searches and seizures — in the place where they're going to live and sleep, even temporarily.

The courts in neighboring Michigan, unfortunately, take a different view, allowing public housing projects to take away tenants' right to bear arms. But for reasons I mention in that post, I think that decision is mistaken.

I wish the Indiana ACLU had also challenged the restriction on the other constitutionally protected rights (though I acknowledge, given the points I make above, that it would be a tougher case to win).

Thanks to How Appealing for the pointer.

Thanks to the fabulous Jenny Lentz and the equally fabulous UCLA Law Library, I can pass along pointers to four sites that list law student writing competitions, some of which offer decent amounts of money. Not the easiest way of making a living, I suspect, but if you already have a paper written, why not submit it?

The most complete site, I'm told is the Richmond one, but there are also three others, at Lewis & Clark, St. Louis University, and 4lawschool.com, that seem to have at least some things that the Richmond site does not. Good luck!

Several readers asked, apropos this question, why we say "father-in-law" and such at all. The Oxford English Dictionary says that this flows from Canon law, which defined which marriages were forbidden. "[A] brother-in-law or sister-in-law [was], as regards intermarriage, treated 'in law' as a brother or sister."

I don't think this explains, though, why we usually don't say "uncle-in-law" or "niece-in-law"; according to this Canon Law source, the prohibition on marrying one's wife's relatives extends to aunts, uncles, nieces, and nephews. (If I recall correctly, Leviticus does not forbid marriage to one's niece, even a blood relation, but Canon Law departs from Leviticus in this respect.)

Maybe the Canon Law rule was different once upon a time, but I have no reason to think so. Moreover, "-in-law" sounds like the sort of suffix that English speakers would extend to other terms even beyond what was authorized by the original etymology. If we can talk about workaholics and telethons, we can talk about nieces-in-law. But for some reason, we don't.

So why do people talk about mothers-in-law, sons-in-law, sisters-in-law, but not nephews-in-law, or aunts-in-law? It's just nephews or aunts (or sometimes "my wife's nephew" or the like). Naturally, practices doubtless differ in some measure, so some people might say "daughter" instead of "daughter-in-law." But I think I'm right about the general pattern, and some quickie google searches support that.

Two possible theories:

1. We tend to be quite close to our parents, children, and siblings, so calling someone with whom we lack a blood tie — and whom we've often known only for several years — "mother," "son," or "sister" might grate on many people. That's not as much of a problem with aunts or nephews.

2. We refer to uncles-in-law and nieces-in-law more rarely than to the other in-laws. Yet why would this stop us from just adding "-in-law" when we do need to refer to them that way? Maybe because given the rarity of the reference, the terms will always sound unusual and thus inapt. I'm not wild about this theory, but I just thought I'd flag it.

While we're at it, why are there gender-generic terms "parents," "siblings," and "children" — and, in English, only a gender-generic "cousin" — but not "auncles" or "niecews"? (No, I'm not serious about those two particular suggestions; I'm noting the absence of any such word.)

UPDATE: Reader Stefani Smith correctly pointed out that I was using the word "blood tie" in item 1 loosely. I certainly meant to include adoptive relationships, where the emotional tie is generally as close as a blood tie, and step-relationships of long enough standing (for instance, a child's relationship with a stepfather who had been parenting the child since a very young age). I was using blood tie to refer to the most common such longstanding, cohabitating, nuclear family relationship. But indeed the real point of my item 1 is that the value that people place on very close familial relationships (blood, adoptive, or longstanding step-) deters many from calling a mother-in-law simply "mother."

Jon Lauck, whose blog is focused on the Daschle v. Thune South Dakota Senate race writes (some paragraph breaks added, links omitted):

To the left is a picture of Senator Tim Johnson of South Dakota, with Senator Daschle and Stephanie Herseth behind him, railing against the "Taliban wing of the Republican Party" at a Herseth rally yesterday in McKennan Park in Sioux Falls. [Johnson's] statement has generated a firestorm -- see here, here, and here -- and calls for Johnson, Daschle, and Herseth to apologize for the remarks. The immediate context is the House special election next week that Herseth is competing in against Larry Deidrich . . . . The broader context is the major speech Senator Daschle gave earlier this month decrying the "startling meanness" in American politics and denouncing the tactic of "demonizing those with whom we disagree." Instead of intervening after Johnson's remarks, however, Daschle stood by and clapped.

Ironically, in his "meanness" speech, Daschle said Johnson was compared to Saddam Hussein during the 2002 election cycle and that was unfair. First, Johnson was not compared to Hussein. The ad said that Hussein and others posed a potential WMD threat and therefore a missile-defense system was needed and criticized Johnson for voting against the system. Daschle's continued statements that Johnson was "compared" to Hussein are completely wrong . . . .

UPDATE: Senator Johnson says he's not apologizing.

Go to the post itself for links.

I have to say that I find this whole stuff about "Taliban wing," "Benedict Arnold CEOs," and so on pretty appalling -- much like calling people you dislike "Communists" or "terrorists" (as in Secretary Rod Paige condemning, apparently jocularly but still inappropriately, the NEA, or as in various people condemning the NRA).

(Claims that someone is inadvertently helping terrorists are a somewhat different matter; I blogged about that here.)

CNN is running another junk science poll, this time on whether the federal assault weapons ban should be lifted or extended. The poll is of course invalid, because it's based on a self-selected sample -- yet its results will be available on the CNN site, and I'm sure some people will think it's accurate.

I think the assault weapons ban is a bad idea; even Tom Diaz, of the strongly pro-gun-control Violence Policy Center, acknowledges that "If the existing assault weapons ban expires, I personally do not believe it will make one whit of difference one way or another" in "reducing death and injury." Likewise, as I wrote last year,

ASSAULT WEAPONS BAN: Jacob Sullum at Reason's Hit & Run writes:

The "assault weapon" ban is important as a precedent precisely because its justification is so slight. It suggests that you don't need a good reason to limit Second Amendment rights. It also invites further infringements down the road, as supporters take the critics' arguments to heart and start arguing that the ban is not broad enough. After all, it covers only a very small percentage of the guns used in crimes.

I'm actually not sure that the assault weapons ban does violate the Second Amendment (for complex reasons that I lack the time to go into, but that are indeed based on the very slight actual burden that it itself imposes on people's ability to be armed), but the general point is quite right. (The reason the justification is so slight is that, as Sullum points out, the law "ban[s] weapons based on little more than their militaristic appearance. As [Rep. Ron] Paul notes, the guns covered by the law are not true assault rifles, which are capable of automatic fire. The banned weapons are semi-automatic guns, firing once per trigger pull, that are neither especially dangerous nor especially favored by criminals.") And if you're inclined to pooh-pooh the slippery slope argument here, consider what Charles Krauthammer, a proponent of a total gun ban says:

In fact, the assault weapons ban will have no significant effect either on the crime rate or on personal security. Nonetheless, it is a good idea . . . . Its only real justification is not to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate confiscation.

If you agree with me on this, please go here and vote in the "QuickVote" box. (If the results end up being anti-assault-weapon-ban, I certainly wouldn't endorse pushing the results as accurate data, either. But right now they're lopsidedly pro-ban; perhaps if they even out in some measure, neither side will end up making much out of this, and the data will end up being ignored, as it should be.)

If you don't agree with me on this, why, just pretend you didn't read this post. You don't need to see that Web page. This is not the poll you are looking for. Move along.

Now that Tyler and Pejman Yousefzadeh are also raving about Cryptonomicon, I thought I'd mention again a question I asked nearly two years ago:

Who is the first other descendant of the World War II-era gang whom Randy meets, and what is his/her full name? Special extra points (awarded in your own mind) if you figured it out on your first read of the book. The answer is here.

A Council on American-Islamic Relations (Los Angeles) press release reads:

The Southern California office of the Council on American-Islamic Relations (CAIR-LA) today called on local and national law enforcement authorities to treat an arson attack on a pro-Palestinian university display as a possible hate crime.

University of California-Irvine (UCI) students reported to CAIR-LA that the display challenging the wall Israel is building on Palestinian land was torched late Thursday or early Friday morning. The display, made of cardboard boxes and built by the Society of Arab Students (SAS), was a replica of Israel's new wall.

Display sponsors say the symbolic wall was built to demonstrate the negative impact Israel's barrier has on the daily live of Palestinians and on prospects for peace in the Middle East. The display was one of a number of activities during a Palestine awareness week organized by the Muslim Student Union (MSU).

"Because of the ethnic and religious nature of the display and its sponsors, we urge campus police and the FBI to investigate this attack as a possible hate crime," said CAIR-LA Public Relations Director Ra'id Faraj. "Muslim and Arab students should feel safe in exercising their First Amendment rights, free of intimidation or harassment." . . .

Now, let me say, first, that destroying speech that you disagree with — whether it's a display that criticizes Israeli policy, or campus newspapers put out by conservative groups — is wrong, and the legal system should certainly punish the people who did it. And second, I continue to oppose hate crimes laws generally. Though there are plausible arguments why attacks motivated by the victim's race, religion, and the like are more harmful than physically similar attacks that are motivated by other factors, I think that on balance attempts to treat these motives differently do more harm than good.

But setting this aside, note the logic of the CAIR release: Hostility to political arguments that benefit Palestinians, and that defend Palestinian claims, is, in CAIR's view, racial and religious bigotry. When such hostility leads to physical attacks, that makes it a hate crime. Presumably when the hostility leads to verbal criticism, that would still (even in CAIR's view) be constitutionally protected speech, but it would still be racial and religious bigotry.

If that's so, then under CAIR's own reasoning, anti-Zionism would indeed be anti-Semitism. After all, one would say, "Because of the ethnic and religious nature of [pro-Zionist speech] and its sponsors," strident criticisms of such speech should be treated as bigoted speech (or, if they lead to physical attacks, as hate crimes). "[Religiously Jewish] and [ethnically Jewish] students should feel safe in exercising their First Amendment rights, free of intimidation or harassment."

Now I actually don't think that anti-Zionism, in the sense even of argument that Israel ought not exist, or that Israel ought not have been created (a somewhat separate question), is inherently anti-Semitism. But I also don't think that hostility to Palestinian opposition to the Israeli-Palestinian wall is inherently bigoted against Muslims or Palestinians.

CAIR, though, thinks that enmity towards one side in the Israeli-Palestinian debate is indeed religiously and ethnically bigoted. It seems that under their logic, enmity towards the other side is bigoted as well.

A Portland TV station reported several weeks ago (I just ran across a pointer to this in a recent news story):

Teenager Under Fire For Wearing Hitler T-Shirt

Jewish Teachers, Students Offended . . .

On the first day of Passover, freshman David Herbison wore a shirt with a quote from Hitler advocating gun control. He says it is actually a commentary against gun control.

"It's something that's going to be an idea that some people don't agree with, and I knew that going in. But it had no intent of being offensive or anything like that," Herbison told KOIN 6 News.

School officials say some Jewish teachers and students were offended. Administrators say they support Herbison's right to free speech but want him to participate in a forum with others who may disagree with him. . . .

The Oregonian also covered this story.

The strange thing about this is that the quote is clearly not an attempt to endorse Hitler -- it's an attempt to discredit gun control by means of linking it to Hitler. It only works precisely because the speaker and the listeners believe Hitler to be a monster.

If Jewish teachers and students didn't understand this, then they should have at least asked the student, who I'm sure would have made his point clear for them. If they did understand this but think that it's somehow inherently wrong to ever quote Hitler on anything, then it seems to me that they're just mistaken.

On the other hand, apparently the student should be faulted for another reason: If this is the Hitler quote that I think it is, then it's apparently bogus.

The East Bay Express has a long story on the subject; here are two particularly striking excerpts:

A milder but more instructive glimpse of the hatreds that inflame Cal was on display February 10, the day Daniel Pipes lectured at UC Berkeley's Pimentel Hall. Pipes runs a project called Campus Watch, which through its Web site, CampusWatch.org, monitors Middle Eastern Studies departments at American schools, including Cal. The site keeps dossiers on instructors it believes are biased against the United States, and Pipes writes a steady stream of articles with intentionally provocative headlines such as "When Osama Bin Laden Becomes PC" and "The Muslims Are Coming! The Muslims Are Coming!"

Berkeley Hillel, the Jewish student organization that sponsored the event, had printed fliers calling Pipes "a member of the presidentially appointed US Institute for Peace and a prize-winning columnist." His detractors called him something else entirely. "Racist Daniel Pipes to speak at UC Berkeley," ran an announcement at Indybay.org the day of the lecture, urging readers to protest this visit by a "notable bigot and neo-McCarthyist."

Outside the hall where [Daniel] Pipes was to speak, you could cut the tension with a knife. Protesters had assembled early: young women wearing the hijab; young men clad in yarmulkes or Muslim skullcaps; and, of course, plenty of Cal sweatshirts. One protester hoisted a sign reading, "Israel: Born of British colonialism. Created through Zionist terrorism. Supported by Western imperialism. Sustained by Israeli militarism." Another man circulated silently, bearing a small sign that read, "Another Jew opposed to Daniel Pipes." Female voices ululated.

One flier making the rounds declared, "The neoconservatives and the Jewish Lobby ... planned the Iraq wars. ... Most of the US media ... are Jewish owned." Meanwhile, the largest sign said, "I Want You! to DIE for Israel. Israel sings: 'Onward christian soldiers.'" On the reverse side, in an attempted riff on "Pax Americana," the sign said, "I WANT YOU TO KILL FOR THE AMERA-ISRAELA POX!" Large rakish swastikas replaced the letter "s" in "Israel" on both sides of the sign. The sign-bearer's Uncle Sam hat was emblazoned with another swastika.

"So what exactly does Daniel Pipes represent to you?" one young protester demanded of a middle-aged man whose point of view she surmised by his refusal to accept a pamphlet. "Are you proud of his racism?"

Two male students, like college guys anywhere, eyed a group of young women whose hair was hidden under the hijab, their blue-jeaned legs and excited voices shivery in the cold. "I wonder how all these women who are supporting the Arabs would feel about being clitorecticized," one of the guys murmured to his friend. By that, he meant the practice of clitoridectomy, which is followed in some traditional Islamic cultures.

Sophomore Sandra Tahani was one of the women wearing headscarves. "Daniel Pipes is trying to incite pure hatred and racism," she said with fire in her eyes. "He wants to shut down the Center for Middle Eastern Studies. I'm with Students for Justice in Palestine. I'm with the Muslim Students Association, too. I'm with everyone that stands for justice. I'm an American." She said her parents are Muslim, although her mother converted from Judaism. "Coming from a Jewish heritage -- she has relatives that died in the Holocaust -- my mom says the Holocaust is being used to justify the Israeli occupation of Palestine." Other young women in headscarves clustered around her, their eyes blazing too.

A hush fell over the crowd as four women protesters in black clothing slowly descended into the plaza. Balanced on the shoulders of each was an armchair-sized papier-mâché head complete with hijab and frozen expression of grief. The women's eyes peered through the gaping papier-mâché mouths. Forming a row, they faced the crowd with gloved hands upraised as if in supplication. A pink-faced man moved somberly from one to the next, symbolically draping limp rag dummies in the shape of dead babies over the waiting arms of each.

"This is worse than the Warsaw ghetto," muttered a Jewish man in the queue.

As campus police assembled at the entrance to the hall and prepared to open its doors, a kaffiyeh-clad protester hoisted a placard that read: "What is going on in Palestine today cannot be justified by any moral code of conduct." The quote was attributed to Mahatma "Ghandi" in 1938, albeit a decade before there was an Israel. A silver-haired man, older than most in the crowd, burst out of the line to confront him.

"Do you know what it's like to be on a bus, and to see that bus blow up and see heads roll down the street?" the older man shouted, arms wild at his sides. "I've seen it -- in Israel."

The sign-bearer stood firm. "Well, they should have been killed," he yelled, his voice rising. "They should have been killed! They should have been killed because it wasn't their land! They should have been killed and it should have been more."

"You don't know history," the older man yelled. "You don't know anything."

The protester gave as good as he got: "You can leave. Get your ass out of here and back to Israel." Then, equating Israelis with criminals who have broken into someone else's house, he said homeowners in such an instance have the right to kill. "If you broke into someone's house and stole something . . . you'd deserve to die! The Jews broke into Palestine and stole the land -- so they deserve to die. . . . What's your address? Why won't you tell me? Are you afraid? I'll come break into your house and we'll see if you try to kill me. It's natural." . . .

On the day Pipes made his case in person, no purses or backpacks were allowed into the lecture hall for security reasons. Members of the audience were admonished not to shout, heckle, or hold up signs, at the risk of being escorted out of the building. Campus police patted down each person coming through the door.

The auditorium was full, with protesters occupying several rows on the right flank and scattered throughout the hall. The overhead lights bathed a sea of shining hair, flowing scarves, and skullcaps. One man's olive-drab yarmulke had the words "Israeli Army" embroidered on it. Campus police studded the aisles, five down each side. Dark-suited bodyguards framed the podium as Pipes, looking formal and disarmingly slight, entered the room to a storm of boos and applause.

"It's an unfortunate fact of university life that such security is necessary today," Pipes said. Still, after teaching thousands of students at the University of Chicago and Harvard and delivering nearly a thousand lectures at other universities over the last few years, he could not possibly have been surprised by the response his remarks elicited. Indeed, within moments, the first heckler leapt to his feet and was escorted out. Again and again, as Pipes parsed the difference between mainstream Muslims and "militant Islam," the auditorium rang with both wild cheers of approval and cries of outrage.

"The same people who support militant Islam," Pipes ventured in a butter-cookie voice whose softness seemed a calculated counterpoint to its message, "support suicide bombers and Saddam Hussein."

To the accompaniment of cheers and cries of outrage, a red-haired female protester became especially vocal and was escorted out.

"This is an ideology like fascism and like Marxism that seeks to impose views on its subjects," Pipes said, calling it a "totalitarian ideology which we must seek to destroy."

From among the protesters, a voice shouted: "You guys are Nazis!"

"Why was the World Trade Center attacked?" Pipes asked. "What was the reason?"

"Zionism!" someone yelled.

When Pipes proposed that global unrest can be addressed only "when we call it what it is: not a war on terrorism but a war on militant Islam," a chanting chorus erupted: "Ra-cist! Ra-cist!"

"Let him speak!" came a strangled yell. "Freedom of speech!"

"Ra-cist! Ra-cist!"

"It's so satisfying to see one's theoretical points proven so quickly," Pipes said in his best butter-cookie voice.

When he went on to call for Palestinian acceptance of Israel's existence, hisses swirled in the hall like steam. "No!" shouted many in the crowd.

"Death to Zionism!" proclaimed a voice.

"I thought this was an institution of higher learning," Pipes said, baiting his hecklers.

"You racist Jew!" cried the protester who had been hoisting the Gandhi sign.

"Ra-cist! Ra-cist!"

Pipes asked what race had to do with anything: "I haven't mentioned race."

He reserved the evening's harshest criticism for "my colleagues in Middle Eastern studies," among whom he decried "a significant element of incompetence. The field is adversarial, intolerant, and my colleagues consistently get the facts wrong." This met with laughter from the crowd, half in gleeful accord and half in derision. By exercising what he called "abusive power over students," Pipes said Middle Eastern studies instructors "too often coerce students into taking a party line, at the same time intimidating and penalizing those who don't."

"End, end the occupation! Free, free Palestine!"

Another sign waved in the air and another protester was escorted out. "Go blow yourself up," someone yelled at the protester's departing figure.

"I don't think my colleagues are doing a good job," Pipes continued. "If I think my colleagues in Middle Eastern studies aren't doing a good job, why don't I have the right to say so? Why do I get called names?"

"Because you're a racist Jew!"

"These scholars know better," Pipes continued, "but they're hiding what they know."

"Racist Jew!"

"My, my," he said, looking up with a wry smile from the microphone. "Don't we have elevated discourse at this university."

After the lecture, attendees filed out of the hall to discover that the protesters had massed so as to allow only a narrow passage between themselves and a retaining wall. In effect, all those leaving the lecture were forced to walk a gauntlet. Some ducked their heads, others set their jaws in anger, squeezing past the dozens of assembled faces chanting "Shame! Shame! Shame!" as fists pumped the air in unison.

A young woman in a kaffiyeh screamed up at a Jewish student significantly larger than herself. Her lips were wet with fury. "If I don't agree with you, then you call it anti-Semitism!" she shouted, as friends arrived to support her. The young man was surrounded. "You call it anti-Semitismmm!" she raged. "Why can't you tolerate anti-Semitismmm?" . . .

A reporter called to interview me about this incident's legal dimensions, and now that the reporter's story is out, I thought I'd share the legal analysis here.

A brief sketch of the legal question (yes, I know, it's almost self-parody to reduce this whole thing to the legal issue, but I write about what I know), at least based on the facts as I've seen them reported: Anonymous Senatorial aide blogs about her sex life, including what seems like her being paid for sex. She does not use any names. Someone finds out and blows the whistle to her boss. The boss fires her. First Amendment violation?

Here's the general rule for the First Amendment protections that government employees have against their employers (including Senators). The first four items are ways that speech might lack constitutional protection, which is to say that the government employer would be free to fire the employee. The fifth is a summary of when the speech is protected:

1. If the employee is in a policymaking position (e.g., a high government official), or perhaps some other position where tight control over the person's speech is important (e.g., possibly a close advisor to a politician), then the employer has virtually unlimited power to fire the employee based on her speech. If Washingtonienne had been a high-level staffer, or even a mid-level staffer, she might therefore be firable under any conditions. If she's just a secretary or a gopher, though, she might have some First Amendment rights. What if she was a low-level staffer, but had some responsibility for advising the Senator, even through superiors, on certain political subjects? Hard to tell what the rule would be.

2. Employees have no free speech rights when speaking on behalf of the government or their government employers. If Washingtonienne had included this stuff in the Senator's newsletter, she would have been eminently firable. But she didn't, so this item doesn't apply to our case.

3. There's generally no First Amendment problem when an employee is fired based on speech on matters of purely "private concern," a fairly expansive category that includes even complaints about one's own job conditions (though one might think that these are of public concern, since they may involve inefficiency at a government office, they are generally treated as being merely of private concern for purposes of this test).

   Washingtonienne's speech would almost certainly be treated as being on a merely "private concern" (I know there are counterarguments, but I'm quite confident of this prediction), and she would thus be firable for it. However, a recent Ninth Circuit decision suggests that this prong shouldn't apply for off-the-job speech, so that even private-concern off-the-job speech should generally be constitutionally protected (subject to the other items I mention here). If that decision is accepted more broadly (I can't predict whether it would be), then Washingtonienne might not be punishable under this prong.

4. Even when the employee's speech was on a matter of public concern, she may still be fired if the potential damage that the speech caused to the effectiveness of the office — in distraction, lost morale, interference with working relations, coworkers' loss of confidence in the speaker, lost confidence on the public's part, and such — outweighs the value of the speech to the speaker and the listeners. How does one weigh such incommensurable elements? How does one even quantify them? Impossible to tell exactly, but that's what courts are supposed to do. And in this case, the constitutional value of the speech (under the Court's caselaw) seems so low that the potential damage to the office -- once, of course, Washingtonienne's identity was revealed to her officemates, and inevitably to the public, even if she hadn't been fired -- is sufficient to justify firing her.

   Note that if the speech is done on employer time or employer property, this is one factor that cuts against the employee in the balance. If the speech violates a preexisting employer rule, that's another. But neither factor is dispositive (see Connick v. Myers [1983]).

   Thus, half of the stated reason for the firing -- that the "employee had been using Senate resources and work-time to post . . . material to an Internet Weblog" -- doesn't categorically dispose of the First Amendment question. (If there really were an across-the-board rule that one can't use work computers for personal purposes, that would strengthen the employer's case; but I highly doubt that there was such a rule in practice, since I suspect that at least personal e-mail from work computers is generally allowed, and probably posting things to Web sites might be, too.) Rather, it's the point that I replaced with an ellipsis in the quote before -- that she was "post[ing] unsuitable and offensive material," and that this speech is of purely private concern and in any event is likely to harm the effectiveness of the office -- that should doom any First Amendment defense she might raise (and note that I have no reason to think that she would try to raise it).

5. The above are all ways in which speech might lack First Amendment protection against the government as employer: The employee may be fired for it, though not necessarily fined or sued or jailed for it. If none of these apply, though — if the employee was (1) a non-high-level employee (2) speaking on her own behalf (3) on a matter of public concern and (4) the disruption caused by the speech does not outweigh the value of the speech — then the employee cannot be fired or demoted for the speech.

But wait, there's more — and this may be dispositive, if this were the true reason for the firing. (The official statement doesn't give this as a reason, but I suspect that it might indeed be a big part of the reason.) All the analysis above applies when the government punishes speech simply because the employer doesn't like the speech, or thinks the speech will interfere with the smooth functioning of the office or the office's public profile. Speech, though, can generally be used as evidence of what someone has done (even in criminal cases) with no First Amendment problem.

So if the staffer was fired because she engaged in prostitution (or the employer reasonably thought, based on her speech, that she engaged in prostitution), then there's no First Amendment problem at all, even though the way the employer found out about the prostitution was indirectly through her blog.

Friday, I posted this item:

Pretty pathetic high school censorship incident. There may well be some significant details omitted here — it'll be interesting to see if this gets some more press investigation — but based on what I've seen so far, seems pretty bad.

(I also included a PDF of the teacher's federal court Complaint.)

I have now gotten, from the school, the school's response (thanks to Reader John Anderson for alerting me to the existence of the response, which was posted in the Comments thread at The Agitator); if the school is correct, then indeed there were some significant details that were either omitted or incorrectly reported. I do not know who is right and who is wrong, but since I linked to the original item, I thought I'd also include the school's response:

Thank you for your call asking for the information on our statement on the recent Daytona Beach newspaper editorial. Here it is. . . .

Statement Regarding Recent Publications Referring to the Nevins Lawsuit

Recently, the Daytona Beach News-Journal published an editorial highly critical of Rio Rancho High School and some of its staff members. It was written by Bill Hill, a columnist for the paper and, he states, a friend of Bill Nevins, an untenured teacher whose contract was not renewed at the end of the 2002-03 school year. Mr. Nevins is currently engaged in a legal action against the Rio Rancho Public Schools.

While we recognize the right of newspapers to engage in fair criticism, such criticism should be grounded in the facts. We are disturbed that neither the writer nor the Daytona Beach News-Journal contacted the school district for information or comment. This editorial, simply put, is rife with inaccuracies, misinformation, and outright untruths. Its publication constitutes a reckless disregard for the truth to such a degree that Rio Rancho Public Schools has asked its lawyers to review and evaluate what legal recourse may be available.

Because Mr. Nevins' case is in litigation and involves a personnel issue, Rio Rancho Public Schools has been limited in what it can say in response to the many misrepresentations that have appeared in the media. We are unable to discuss the reasons Mr. Nevins was not rehired. However, we can state the reasons have nothing to do with the exercise of free speech or free expression. This is not a free speech issue.

The original lawsuit included three causes of action. Two of these claims, for breach of his employment contract and for retaliation, have since been dismissed by the federal court.

We wish to assure the public that the teaching, reading, and writing of poetry are alive and well at Rio Rancho High School. The editorial's contention that the school's principal ordered an end to the teaching, reading, and writing of poetry is so ludicrous as to be almost laughable.

While we cannot discuss a case in litigation, we can address some of the inaccuracies in the editorial that are not part of the case:

• The editorial describes an incident involving art students and teachers and "un-American" student posters. This incident did not occur at Rio Rancho High School or anywhere in the Rio Rancho Public Schools. It happened in a neighboring New Mexico school district and was widely reported by the local media. A cursory check of the archives of the Albuquerque papers would have revealed this fact.

• Neither the Rio Rancho School Employees, Union (the union representing most district employees) nor the American Civil Liberties Union are parties to the current legal action.

• The editorial states that the principal read a patriotic poem at a flag-raising ceremony and shouted "shut your face," to those who did not share his opinion. There was indeed a ceremony held to receive a flag that had been flown in the war theatre and donated to the school. A student read a poem written by a soldier serving in Iraq. The "shut your face" reference is part of this poem.

• The editorial states that Mr. Nevins was unable to go to work at another school because the principal wouldn't forward his credentials. On September 11, 2003, the Rio Rancho Observer reported that Mr. Nevins was employed at a public charter school in Albuquerque. Procedurally, requests for credentials must be properly authorized by the employee and submitted to the Human Resources Department (not the principal). All such requests are promptly processed.

• The editorial describes a poem written by a student named Courtney, and states that her mother (described as being a teacher at the school) was ordered by the principal to destroy the girl's poem or face dismissal. Not true. The student's mother is not a teacher; however, she was and continues to be employed by the school district. She was never threatened with being fired, nor was she ordered to destroy the poem.

The district stands behind former RRHS principal Gary Tripp and others who have been unfairly maligned in this editorial and in other media in the months since Mr. Nevins' departure. We also regret that Courtney and her family have been subjected to unwanted public attention. About a year ago, Courtney wrote a statement that was published in two local papers as a letter to the editor. She has given us permission to share this letter with you, and we hope it helps you further understand this situation.

Thank you for your inquiry and for giving us the opportunity to respond. We look forward to a resolution of this issue in the legal system.

______

To Whom It May Concern:

This is the first and last time I will discuss publicly the controversy surrounding my poem, the Slam Poetry Club, and RRHS teacher Bill Nevins, the club's sponsor.

During the fall semester at RRHS I wrote a poem entitled "Revolution X." I, along with other students, delivered poetry in the Performing Arts Center at the high school. We received praise from staff and students in the packed auditorium. Early in the spring term, I read my poem again on the school announcements. This poem is a social commentary. It comments on how our society claims to value education, but in actuality spends energy, time and resources on other things, such as war. A staff member, who has a military background and military mindset, complained about the poem, saying it was an anti-war speech. I can only assume that he cannot distinguish between a speech and a poem, or that he did not recognize it as an allegory.

Due to the complaint, the administration asked for a copy of the poem. No one demanded that my parents "search my room" for the poem, as has been reported. I delivered it to the RRHS administrators when I got back from Spring Break because they wished to read it. They read it, looking for two things: profanity and incitement to violence. They found neither. I was not disciplined. My freedom of speech was not violated. It has been suggested that I was not disciplined because my parents are on staff at the high school. Let me assure you that's not the case. In my years at Rio Rancho High School, I've been tardy to class and been busted for dress code, receiving my fair share of hours in after-school detention. Staff members' kids are not given preferential treatment.

When I asked the administration why Mr. Nevins was put on administrative leave, I was told that the reasons would not be discussed with me, but that they had absolutely nothing to do with me or my poem. I accept that. The administration at RRHS has been nothing but supportive of my poetry endeavors and continue to encourage my writing, even in light of all this nonsense.

Will the Slam Poetry Club continue to function in the absence of Mr. Nevins? I don't know. I don't plan to participate because I simply do not have the time. I'm trying to make a good grade in Chemistry, maintain my GPA, choose a college for next year, and get on with my life.

However, I am angry about two things. My poem has been put on the Internet. I did not give permission for anyone to print it or copy it. What makes it worse is that lines have been changed and added. My poem has been prostituted for the world to see. My freedom of speech has been violated because I chose not to speak, but now my words are under scrutiny despite my attempts otherwise.

My family and I have been bombarded for weeks with questions about all of this by newspapers, TV stations, and even national publications. My family's well-earned Spring Break was interrupted repeatedly. This has caused undue stress for my family and is not appreciated. I will comment no further on the subject. I will accept neither calls nor visitors wishing to discuss anything pertaining to this issue. Now that curiosity has been satisfied, I can only hope that we will focus on something more important, like bringing home everyone fighting in the war we insist on having.

Sincerely,

Courtney Butler

A small and largely irrelevant aside, but it's the only value I can add, lacking any more perspective on the facts: The Rio Rancho Public Schools itself has no recourse against the columnist, even if he did libel them, because under the First Amendment a government entity may not maintain a libel lawsuit — even against someone who knowingly lied about that entity. A relatively little-known part of New York Times v. Sullivan (1964) so holds.

But the specific people who were criticized, such as the principal (who wasn't named, but whose name was doubtless known in the community, and whose name could be — and was — determined by others) could indeed sue the columnist for libel, again if the columnist engaged in reckless or knowing falsehoods. (I believe that the principal would be viewed as a public figure, because he is a fairly high-level official in a government-run organization — the high school.)

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One often hears that no Amendment has ever amended the Bill of Rights. (Let's set aside whether various restraints on state power amend the Tenth Amendment, and let's set aside the many times that the Supreme Court has in effect amended the Bill of Rights.)

It turns out, though, that this probably isn't quite true. Two constitutional amendments have indeed likely amended two parts of the Fifth Amendment:

1. In Dred Scott v. Sandford (1857), the Supreme Court struck down a federal statute that declared many territories to be free, so that slaves who were taken there by their owners were liberated. The statute, the Court held, violated the Due Process Clause by wrongfully depriving owners of their property. It seems pretty clear that nationwide abolition would have likewise been a violation of the Due Process Clause under Dred Scott. The Thirteenth Amendment in effect modified the Fifth Amendment to make clear that slaveowners could indeed be deprived of their property in slaves. (Of course, one could argue that this didn't really amend the Bill of Rights as it should have been understood, but only as the Court misunderstood it -- but the backers of most proposed amendments of the Bill of Rights would say the same about their proposals.)

2. Even if depriving slaveowners of their property was constitutional, it might well have required the government to pay compensation. The Supreme Court had never passed on the matter, but as I understand it many people of that era assumed that compensation would be required, and some statutory emancipation schemes did indeed provide for compensation. Section 4 of the Fourteenth Amendment provides that "neither the United States nor any state shall assume or pay . . . any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void." This of course does more than reject a right to compensation -- it actually prohibits compensation even as a matter of voluntary legislative judgment. Still, it probably did in some measure alter the then-existing understanding of the Just Compensation Clause.

3. The same section of the Fourteenth Amendment also modifies the Free Speech Clause, by providing that "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned." No, I'm just joking about that, though I've seen some constitutional theories that make about as much sense as that.

I don't want to suggest that these items are especially helpful to modern debates: I think the "it's inherently wrong to amend the Bill of Rights" arguments are unsound, but while these examples do in some small measure help show that sometimes the Bill of Rights need changing, I don't think they're really that relevant. But I just think they might be interesting historical tidbits for those who like this sort of thing.

An interesting Slate piece explains why.

(apropos this post from several days ago):

1. The same Seattle ordinance, I realized, prohibits discrimination based on "political ideology," defined as "any idea or belief, or coordinated body of ideas or beliefs, relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group." So the hypotheticals I gave in this paragraph

Whether or not we agree with her, I think we must acknowledge that [the coercion of the printer] is a significant loss of freedom for her — just as it would be a loss of freedom to force an ethical vegetarian building contractor to help build a meatpacking plant, to force a militant Democrat printer to print Republican flyers, or to force a pacifist mechanic to help repair tanks that are on their way to the battlefield.

2. Several readers asked whether this might violate the printer's First Amendment rights not to be compelled to speak. That turns out to be a tough question. Under the First Amendment, publishers generally can't be required to include into their existing publications things that they don't want to include; for instance, some recent attempts to force newspapers to run coverage of same-sex weddings alongside coverage of other weddings would almost certainly violate the First Amendment. But it's not clear whether printers have a similar right not to be forced to print standalone materials, which won't interfere with the printer's other speech, and which probably won't be associated by readers with the printer.

The strongest argument on the printer's behalf, I think, would be based on the Abood v. Bd. of Ed. line of cases, which held that people may not be forced to contribute money to unions, state bars, and other such groups, when that money will be used for ideological advocacy. There are some exceptions, see, e.g., Southworth v. Bd. of Regents (student fees at public universities), and of course the government may force people to give money to the government itself (via taxes) even when that money will be used for ideological advocacy. But this is still the basic rule.

It seems to me that forcing people to actually do work on producing speech they disapprove of (not just when they're government employees, but when they're private citizens that the government is regulating) is at least as much of a First Amendment problem as forcing them to contribute money that helps produce speech they disapprove of. One possible distinction is that here the speech isn't overtly political; but an invitation to a same-sex marriage is these days (for better or worse) a political statement, often intended as such and often perceived as such.

The best arguments against the First Amendment claim, I think, would point to the PruneYard and Turner Broadcasting cases. PruneYard upheld a requirement that owners of large shopping centers allow speakers to use their property; Turner upheld a requirement that cable operators carry certain cable channels. But Turner, I think, was a special case because of the cable operator's monopoly power. And the law in PruneYard was less burdensome on the property owner — there the shopping center owner simply had to let speech onto his property; here the business owner would have to directly, and quite possibly personally, work in the actual production of speech that he disapproves of. Nonetheless, the compelled speech doctrine is messy enough that it's impossible to tell for sure how a court would (or even how it should, given the precedents) come out on this.

3. Finally, the Washington Constitution has been interpreted as providing religious objectors with a right to get exemptions from laws that burden their religious practices, unless the law is "narrowly tailored to a compelling interest." Thus, if the printer had a sincere religious objection to printing the invitations (and not just a philosophical objection unrelated to her religious beliefs, if any), then she might be entitled to a religious exemption, unless the court concludes that the law is indeed "narrowly tailored to a compelling interest." The track record of such exemption claims (mostly raised by landlords who claim a religious obligation not to rent to unmarried couples, and who thus want to be exempted from state laws that ban marital status discrimination in housing) has been mixed. Naturally, litigating to get such exemptions (even if you do have a sincere religious objection to the behavior that you're being required to engage in, which isn't clear as to this particular woman) is not easy and not cheap.

There may well be some significant details omitted here — it'll be interesting to see if this gets some more press investigation — but based on what I've seen so far, seems pretty bad.

UPDATE: I've posted a PDF of the teacher's federal court Complaint for your reading pleasure. Thanks to reader Dale Betterton for passing it along.

FURTHER UPDATE: The school's response is posted here. If the response is accurate (and authentic), then the matter is naturally quite different than it was first reported to be.