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Monday, June 21, 2004

P.G. Wodehouse and Hiibel:

Professor Bainbridge has a puzzle about the two -- you wouldn't think they'd go together, but apparently they do. I read all the Jeeves books, and many other Wodehouse books, and liked them very much; but I confess I have no idea what the answer is.

Gay Eugene:

A google search for Gay Eugene, it turns out, yields the Volokh Conspiracy as the #1 result. I learned this from a friend of Sasha's (who goes by Inspired Turnip), who did the search because she was looking for "a gay business directory" "to find a man with a flair for interior decorating to help me choose window treatments for my home here in Eugene, Oregon." Hey, we'll take traffic however we can get it.

Cary Grant: In response to the Men and Sexy thread, a reader passed along this amusing excerpt from Mark Kingwell's Catch and Release (I express no opinion on the merits of the quote; I just think it's well put):
Manly elegance is obviously a hard standard to reach, and en route we are likely to go astray. Cary Grant once said, "Every man wants to look like Cary Grant. I want to look like Cary Grant." The cinematic version of Grant, the Grant icon, at once combines the virtues of style and manliness, of suavity and physical courage. . . . There are women of my acquaintance, maybe of yours, who claim to find Grant too "femmy," but that bespeaks only a desire for rough trade that they should perhaps examine more closely. If Cary Grant isn't man enough for you, there's something wrong with your picture of manhood.
Kerryisms strikes again:

Slate's increasingly surreal Kerryisms column has this entry today:

Question: What kind of Democrat are you?

[This is the edited version, Slate's view of what Kerry presumably should have said:] Kerry: A thinking Democrat. You can call me an old-fashioned New Deal Democrat. I'm not going to break faith on Social Security. I'm not going to abandon people who are struggling to earn a decent wage.

—Time, Feb. 9, 2004

[This is what Kerry actually said:] A thinking Democrat. You can call me an old-fashioned New Deal Democrat on X or Y. I'm not going to break faith on Social Security. I'm not going to abandon people who are struggling to earn a decent wage. But call me a New Democrat when it comes to creating jobs and being entrepreneurial and understanding the bottom line of business.

The Slate version basically cuts out (as a supposed "caveat" or "curlicue") Kerry's last line -- and in so doing utterly destroys Kerry's point that he's "A thinking Democrat."

What Kerry means by "thinking Democrat" is a Democrat who isn't in lockstep with any particular ideology, but who thinks through each question on its own merits. On Social Security and the interests of working people, he sides with the old-fashioned New Deal Democrats. On the importance of a good climate for business, he sides with New Democrats. I set aside whether that's a good position, or whether it's an accurate summary of Kerry's position. But it's a perfectly sensible response to the question, both as a matter of policy and politics -- in fact, it's probably the politically savviest response.

Slate removes the New Democrat part (and its foreshadowing in "on X or Y," which is in context Kerry's way of indicating that he's an old-fashioned New Deal Democrat only on some things). Amazingly, it leaves in the "thinking Democrat" line -- but now there's nothing to make clear that by "thinking Democrat" Kerry means a Democrat who chooses the best of the various strands of Democratic thought. The Slate edit makes Kerry sound as if he's saying that the only "thinking Democrat" is the "old-fashioned New Deal Democrat," which is nearly the opposite of what Kerry is trying to say.

What is the author of this column thinking? He's not editing out the "caveats" and "curlicues" -- he's editing out the heart of Kerry's message. Surely he doesn't think that any message more complex than "I am a staunch New Dealer" or "I am 100% New Democrat" is inherently too "embellish[ed]." But then what is he trying to do?

The U.N. and Anti-Semitism:

This piece (thanks to InstaPundit for the pointer) strikes me as very persuasive. I don't know the facts well enough to vouch for the accuracy of her remarks, but they seem accurate based on what little I do know -- and if they are accurate, then they're a powerful indictment of the U.N.'s double standards on this.

Are happy people nastier and more judgmental?

The ever-insightful Randall Parker suggests that this may be the case. It is one of his "research projects" to think through what kind of children we will seek to genetically engineer, and what kind of world will then result.

Hiibel and the Fifth Amendment

(another in my series of posts today on the Court's Hiibel decision):

The most interesting debate in Hiibel has to do with the privilege against self-incrimination. Though the text of the Fifth Amendment only bars "compell[ing] [any person] in any criminal case to be a witness against himself," the Court has applied this to pretrial questioning as well as to questioning of witnesses at trial -- not unreasonable, since otherwise the provision could be easily circumvented by forcing people to make statements before trial, and then introducing those statements into evidence against them. And the Court has generally held that the Amendment covers not just forced confessions ("I did it, and I'm glad"), but also forced statements that may indirectly suggest the person's guilt, or even that may lead to the discovery of evidence against him. Moreover, as Justice Stevens points out in his dissent, requiring a person to give his name will often lead to the discovery of evidence against him, especially when the police are asking precisely because they reasonably suspect criminal activity.

Justice Kennedy's majority reasons otherwise: "Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances." In this very case, the opinion points out that Hiibel himself had no "articulated real and appreciable fear that his name would be used to incriminate him, or that it `would furnish a link in the chain of evidence needed to prosecute' him."

Yet it seems to me that if the police ask suspects their names, that's probably because they think that the name will often help uncover evidence of crime. Maybe, as the majority itself suggests, the name "may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder." Or maybe it will make it easier for the police to more effectively question others about the suspect's behavior, even after they let the suspect go. And when the police have stopped a person because they have reasonable suspicion to think he has committed a crime, and the person wouldn't give his name voluntarily, it seems fairly likely -- not certain (because maybe the person is just very concerned about his privacy, as Hiibel might have been), but fairly likely -- that the name is indeed evidence that can be used against the suspect.

What's more, how would the majority's decision play out in practice? The majority acknowledges that "a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense," and in such a case, the Fifth Amendment privilege would apply.

But how would such a case be litigated? Say that the police stop me, ask my name, and I take the Fifth. Do they have the right to arrest me, on the theory that I've violated the compelled identification statute? (Of course, the statute must be read as not punishing the exercise of my constitutional rights.) Or do they lack probable cause to believe this, since for all they know my identity may indeed implicate me in a crime?

Of course, in this situation taking the Fifth would itself be incriminating in one sense: Since only those who think they might be incriminated have the constitutional right to take the Fifth, the police would be practically correct to be extra suspicious of people who assert their Fifth Amendment rights. And yet I assume that the police ought not be allowed to arrest someone simply because the person has asserted his constitutional rights, even if a practical person would find it highly suspicious. (When a person asserts his Fourth Amendment rights and refuses to consent to a police search, most lower courts don't let the police build probable cause based partly on the consent -- the police would have to have probable cause independently of the refusal. Likewise, a person's taking the Fifth may not be argued to the jury as evidence of his guilt.)

To be sure, some Supreme Court cases have upheld requirements that people say various things that include their names -- file tax returns, for instance, identify themselves to other drivers when they're involved in an accident, or identify themselves when they're being booked for a crime at the police station. But those decisions have repeatedly rested on the theory that the identification is needed for non-law-enforcement purposes: collecting taxes, facilitating civil litigation, or keeping track of whom the government is keeping in jail. The purpose of Terry stops, on the other hand, is all about law enforcement.

Now maybe the majority's result is still right. Maybe, as some have suggested, the Fifth Amendment should simply bar the use of compelled statements themselves as evidence, but should let the government use as evidence the material that the government gathers indirectly based on compelled statements (the so-called "fruits" of the statement). This might be more consistent with the text of the Amendment. Or maybe there should be a separate rule for compelled self-identification, which one might say is less likely to offend the principles behind the privilege against self-incrimination, whatever those principles may be (there's a hot debate about that).

But it seems to me that on its own terms, the majority's argument isn't terribly persuasive; Justice Stevens seems to have the better of it.

Hiibel and the Fourth Amendment

(another in my series of posts today on the Court's Hiibel decision).

The Court held that forcing someone to reveal his name doesn't make the stop an unreasonable seizure. The proper test, the Court said (correctly, given the Court's precedents), is that "The reasonableness of a seizure under the Fourth Amendment is determined 'by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate government interests.'" The government interests, the Court said, are strong:

Obtaining a suspect's name in the course of a Terry stop [i.e., a brief stop based on reasonable suspicion] serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.

Curiously, the Court didn't go into detail about the "Fourth Amendment interests" side of the balance; but presumably it concluded that requiring to give one's name isn't a very serious intrusion into privacy.

Justice Stevens didn't reach the Fourth Amendment question. Justices Breyer, Souter, and Ginsburg rested almost entirely on past cases:

Justice White, in a separate concurring opinion [in Terry v. Ohio], set forth further conditions [beyond the majority's requirement that a brief stop be based on reasonable suspicion]. Justice White wrote: "Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation."

About 10 years later, the Court, in Brown v. Texas, 443 U.S. 47 (1979), held that police lacked "any reasonable suspicion" to detain the particular petitioner and require him to identify himself. . . . The Court referred to Justice White's Terry concurrence . . . [, a]nd it said that it "need not decide" [whether an identification requirement was constitutional].

Then, five years later, the Court wrote that an "officer may ask the [Terry] detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond." Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (emphasis added). See also Kolender v. Lawson, 461 U.S. 352, 365 (1983) (Brennan, J., concurring) (Terry suspect "must be free to . . . decline to answer the questions put to him"); Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (stating that allowing officers to stop and question a fleeing person "is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning").

This lengthy history — of concurring opinions, of references, and of clear explicit statements — means that the Court's statement in Berkemer, while technically dicta, is the kind of strong dicta that the legal community typically takes as a statement of the law. And that law has remained undisturbed for more than 20 years.

There is no good reason now to reject this generation-old statement of the law. There are sound reasons rooted in Fifth Amendment considerations for adhering to this Fourth Amendment legal condition circumscribing police authority to stop an individual against his will. [Citing the Stevens dissent; more on the Fifth Amendment issue later. -EV] Administrative considerations also militate against change. Can a State, in addition to requiring a stopped individual to answer "What's your name?" also require an answer to "What's your license number?" or "Where do you live?" Can a police officer, who must know how to make a Terry stop, keep track of the constitutional answers? After all, answers to any of these questions may, or may not, incriminate, depending upon the circumstances. [Again, more on the Fifth Amendment question later. -EV] . . .

The majority presents no evidence that the rule enunciated by Justice White and then by the Berkemer Court, which for nearly a generation has set forth a settled Terry stop condition, has significantly interfered with law enforcement. Nor has the majority presented any other convincing justification for change. I would not begin to erode a clear rule with special exceptions.

Interestingly, even the dissent doesn't squarely argue against the majority's reasoning about the importance of the government interests, or the majority's implied judgment that the intrusion on Fourth Amendment interests isn't very severe. It relies chiefly on concurrences, on one tangential majority dictum (from Wardlow) and one square statement in a majority opinion (from Berkemer) that is nonetheless still dictum — which is to say, a statement that wasn't necessary to the decision of the past case, and thus isn't binding precedent.

It seems to me that the majority's Fourth Amendment holding is probably sound, though reasonable minds can certainly differ on this. But in any event, even if there are very strong arguments against it, the dissent doesn't really provide them.

Judge Calabresi's violation of Code of Judicial Conduct?

The Curmudgeonly Clerk points this out, and it seems to me that he's right. Here's what the New York Sun reports about Judge Calabresi's comments to the American Constitution Society (the liberal counterpart to the Federalist Society):

The 71-year-old judge declared that members of the public should, without regard to their political views, expel Mr. Bush from office in order to cleanse the democratic system.

"That's got nothing to do with the politics of it. It's got to do with the structural reassertion of democracy," Judge Calabresi said.

Here's what Code of Judicial Conduct Canon 7 says:

A. A judge should not:

(1) act as a leader or hold any office in a political organization;

(2) make speeches for a political organization or candidate or publicly endorse or oppose a candidate for public office;

(3) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other functions.

B. A judge should resign the judicial office when the judge becomes a candidate either in a primary or in a general election for any office.

C. A judge should not engage in any other political activity; provided, however, this should not prevent a judge from engaging in the activities described in Canon 4.

Seems to me that if Judge Calabresi's remarks were accurately paraphrased — a big if, I realize — they were a judge's "publicly . . . oppos[ing] a candidate for public office." Calling on "members of the public" to "expel" an officeholder who's up for reelection certainly sounds like publicly opposing a candidate for public office. (Canon 4 does let a judge say various things related to "the law, the legal system, and the administration of justice," but as I read Canon 7, the prohibitions in 7(A) and 7(B) are absolutely, and only the prohibition in 7(C) is subject to the Canon 4 exception.)

It's possible (though far from certain) that, given the Supreme Court's decision in Republican Party v. White (2002), that Judge Calabresi can claim his speech is protected by the First Amendment, notwithstanding Canon 7. Nonetheless, even if Canon 7 can't be legally binding for that reason, it is (as I understand it) a pretty authoritative ethical judgment about how judges should behave, and thus an important ethical constraint. It seems that the comments at the American Constitution Society meeting transgressed that constraint.

Note, though, that this of course assumes that Judge Calabresi was correctly paraphrased. Subtle differences in his precise words might well make for substantial differences in the legal analysis. If anyone has a tape or transcript of Judge Calabresi's remarks, or can even pass along his personal recollection, I'd love to hear about it.

(This, of course, is an entirely separate criticism from the one I mentioned here.)

New UCLA Law dean:

I'm pleased to say that Michael H. Schill, a law professor at NYU (where he specializes in housing law and policy), has been named dean here at UCLA Law School. I don't know him much, but all I've heard about him suggests that he'll do an excellent job.

What Hiibel decides and what it doesn't decide:

The question in today's Hiibel v. Sixth Judicial District Court decision from the Supreme Court is: Once the police stop a person based on reasonable suspicion that he may be involved in criminal activity, may the police demand that he identify himself (backed by the threat of legal punishment should he refuse, or should he lie)?

The Court's answer: "yes," at least so long as (A) the demand is "reasonably related to the circumstances justifying the stop" (which will almost always be so), and (B) there is no "substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense" (it's not clear how often this will be so). If condition (A) isn't satisfied, then the person's Fourth Amendment to be free from unreasonable seizures would be violated. If condition (B) isn't satisfied, then the person's Fifth Amendment rights to be free from compulsion to incriminate himself might possibly be violated.

Here are the questions not involved here: (1) May the police stop someone without any suspicion, but just based on an articulable hunch, or a random stop policy, to demand identification? (2) May the police require that the person present some written identification? (3) May the police require identification when the person is driving, or when the person is entering a public building, or in similar contexts? (4) May the police simply ask a person, without the threat of legal sanction, who he is? The answer to #4 is "yes"; the answer to #3 is generally yes, though it depends on the context; the answers to #1 and #2 are still unknown. (UPDATE: Let me clarify briefly my point as to #1 -- as reader Duncan Frissell points out, Brown v. Texas (1979) struck down such random stops when done without any "practice embodying neutral criteria," and when done as part of normal policing. See also Delaware v. Prouse (1979). What is unknown is whether they might be permissible, under the Court's "special needs" cases, when there are some neutral criteria, or when the place is a special location, such as a bus terminal or the environs of some location where security is especially important. There's enough uncertainty in the "special needs" caselaw [which includes cases such as the drunk driving checkpoints] that it's hard to be sure what the result would be there.)

"Like convicted felon and former Attorney General John Mitchell,

Judge Guido Calabresi was appointed by a President who was eventually involved in a scandal that nearly led to the President's removal from office by the Senate. I am not suggesting for a moment that this person is John Mitchell, or is a felon who helped obstruct justice. I want to be clear on that, but it is a situation which is extremely unusual."

Sounds like such a hypothetical statement, if said seriously, would be logically senseless, and an unjustified attempt to smear Judge Calabresi? You bet. And yet I find it hard to distinguish this from what Judge Calabresi seemingly said at a conference of the liberal American Constitution Society (thanks to How Appealing for the pointer):

A prominent federal judge has told a conference of liberal lawyers that President Bush's rise to power was similar to the accession of dictators such as Mussolini and Hitler.

"In a way that occurred before but is rare in the United States . . . somebody came to power as a result of the illegitimate acts of a legitimate institution that had the right to put somebody in power. That is what the Supreme Court did in Bush versus Gore. It put somebody in power," said Guido Calabresi, a judge on the 2nd Circuit Court of Appeals, which sits in Manhattan.

"The reason I emphasize that is because that is exactly what happened when Mussolini was put in by the king of Italy," Judge Calabresi continued, as the allusion drew audible gasps from some in the luncheon crowd Saturday at the annual convention of the American Constitution Society.

"The king of Italy had the right to put Mussolini in, though he had not won an election, and make him prime minister. That is what happened when Hindenburg put Hitler in. I am not suggesting for a moment that Bush is Hitler. I want to be clear on that, but it is a situation which is extremely unusual," the judge said.

Judge Calabresi, a former dean of Yale Law School, said Mr. Bush has asserted the full prerogatives of his office, despite his lack of a compelling electoral mandate from the public.

"When somebody has come in that way, they sometimes have tried not to exercise much power. In this case, like Mussolini, he has exercised extraordinary power. He has exercised power, claimed power for himself; that has not occurred since Franklin Roosevelt who, after all, was elected big and who did some of the same things with respect to assertions of power in times of crisis that this president is doing," he said. . . .

It seems to me rather odd to compare someone to Hitler or Mussolini based on how they were put into power. The loathing attached to the names Hitler and Mussolini, after all, has nothing to do with the means by which they were installed into office. (It might have a little to do in both cases with the thuggery practiced by their followers that helped them get installed into office — but on that score they are hardly comparable with George W. Bush.)

To analogize someone to Hitler and Mussolini on this score is rather like making the hypothetical statement that I quoted at the start of the post. The premises of the analogy may be literally true, but the analogy is so irrelevant that it seems more effective as a smear than as a logical argument.

But beyond this, I'm not even sure that Judge Calabresi's analogy (as opposed to the one in the hypothetical statement) would be literally true. The German President was supposed to select a Chancellor, and the Italian King was supposed to select a Prime Minister, without regard to whether they had won election. Hitler had lost the Presidential election to Hindenburg, but Hitler's Nazi Party had won a plurality of the seats in the Reichstag, so there was nothing procedurally or legally "illegitimate" about Hindenburg's selecting Hitler. In parliamentary systems, the head of state is often called on to make decisions like that. (Churchill, for instance, was appointed Prime Minister without even any intervening popular election; nothing illegitimate about that, either.)

Mussolini's appointment was more closely tied to the military threat that he posed to the government. But even so, I don't think the King's decision to appoint Mussolini prime minister was procedurally or legally illegitimate from the King's perspective (it was illegitimate for Mussolini to act as he did, but Bush surely didn't use paramilitary groups to win Bush v. Gore).

Now perhaps I'm mistaken on this; if so, I'd be glad if people corrected me on it. (And I should stress that Judge Calabresi, who was born in Mussolini-era Italy, doubtless knows much more than I do about Italian history.) But if I'm right, then the supposed problem with Bush — that he was put into place by an illegitimate Supreme Court decision — doesn't even apply to Hitler and Mussolini.

Hitler's and Mussolini's faults did not include Bush's supposed fault. Bush's faults do not include Hitler's and Mussolini's faults. The supposed analogy that Judge Calabresi is making thus seems to have no basis at all. (Note, incidentally, that Judge Calabresi explicitly stressed that he wasn't criticizing President Bush's actions in office: "I'm a judge and so I'm not allowed to talk politics. So I'm not going to talk about some of the issues that were mentioned or what some have said is the extraordinary record of incompetence of this administration.")

So what possible legitimate role does the analogy to Hitler and Mussolini have here?

UPDATE: See also Instapundit's take and Andrew Sullivan's.

Supreme Court lets police demand that person identify himself,

at least if they had reasonable suspicion to stop him. That's what I infer from SCOTUSBlog's report that the Supreme Court affirmed the Nevada Supreme Court's decision in the Hiibel case. Will read it as soon as it's available, and blog more about it.

UPDATE: Looks like the 5 conservative / 4 liberal split; Justice Kennedy, joined by Chief Justice Rehnquist and Justices O'Connor, Scalia, and Thomas is writing for the majority.

FURTHER UPDATE: Justice Stevens dissents solely on Fifth Amendment privilege against self-incrimination grounds, with an interesting argument that I hope to blog about shortly.

Justice Breyer, joined by Justices Souter and Ginsburg, dissent on Fourth Amendment grounds, though generally appealing to one precedent — dictum (which is to say a statement that wasn't necessary to the past opinion's holding), albeit considered dictum, in a past decision — rather than Fourth Amendment text, policy, or broader precedent-based rules. Breyer's opinion also argues that the majority's Fifth Amendment holding may prove unadministrable, but doesn't make any broader defenses of the right not to identify oneself.

That's rather odd, since it seems to me that such a broader defense would have made the opinion considerably more rhetorically effective, to the public, to state courts interpreting state search and seizure provisions, and to future Justices who might be considering whether to adhere to the majority's position, or even to extend it. But perhaps the dissenting Justices thought their time was better spent elsewhere. (It's also possible that they didn't have firm views on the Fourth Amendment first principles involved here, and really were relying solely on the precedent, but given that the precedent is so weak — the dissent acknowledges that it was dictum, and even a judge who thinks precedent should nearly always be adhered to wouldn't feel actually bound by such dictum — I assume that the dissenters really did differ with the majority on the principle as well as the precedent.)

Sunday, June 20, 2004

The Situation in the Muslim World:

This essay, attributed to Israeli scientist Haim Harari, is well worth reading. For example, Harari writes:

Is the solution a democratic Arab world? If by democracy we mean free elections but also free press, free speech, a functioning judicial system, civil liberties, equality to women, free international travel, exposure to international media and ideas, laws against racial incitement and against defamation, and avoidance of lawless behavior regarding hospitals, places of worship and children, then yes, democracy is the solution. If democracy is just free elections, it is likely that the most fanatic regime will be elected, the one whose incitement and fabrications are the most inflammatory. We have seen it already in Algeria and, to a certain extent, in Turkey.

Noisy Hotel Rooms:

The more I travel, the more I am amazed at how little hotel design seems to take into account the obvious goal of helping guests get a good night's sleep by keeping noise levels down. Forget soundproof windows; how about just designing room doors so they don't slam shut so loudly as to wake guests in the next room?

Saturday, June 19, 2004

Porn movies edited to include others' images without their permission:

In response to my post yesterday about software that can easily edit movies (including porn movies) to include images of celebrities or the editor's acquaintances, several people argued that what people do in their own bedrooms should be none of the government's business. Whether this is still so when it uses others' images, in a pornographic context, is an interesting question; one can certainly make arguments on both sides.

But let me add a supplemental question, which I'm also going to include in my textbook supplement (I love being able to beta test my problems using the blog):

If you don't think that the law [banning distribution of the software] should be upheld, what about laws that (1) prohibit the use of the software to make such pornographic movies without the photographed person's consent, (2) prohibit the noncommercial distribution of the movies, whether to a small group of friends or on the Internet, or (3) prohibit the commercial distribituion of the movies? (Don't limit yourself to considering whether such laws are constitutional under existing obscenity doctrine. Consider also whether you think there should be an obscenity exception at all, and whether you think it should be broader or narrower than it now is.)

The people who support people's rights to do what they please in their own bedrooms will almost certainly oppose law 1 as well as the law banning distribution of the software. But what about laws 2 and 3? If you believe that there should be no obscenity exception to the First Amendment (set aside the child pornography exception, which generally applies to movies made using real children), would you likewise reject laws 2 and 3? Or do you think that laws 2 and 3 are constitutional, because the law ought to protect people from having their images used this way without their authorization?

Assume that the movies are properly labeled to make clear that the people who are depicted did not agree to the depiction — that eliminates any possible defamation claim ("I should get damages because the movie falsely suggests that I've agreed to star in a pornographic movie").

Control Room: Our Evening at the Movies (no spoilers):

We saw Control Room last night, overall I was underwhelmed. If you read the better blogs, you won't learn much from this film.

I did feel that the movie presented the so-called "American point of view" with relative fairness. The American communications officer spoke frequently, was portrayed sympathetically, and made many of the better points in defense of the war. That being said, I had the following complaints:

1. There was no talk of the links between Al Jazeera and the government of Qatar. Al Jazeera journalists are presented as independent mavericks, beholden to no one.

2. There was very little shown on the crimes of Saddam. It is discussed that the Iraqi people are glad he is gone. But there is nothing on torture, the war with Iran, his use of WMD, or mass graves, for instance.

3. If anything, the movie made CNN and other Western media look less constrained by the U.S. military than they in fact are.

But most of all, the movie bored me. The best parts are the bits from Rumsfeld, but I won't offer spoilers on that.

Friday, June 18, 2004

Federal Hot Guy Commission:

Matt Yglesias figures it out for us:

Eugene Volokh wonders why men are so ugly. Andrew Sullivan responds:

Much of this is true -- but only for straight men. And that reveals the real source of male slovenliness: women. If women weren't so damn forgiving of slobbiness, if they weren't prepared to look for the diamond buried in the rough of a man's beer-belly, men might have to shape up a little. The only reason gay men are - on the whole - better turned out than straight men is because they have to appeal to other shallow, beauty-obsessed males to get laid, find a mate, etc. The corollary, of course, are lesbians. Now there are many glamorous lesbiterians, but even the most enthusiastic Sapphic-lover will have to concede that many are not exactly, shall we say, stylish. The reason? They don't have to be to attract other women; and since women find monogamy easier, they also slide into the I'm-married-so-what-the-hell-have-another-pretzel syndrome. When straight women really do insist on only dating hot guys, men will shape up. Until then, it's hopeless.

Awesome. Now personally, I'm very much against women raising their standards.

Nevertheless, since it's being discussed by A-list bloggers it's important that we understand this situation correctly. We have a serious collective action problem here. Free marketers like Sullivan and Volokh are too blinded by ideology to see the compelling need for government intervention. A temporary regulatory solution could help us resolve this mess. For the next five years, say, straight women must "insist on only dating hot guys" (we'll have to empanel a "Federal Hot Guy Commission" consisting of "shallow, beauty-obsessed [gay] males" to rank everyone) and see if the hot guy supply increases in response. After five years you can drop the rule and things should have reached a new, better, equilibrium.

The logic is impeccable.

Guess who'll be in porn movies in a decade or two:

Here's a draft of a problem that I'll be including in the Obscenity chapter of my First Amendment textbook.

Within about ten years, there will probably be software that can merge people's photographs and voices with movies that depict someone else. This is of course often already done manually with photographs; but a sophisticated computer program can do it automatically and seamlessly, for a whole movie. And it can deal with multiple scenes where the person is shown from different angles doing different things.

The person running the program would give it a file containing a movie, and a few files containing a person's photographs and possibly voice recordings. He would also tell the program which character is to be altered to fit these photos and voice recordings. The program would replace all the character's appearances with the new person, and would try to adjust the character's spoken words to match the new person's voice. (This isn't an easy task; even finding all the images of a particular character in a movie is nontrivial, but imagine that the program contains the image recognition software needed to do that.)

Where necessary, the program would make guesses, for instance about how the photographed person's facial features or hair would move, or about what the unphotographed parts of the person's body look like. It would also let the user provide input about these unknown items, and may let the user alter the person's appearance in other ways.

This can be a great technology for various video applications. For instance, if a filmmaker uses a stuntman for a certain scene, he'd be able to easily replace the stuntman's image with the star's in the finished product. Parodists and artists will also be able to merge politicians' or celebrities' faces and voices into existing footage.

But, practically, the most common use of this would probably be for pornography. Consumers would buy the program; get ordinary, nonpornographic photographs of celebrities or of acquaintances; merge the photograph with a pornographic movie; and then be able to watch pornography that "stars" whomever it is they lust after. Some such merged movies might be sold to others, but many will be just made at home, to fit the user's own personal preferences.

Naturally, many people, famous or not, will be quite unhappy knowing that they are depicted without their permission in others' home sex movies. Imagine that Congress therefore decides to prohibit the distribution and use of the computer program that allows such movies to be made. How would such a law be different for First Amendment purposes from normal obscenity legislation? Do you think the law should be upheld (even if that means changing existing First Amendment law), and, if so, on what grounds?

I'm not looking for The First Amendment Answer here -- the purpose of the problem is to get students to come up with arguments, not to provide the right answer. But I thought some readers might find the problem interesting, especially because I'm certain that such software will indeed be around soon (ten years is just a guess, but it's certainly not too far off, especially since there'd be a huge market for it).

It'll be virtually impossible to do anything about it as a practical matter, I suspect. Nor am I taking a stand on whether the government ought to try to do anything about it. Still, if I were the sort of person whom either acquaintances or strangers would like to merge into a porn movie -- even one they'd only watch by themselves -- I wouldn't be at all pleased by this technology. Even if they watch the movie in the privacy of their own homes, there'd still be something mighty icky about them watching pictures that show me having sex. Again, I'm not sure whether it's worth trying to regulate this, or whether it's in any event practically possible to do so. But it's a troubling scenario, it seems to me.

Spicy fried anchovies:

I was having lunch yesterday at an Indonesian market / fast-food joint in Los Angeles (with, among others, Hanah Metchis, Brian Doherty, and Ted Balaker), and I bought a bag of spicy fried anchovies. Each item was literally one anchovy, spiced, fried, and covered with sesame seeds. They were actually quite tasty, more spicy and sweet than salty, so I'm glad I got them.

But the real reason I'm glad I got them was that then I could go up to people I knew with the bag, and say "Hey, would you like a spicy fried anchovy?" How often does one get to do that?

9th Circuit Order in US v. OCBC: Today, the Ninth Circuit has issued the following order in the medical cannabis case of U.S. v. Oakland Cannabis Buyers Cooperative case that I argued last September:

This matter was argued September 17, 2003. This court subsequently issued its decision in Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), petition for cert. filed, (U.S. April 20, 2004) (No. 03-1454), on December 16, 2003. We vacated submission and ordered supplemental briefing. This case was resubmitted as of April 30, 2004.

The issues in Raich may control the outcome in this case. Accordingly, this case is remanded for the district court to reconsider after the Supreme Court has completed its action in Raich.

IT IS SO ORDERED
For those not keeping track, the Solicitor General has asked the Supreme Court to review the Ninth Circuit decision in Raich v. Ashcroft (the case I argued in October) that ruled that the application of the Controlled Substance Act to the activities of Angel Raich and Diane Monson with respect to their possession, cultivation and noncommercial acquisition of cannabis for medical purpose exceeded the power of Congress under the Commerce Clause (or could have exceeded its power if, after trial, the facts are found to be as we allege).

The government's petition in Raich is on the June 24th calendar and we expect to hear a decision by June 28th. If review is granted we should argue the case this fall. If review is denied, then Judge Charles Breyer is now tasked by the Ninth Circuit with applying the law of Raich to the facts of OCBC. I suppose that, by raising the stakes, today's order might make it somewhat more likely that the Court will review Raich, though others would know better than I whether this would be the case.

Of course, one should not make too much of this decision not to decide by the Ninth Circuit. But it does seem that the panel certainly did not rule out the possibility that the principles of Raich do indeed apply to OCBC--notwithstanding the factual differences betweeen the two cases--and we might expect them to be receptive to a ruling favorable to OCBC by Judge Breyer, who to date has consistently ruled against us. But first, we await with 'bated breath the decision of the Justices of the Supreme Court.
The trouble with Bushims, Kerryisms, and Whoppers of the Week:

I've often criticized Slate's Bushisms and Kerryisms; and, as I suggest in the post below, Slate's Whopper of the Week column also deserves criticism, at least this week.

Part of the problem, I think, is precisely that these are regular columns, with constant plots -- not just constant subject matters (the war, the economy, or whatever else), but constant points (Bush misspoke, Kerry spoke in too complex a way, someone lied). This means that their authors are constantly looking for something that fits the plot.

That's not a good recipe for sound, thoughtful journalism. First, it means you're approaching events with a prejudice -- "here's my stock plot, and I expect facts to fit it." Now all of us have some such prejudices, simply from our experience. But good journalists tend to fight against their prejudices, both to avoid cliche and to avoid letting their prejudices blind them to reality (such as the possibility that when Bush says he's honored to shake the hands) of people whose hands had been cut off, he means exactly what he's saying, and it makes perfect logical, moral, and political sense). The Slate columns embrace the prejudices -- and, unsurprisingly, do get blinded by them.

Second, these stock plots tend to lead writers to include things that seem almost fitting, though not quite. If someone said something that seems to diverge from his earlier statements, a journalist without a stock plot can write a good piece about the subject. But if the journalist is looking for a Whopper of the Week, it's tempting to fit the new story within the Whopper format -- even though it doesn't literally fit the category's ostensible boundaries (unambiguous misstatements). And once one does that, one isn't likely to explain how this incident actually diverges from the stock plot (since that would be an admission that it really isn't a Whopper of the Week, a Kerryism, or whatever else) -- and the result is inaccuracy, and inaccuracy that may well mislead readers.

The best journalism, I think, comes when journalists look at the facts and then come up with their evaluation. The Slate columns are evaluations in search of suitable facts. It's not surprising that this often leads to the columns being incorrect evaluations.

A blast from the past:

From a Washington Times news story:

Talking about education yesterday, Mr. Kerry also told the largely black crowd at the day care center that there are more blacks in prison than in college.

"That's unacceptable," he said. "But it's not their fault."

Rather than the inmates, the former Boston prosecutor blamed poverty, poor schools, a dearth of after-school programs and "all of us as adults not doing what we need to do."

Yup, he was only a lad, you really couldn't blame him, only a lad, society made him, only a lad, he really couldn't help it, only a lad, he's underprivileged and abused, perhaps a little bit confused.

Do we really want a return to this sort of attitude towards criminals? Is it really good for the black community to have black criminals hear that "it's not their fault"?

I have no doubt that adult failings (especially parents' failings) and poor schools do help contribute to crime. But you can't cut crime, or increase college attendance, without making kids (and adults) realize that their actions are their fault — that they have to take responsibility for what they do and don't do.

Slate's Supposed "Whopper" of the Week: Slate's Whopper of the Week column — intended to expose supposed "unambiguous falsehood[s]" by various people — had the following yesterday, under the headline "Oh, that letter to Congress linking Saddam and 9/11 ...":

This administration never said that the 9/11 attacks were orchestrated between Saddam and al Qaeda.

President Bush, in an exchange with reporters, June 17, 2004

[A]cting pursuant to the Constitution and [the Authorization for Use of Military Force Against Iraq Resolution of 2002] is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.

President Bush, in a letter to Congress outlining the legal justification for commencing war against Iraq, March 18, 2003

Eric Soskin at Ex Parte demonstrates why the Slate writer got it badly wrong here.

UPDATE: Reader Alex Sudnik passes along the following (note that this will make the most sense if you've read Soskin's post, or are otherwise familiar with Soskin's criticism):

Section 3(b) of the Iraq Resolution [which requires the finding that an attack on Iraq would be consistent with the war on the 9/11 planners -EV] was inserted by Congress because some members (mostly Democrats) were concerned that invading Iraq would undermine our efforts to combat terrorism in Afghanistan and elsewhere around the world. So Dick Gephart (who, as Minority Leader, was negotiating with the White House on the wording of the resolution) added this provision to require the President, upon invading Iraq, to certify to Congress that the invasion would not undermine those other efforts. Hence, the language in the certification that the invasion is "consistent with continuing to take necessary actions" in the war on terror. Indeed, Dick Gephart said exactly this at the signing ceremony:
"Over the past several days, I have solicited views from all the members of my caucus and have negotiated with the administration to secure a number of important improvements that reflect these views. These improvements include: support for and prioritization of U.S. diplomatic efforts at the United Nations [Section 2 of the Iraq Resolution]; limitations on the scope of the authorization [Section 3(a)(2)]; presidential determinations to Congress before our Armed Forces may be used against Iraq. These include assurances by the President that he has exhausted diplomatic means to address this threat [Section 3(b)(1)], and that any military action against Iraq will not undermine our ongoing efforts in the war against terrorism [Section 3(b)(2)]".
. . .

Here also is the relevant text from the Report that accompanied the Presidential determination:

4. Use of Force Against Iraq is Consistent with the War on Terror

In Public Law 107-243, Congress made a number of findings concerning Iraq's support for international terrorism. Among other things, Congress determined that:

* Members of al Qaida, an organization bearing responsibility for attacks on the United States, its citizens, and interests, including the attacks that occurred on September 11, 2001, are known to be in Iraq.

* Iraq continues to aid and harbor other international terrorist organizations, including organizations that threaten the lives and safety of United States citizens.

* It is in the national security interests of the United States and in furtherance of the war on terrorism that all relevant United Nations Security Council resolutions be enforced, including through the use of force if necessary.

In addition, the Secretary of State's address to the UN on February 5, 2003 revealed a terrorist training area in northeastern Iraq with ties to Iraqi intelligence and activities of al Qaida affiliates in Baghdad. Public reports indicate that Iraq is currently harboring senior members of a terrorist network led by Abu Musab al-Zarqawi, a close al Qaida associate. In addition, Iraq has provided training in document forgery and explosives to al Qaida. Other terrorist groups have been supported by Iraq over past years.

Iraq has a long history of supporting terrorism, and continues to be a safe haven, transit point, and operational node for groups and individuals who direct violence against the United States and our allies. These actions violate Iraq's obligations under the UNSCR 687 cease-fire not to commit or support any act of international terrorism or allow others who commit such acts to operate in Iraqi territory. Iraq has also failed to comply with its ceasefire obligations to disarm and submit to international inspections to verify compliance. In light of these Iraqi activities, the use of force by the United States and other countries against the current Iraqi regime is fully consistent with — indeed, it is an integral part of — the war against international terrorists and terrorist organizations.

Both because Iraq harbors terrorists and because Iraq could share weapons of mass destruction with terrorists who seek them for use against the United States, the use of force to bring Iraq into compliance with its obligations under UNSC resolutions would be a significant contribution to the war on terrorists of global reach. A change in the current Iraqi regime would eliminate an important source of support for international terrorist activities. It would likely also assist efforts to disrupt terrorist networks and capture terrorists around the globe. United States Government personnel operating in Iraq may discover information through Iraqi government documents and interviews with detained Iraqi officials that would identify individuals currently in the United States and abroad who are linked to terrorist organizations.

The use of force against Iraq will directly advance the war on terror, and will be consistent with continuing efforts against international terrorists residing and operating elsewhere in the world. The U.S. armed forces remain engaged in key areas around the world in the prosecution of the war on terrorism. The necessary preparations for and conduct of military operations in Iraq have not diminished the resolve, capability, or activities of the United States to pursue international terrorists to protect our homeland. Nor will the use of military force against Iraq distract civilian departments and agencies of the United States Government from continuing aggressive efforts in combating terrorism, or divert resources from the overall world-wide counterterrorism effort. Current counter-terrorism investigations and activities will continue during any military conflict, and winning the war on terrorism will remain the top priority for our Government.

Indeed, the United States has made significant progress on other fronts in the war on terror even while Iraq and its threat to the United States and other countries have been a focus of concern. Since November 2002, when deployments of forces to the Gulf were substantially increased, the United States, in cooperation with our allies, has arrested or captured several terrorists and frustrated several terrorist plots. For example, on March 1, 2003, Khalid Shaikh Mohammed was captured in Rawalpindi, Pakistan by Pakistani authorities, with U.S. cooperation. The capture of Sheikh Mohammed, the al Qaida "mastermind" of the September 11th attacks and Usama Bin Laden's senior terrorist attack planner, is a severe blow to al Qaida that will destabilize the terrorist network worldwide. This and other successes make clear that the United States Government remains focused on the war on terror, and that use of force in Iraq is fully consistent with continuing to take necessary actions against terrorists and terrorist organizations.

Thursday, June 17, 2004

Huh?

Right after posting about Spinsanity's Kerryisms catch, I saw today's Kerryism. Kerry was asked:

Is the support for Roe v. Wade a critical point, a litmus test, for any court appointee you would make?

Kerry answered:

To the Supreme Court of the United States, yes.

The Kerryism edited version, which I assume is supposed to be equivalent to Kerryism's original point but better put (remember their original charter, which is "translat[ing]" Kerry's words "into plain English," by removing "caveats and pointless embellishments") is:

Yes.

But that's not what Kerry wanted to say! It would be a stupid thing to say, both from a policy perspective (even if he firmly supports constitutional abortion rights, why should he turn it into a litmus test for district court judges?) and from a political perspective (if he does set up such a broad litmus test even for district court judges, he'd look like a fanatic).

What exactly is the point of the Kerryisms? At first, I thought -- based on the column's introductory installment -- the Kerryisms were meant to show that Kerry throws in lots of unnecessary verbiage. But here, this was a necessary proviso.

Another possibility is that "Kerryisms" has evolved into an attempt to show simply that Kerry uses a lot of qualifiers, instead of giving very simple answers. But often, as in this case, the right answer isn't simple. It's actually not terribly complex, but it's not one-word simple. Is it really good to fault a politician for refusing to oversimplify? Should we want supposedly smart media outlets mocking politicians for trying to be precise?

The only other option that I see is that the column has descended into self-parody. ("Question: What's the ratio of a circle's circumference to the diameter? Kerry's real answer: 3.1415926. Our answer, shorn of caveats and pointless embellishments: 3.") But surely it can't be intentional self-parody. So I ask again, what's the point?

Kerryisms -- translating truth into falsehood:

Slate's Kerryisms originally billed itself as "translat[ing]" Kerry's quotes "into plain English" by stripping them of "caveats and pointless embellishments." Now, if Spinsanity has done its factual research right, Kerryisms is translating Kerry's quotes from truth into falsehood:

Kerry's original statement, from a February 9 broadcast of National Public Radio's "All Things Considered," was the following:

I am the only United States Senator who has been elected four times, currently serving in the Senate, who has voluntarily refused to ever take, in any of my races for the Senate, one dime of political action committee special interest money. The only checks I took were from individual Americans. Now did some individual lobbyists contribute? The answer is, yes, they did.

Will Saletan, the author of "Kerryisms," edited it into the following form (footnotes representing excised text appear in brackets):

I am the only United States Senator[1][2] who has voluntarily refused to ever take in any of my races[3] one dime of[4] special interest money. The only checks I took were from individual Americans.[5]

By removing "political action committee" with footnote 4 and the clarification about accepting donations from individual lobbyists in footnote 5, Saletan makes Kerry's precise claim much less clear. But, more importantly, the removal of the text in footnotes 1-3 actually makes the statement untrue.

Kerry is apparently the only senator to be elected in all four of his races without accepting funds from political action committees (a claim he has made numerous times). But he is not the only senator "who has voluntarily refused to ever take in any of my races one dime of special interest money," as the edited version suggests, even if "special interest money" is read to refer specifically to PAC funds (a clarification Saletan excised). . . .

Go to Spinsanity for more. This is yet further evidence, I think, of how misguided Slate's Kerryisms feature has been. As Spinsanity puts it, "Boring as it may sometimes be, accurate political claims often require specifics." Some caveats and even some things that might seem like "embellishments" aren't "pointless" -- they're necessary, at least if one cares about being truthful.

Race discrimination in Australia:

Check out this article:

A South Australian man with borderline intellectual capacity who robbed an elderly couple in the town of Port Pirie had his jail sentence reduced yesterday on the grounds of being an Aborigine.

The South Australian Court of Criminal Appeal reduced Darren Clarke's non-parole period from 23 months to 17 months and cut his jail sentence by eight months to two years and three months because of his race. The judges found that while being an Aborigine on its own could not be used as a mitigating circumstance, it could be relevant in sentencing.

"It is to be expected that in many cases the Aboriginality of an offender will be a relevant and important factor in the sentencing process," said Justices Ted Mullighan, Margaret Nyland and Timothy Anderson.

"Many Aboriginal people are marginalised by society and lack opportunities that are available to others. For many, realisation of legitimate expectations is unlikely. In many cases there is an inability to fit in with the non-Aboriginal community, which contributes to isolation and dissatisfaction." . . .

Seems to me that a legal system that doesn't treat members of a group — whether a racial group, cultural group, or some other group — as fully responsible for their actions isn't likely to be able to treat members of that group as equal to others in other respects. You can't have it both ways: You can't be equal when you do right, but coddled when you do wrong.

Also, in America, a disproportionate share of crime is intra-racial: Blacks disproportionately victimize blacks, whites disproportionately victimize whites (partly because that's whom they live around). I suspect that's also true in Australia — which means that giving special race-based benefits to Aboriginal criminals means imposing extra burdens on their mostly Aboriginal future victims.

Thanks to Zev Sero for the pointer.

More on why men don't try hard to change themselves:

A couple of readers suggested that men might not invest much effort into trying to make themselves sexier because women don't want men who are trying that hard to do that. Effortless sexiness is the sexiest of them all -- and the self-consciousness needed for self-improvement is a turn-off.

My former student Geoffrey Murry went into detail on this, from the Queer Eye viewpoint:

As a man who is intimately concerned with what makes a man sexy, I can say

that your friend Marilyn got it only partially right. Yes, boorish manners and a bad shirt can completely remove a man from the running. Yes, attention to the civilities of the day can give even the most aesthetically challenged man a shot at scoring a mate. . . .

[But] I find it is often a man's resoluteness in the face of what I shall call here adversity that makes him sexy. It is his adamantine surety of place as he strides into a room that makes him noticed. Were he to be engaged in the

constant questioning of himself that Marilyn suggests, I reckon it might be more difficult for him to pull this off.

As an example, I offer what an observer of gay male culture might call the fetishization of the straight man. It is not that he, the straight man, is so much more attractive or well dressed than a gay man. Quite often the

opposite is true, with the average gay man perhaps being better groomed and tailored than the average straight man. Rather it is the sheer *effortlessness* with which an attractive straight man can achieve his attractiveness that makes him sexy; his insouciance wins the day.

Gay men simply try too hard, often attempting to look perfect, which always fails and leaves him looking simply . . . false, stilted, fabricated. The straight man (the metrosexual and Marilyn's dream men aside) rarely goes

to this length, and it is the imperfection in his appearance that gives it the veracity of the virile.

"The veracity of the virile" -- well put! More: "[I]t is self-confidence that yields sex appeal, not constant self-awareness and adjustment."

Very interesting -- I hadn't thought of it this way; I suspect that many women's perspective, conscious or not, is much like the gay man's perspective that Geoffrey describes.

Of course, this means that one needs to adjust oneself so successfully that it looks like one isn't trying to adjust oneself at all. The same is probably true for women, at least in some measure: The best makeup is the makeup that's so good that it looks like you aren't wearing any makeup.

But naturally this sort of self-improvement is much harder than the self-improvement Marilyn originally wrote me about -- and the self-improvement she described might yield less payoff than one might at first think. So maybe the "I'll just be me" slobs she describes are (sometimes) being more rational than we gave them credit for being.

Wednesday, June 16, 2004

Pledge break:

Some blogs ask their readers for money to help operate the blog. That's quite understandable, but we fortunately don't need that -- the real cost of running the blog is time, and that's generously subsidized by various universities and state taxpayers.

We're in it for the eyeballs. (Yumm, eyeballs.) So if you like the blog, just let your friends know about it -- perhaps take a blog post you really like, pass it along (together with its URL) to people who you think would enjoy it, and tell them that there's a lot more where that came from. Or not: We're happy with just your eyeballs, too.

Note about the poll on literal belief in Bible stories:

[THERE WAS A SERIOUS ERROR IN THESE SENTENCES]: [[A reader] points out that the ABC News PrimeTime poll I cited a few days ago — which seems to show that 60% of people believe the literal truth of the Biblical flood story, creation story, and Exodus story — had the fieldwork conducted by ICR, or the Institution for Creation Research. It might be that this skewed upwards the results of the poll, though it's impossible to know for sure.] CORRECTION, with many thanks to reader Corey Mason: ABC News says that field work was done by ICR-International Communications Research of Media, Pa., and I have no reason to doubt this group's objectivity. My apologies for not checking the other reader's original report.

Other polls show that 40-45% of respondents believe in the literal truth of the Bible (see, for instance, the Virginia Commonwealth University poll, right below the ABC News poll), rather than the 60% reported in the ABC News poll, but they ask somewhat different questions. So, as usual with polls, take it all with a grain of salt.

Several people pointed out that the options in the ABC News / ICR poll didn't cover all the possible views. The question was "I'm going to ask about a few stories in the Bible. [Story described here.] Do you think that's literally true, meaning it happened that way word-for-word; or do you think it's meant as a lesson, but not to be taken literally?", and this leaves the possibility that it didn't happen word-for-word, but it was meant to be taken literally (presumably because it was written by men, since God wouldn't mean people to take literally something that wasn't literally true).

But I doubt that this would much drive up the "happened that way word-for-word" responses: If you as a respondent think the Bible story was written by men, and was meant to be taken literally but isn't literally true, you might say something that registers as "No Opinion," or you might say "meant as a lesson" because that's the closest answer to what you think. I don't think, though, that you'd say "happened that way word-for-word" unless you really did think that it happened that way word-for-word. Still, I can't be completely confident of that.

"Acknowledg[ing] the problems of Almighty God":

A How Appealing reader points out this item about Chief Justice Rehnquist's concurrence in the Pledge of Allegiance case:

At page ten of his opinion, the Chief Justice purports to quote President George Washington's first Thanksgiving proclamation as follows:

Whereas it is the duty of all Nations to acknowledge the problems of Almighty God, to obey His will, to be grateful for his benefits, and humbly to implore his protection and favor. . . .

The use of the word "problems" in that quotation is, of course, an error. The word that President Washington actually used (see here and here) is "providence."

Movies grouped by philosophical category:

Do you like both philosophy and movies? This web site lists the top philosophical movies of all time. The list is well thought out, though excessively American (where is Bergman's Persona, for instance?).

Even better, Jason Brennan groups movies by philosophical theme. His categories include skepticism/external deception, determinism, time travel, personal identity, philosophy of religion, contractarianism, epistemology, and relativism. Only a philosopher could come up with "Prudent Predator/Immoralism/Ring of Gyges" as a category; I applaud his ability to find three films (try guessing before looking) that fit the bill.

A Hollywood Education:

Just finished rereading A Hollywood Education, a collection of short stories by David Freeman; it must be the third or fourth time I've read it. I had long since lost my copy -- I'm pretty sure I lent it out to someone and never got it back -- and it's out of print now, but I found it used via Amazon. I highly recommend it; a review described it as one of the best books ever written about Hollywood, and it really is.

Is NRA Radio illegal?

My friend and fellow lawprof Rick Hasen writes:

The New York Times reports here that "[i]n a direct challenge to federal limits on political advocacy, the National Rifle Association plans to begin broadcasting a daily radio program on Thursday to provide news and pro-gun commentary to 400,000 listeners. The group says its jump into broadcasting with its program, 'NRANews,' means that it should be viewed as a media organization that does not have to abide by provisions of a sweeping campaign finance law from 2002. . . ." . . .

Because the NRA takes corporate money, under the law it cannot make "expenditures" (except through a separate PAC) on any "electioneering communication': that is, a broadcast advertisement made within 60 days of the general election mentioning an identified candidate for federal office and targeted at the relevant electorate. However, the law exempts from the definition of "expenditure" any "communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station[, newspaper, magazine, or other periodical publication], unless such facilities are owned or controlled by any political party, political committee, or candidate."

To give a simple example to start, NBC Nightly News can spend unlimited corporate funds on news stories naming Bush and Kerry (even endorsing one of them). But General Electric, parent company of NBC, could not spend any corporate funds for advertisements on NBC Nightly News or any other electioneering communications featuring Bush or Kerry in the 60 day window before the election.

Putting aside the possibility that the NRA is a "political committee" that owns or controls the broadcast station (it appears otherwise from the Times article), the relevant question is whether its three-hour daily show fits into the media exemption. The only Supreme Court case arguably on point is Massachusetts Citizens for Life, where the Supreme Court held that the special edition of a newsletter put out by an anti-abortion group was not a "periodical publication" under the media exemption.

Following MCFL's reasoning, one question about NRANews is whether this is a show put on only for electioneering purposes or is really a bona fide news and commentary program. The fact that the NRA started this show now and plans to broadcast through Election Day raises the question as to whether this is really a bona fide news program. It appears to be a factual question. . . .

This, it seems to me, just illustrates the problem with restricting corporate speech, exempting the media, and then deciding what's "bona fide" media and what's not. Why are opinionated media organizations started? Generally to express viewpoints, and often to influence elections (since that's often the ultimate goal of much expression of viewpoints). I assume that Air America is owned by a corporation, since the corporate form is the most effective way of operating that sort of entity. It's a corporation that puts out the show for electioneering purposes and to produce commentary programs. Likewise for the Rush Limbaugh show, The New Republic, The National Review, and so on.

Programs put on for "electioneering purposes" and "commentary programs" thus aren't antonyms -- they often overlap, because people often engage in commentary to directly or indirectly influence elections (whether ones that are coming up right away or ones that are many years in the future). There's nothing un-bona-fide about starting a radio station to comment in ways that may influence an election.

Of course, the FEC may indeed decide to prohibit the NRA program but allow other, established media. But the real reason would be simply that it's discriminating in favor of the existing organizations and against newcomers, not because there's something fishy or not bona fide about the NRA project.

What women want:

A male friend of mine writes, apropos the "men and sexy" post:

I think your friend is missing something. Men spend just as much time and effort as women do on the kinds of things that they perceive will make them an attractive mate. The difference is, men don't think that the key to being attractive is being a good flirt or wearing an "in" shirt.

Rather, men tend to believe that the key to attracting women is making lots of money, being powerful, or otherwise being the top dog. Are men less openly self-critical? On balance, probably yes, but that's true about most things, not just whether they are attractive to the opposite sex.

I think my friend is absolutely right that men do spend a lot of time trying to be financially or professionally successful -- on average, more than women, though plenty of women spend plenty of time on that, too -- and they do it in part because they know women find it attractive.

But I think Marilyn's original point, which is that men spend much less time than they should thinking about how else they can make themselves attractive to women, remains correct. Calling the success/money/power angle "the key" is, I think, a mistake, because there isn't just one key.

Women of my and my friend's social class, which is to say professional coastal urban women (I'm not saying that other classes are different, only that I can speak with less assurance about them) want it all. They do by and large want men who are successful. But while success is something of a genuine turn-on, it's much less so to women who meet lots of successful men, and have come to expect it. Those women also want more: A certain kind of behavior, attitude, whatever it is that they see as sexy (still a mystery to me, by the way).

An 18-year-old who wants to eventually date women of the class I describe would indeed be well-advised to go to college, prepare to get a great job, and to be a success. But when he's a 30-year-old practicing lawyer, even a successful one, he will generally be competing against others just like him.

He could invest effort into becoming much more successful than his peers -- but that's not easy, because he really would need to be much more successful. (The diminishing marginal utility of money applies also to a mate's money.) He's actually likely to get a much better return by investing effort into improving his social skills, changing some of his habits and attitudes, working on that side of male sexiness rather than just the power side. What's more, even the 18-year-old might find it worthwhile to invest some of his effort that way; after all, he wants women now and not just in the future, and social polishing yields more immediate dividends than professional advancement.

And men's underinvestment in this social self-polishing is what Marilyn was pointing to. Why men underinvest this way is a fascinating question. But it seems to me that she's right that they do indeed by and large underinvest.

Random and incomplete observation:

There are four kinds of people (at least among heterosexuals of my circle, who are those whom I have most studied on this score): (1) Men whose closest friends are men. (2) Men whose closest friends are women. (3) Women whose closest friends are men. (4) Women whose closest friends are women. (Yes, I know there are the half-and-halfs, and we should really be talking about a spectrum for each gender rather than categories, but bear with my oversimplifications here.)

I've been category two my whole adult life. My best man at my wedding was my brother, but my other attendants were two groomsmaids. I've always found it much easier to talk about personal matters with women than with men. I tend to enjoy casual chitchat with women more than with men. Nor did most of these friendships flow from my desire to be romantically involved with those women (that's true of a few, but only a few).

I'm pretty sure that historically categories one and four were dominant, but as professional and educational institutions have gotten more integrated, I suspect that categories two and three have grown (though I'd guess they're still a minority). But why is it that some people are in one category and others in another? Do the categories correlate with any other behavioral traits? I've always wondered about this, but haven't come to much of a conclusion.

Tuesday, June 15, 2004

The Journalist as Master:

Here's today's Kerryism from Slate: Kerry was asked in a C-SPAN interview,

We have had an FCC chairman who's been a deregulator. I looked back in the records. You missed the vote in the Senate last fall which overturned his media ownership rules.

Slate's edited version:

Kerry: Right. I wasn't there for the vote.

What Kerry actually said:

Right, but I declared myself completely in favor of it. I wasn't there for the vote, but I was 100 percent in favor of overturning his rules.

Maybe some reporters think it would be nice if candidates were slaves to questioners. "You're the boss, Mr. Journalist. If you want to focus on some aspect of an issue, I am duty-bound to go along with you.

"I must set aside the point that I want to make; not only must I answer your question, that's all I may do. If you have some agenda in what you want to convey to the public, I must follow your agenda, and completely ignore my own agenda. These are not the droids I'm looking for."

But candidates don't quite think that way, for some reason. Even noncandidates who know how debates operate realize the importance of articulating their own ideas, rather than limiting themselves to the narrow questions that the questioners ask. Sure, you shouldn't duck the question -- but you're certainly allowed to give an answer that places the matter in more context. It's better for you, and sometimes it's even better for the audience, which gets a bigger picture.

The questioner, for whatever reasons of his own, wanted to focus on Kerry's missing a vote. Kerry acknowledged this, but for perfectly understandable reasons of his own, also explained his stance on the merits.

The audience probably found Kerry's supposed "caveat[] and curlicue[]" to be more interesting than the answer to the questioner's narrow question. In any event, it made more sense from Kerry's viewpoint. Maybe the journalist only wanted to hear about the missed vote, and not about Kerry's underlying views. But why exactly should Kerry defer to the journalist's preferences on this?

(One might have wanted more explanation from Kerry -- for instance, why he thought [perhaps quite reasonably] that he didn't need to be there for the vote. One might also conceivably fault Kerry for the redundant answer, though sometimes repetition is helpful for emphasis. But those aren't the criticisms the Kerryism's author was making.)

Men and sexy:

My friend Marilyn Zielinski made an interesting observation a few weeks ago; I've been thinking about it (purely for academic reasons, of course!) on and off since, and I thought I'd pass it along:

I think almost any man can be sexy, can become a good flirt, can learn to attract women, if he is truly willing to. Like most social skills, the general principles aren't that mysterious, and are quantifiable if you pay attention.

I think it's particularly true that most men can learn to be sexy, since women are more forgiving about looks, which are less changeable . . . . Maybe it's easier for women to cultivate appeal, since we're sort of more raised with the idea of adapting ourselves, rather than just "being," but men can do it.

But most men don't really want to be sexy; they want sexy to be them. I don't mean to man-bash, men are one of my favorite genders, but it's such a waste of resources. Like you, I know tons of great women. They're (list of all the good adjectives), and people want to be around them.

And I know a fair number of (good adjectives) single men, but [it's generally] also clear why they're single. They don't listen, and won't; they won't get a real job; they're boring but don't want to acknowlege it or do anything about it. Hey, if that shirt was "in" when they were in high school, no need to see if any ads/mannequins/humans under 60 wear it today.

I don't have a single female friend who hasn't asked herself, "What am I doing wrong?" and been totally open -- often too open, in a self-blame-y way -- to the answer, and to changing the answer, often with great success. But I almost never find that men ask that question, or are even willing to hear the answer, let alone do anything about it. Instead, single men in my experience behave as if the only life possibilities are being the way they are, or acting. The idea of growth and change don't make the radar.

Of course some men welcome growth and change. But those men grew and changed, or were pretty cool to start with, and are usually -- not always, but usually -- hooked up. . . .

Naturally, like most generalizations, there are doubtless exceptions to this. And yet I think there's a lot of truth to it: Women think a lot -- much more than men -- about how they can become more attractive, and are willing to do a lot to try to become more attractive. Don't know what to do about that, but there it is.

Journalist subpoenas and dutiful citizens as "lap-dogs":

InstaPundit points to a story about journalists' refusal to testify in the trial of Lynne Stewart, a lawyer who alleged helped her client — a convicted terrorist leader — communicate with his followers:

Prosecutors issued subpoenas to four reporters at Reuters, The New York Times and Newsday, saying they want the reporters to testify that lawyer Lynne Stewart said what they quoted her as saying in their articles.

Newspaper articles on their own are not admissible because they are considered hearsay.

Lawyers for the reporters have argued that making the reporters testify would compromise their neutrality by forcing them to side with prosecutors.

In a Reuters story from earlier this month, journalists raised still more objections:

"We seem to be moving to a potential conflict between First Amendment interests and those of national security," said prominent press freedom attorney Floyd Abrams.

"This is an area fraught with danger for journalists and their ability to protect confidential information and sources, as well as non-confidential material," he said.

While all three media stand by the stories, they oppose the subpoenas on principle and because testifying could open the door to far broader cross-examination by the defense. . . .

Reporters say that without their privilege to refuse to disclose even non-confidential information, based on the First Amendment of the U.S. Constitution, they cannot do their job.

"Our sources will dry up if sources . . . think that anything they tell us will be repeated against them in court. Why would you speak to a reporter if those words are going to be read back against you in court?" said George Freeman, in-house counsel for The New York Times.

"We are supposed to be the watchdog of our government, not its lap dog, so we shouldn't be in bed with it testifying," Freeman said. . . .

Now I think there are good arguments for a journalists' privilege, though I'm ultimately somewhat skeptical about it. If journalists can't credibly promise confidentiality to confidential sources, they may find it much harder to gather important information. And the legal system does recognize some privileges — for instance, lawyers' privileges, psychotherapists' privileges, clergy-penitent privileges, and husband-wife privileges — that try to foster certain relationships even at the expense of the search for truth in trials.

But this is a pretty weak case for asserting such a privilege. The government wants to ask the reporters what Lynne Stewart said to them for purposes of publication — it wants to confirm that the quotes that the reporters published are indeed what Stewart said. If you expect your words to be in the New York Times, you likely won't be terribly surprised or concerned that they may end up being quoted in court as well.

This has little to do with the ability to keep confidential information that really is confidential (such as the identity of a confidential source). If the concern is that the reporters will be asked for truly confidential material, then the solution is to ask the court to bar such questioning, not to refuse to testify altogether, including about the clearly nonconfidential material.

More broadly, the New York Times lawyer's rhetoric here, about not being the "lap dog" of the government or "in bed with" the government, is just appalling. All of us, as citizens (or even noncitizens), generally have a duty to testify when called on to do so. That duty is part of the legal system's attempt to learn the truth, and provide justice to the government and to individuals alike.

This duty applies even when it may deter some constitutionally protected speech. If I talk to you about something, or e-mail you something, and that becomes relevant to some civil or criminal case (e.g., because it's relevant to determining my actions or intentions), you can be compelled to testify about it. This may well deter me from saying certain things to you: A businessperson, for instance, might be reluctant to express potentially racist, religiously hostile, or sexist views to people, for fear that those views may be discovered and used against him in a discrimination case.

Private conversations about politics are just as constitutionally protected as media reporting, and just as valuable; people's attitudes are often molded as much about what they hear from their friends and acquaintances as by what they hear from strangers in the media. Yet we accept that the duty to testify may well deter such conversations — it's part of the price we have to pay for getting at the truth in criminal trials.

Nor does a citizen become a "lap-dog" of the government, or get "in bed with" the government, because he does his duty (whether voluntarily or involuntarily), and helps the jury learn the truth about what happened. It seems to me arrogant, contemptuous, and contemptible for media representatives to suggest otherwise — to suggest that there's something base or some sort of sell-out in a person's responding to a subpoena.

So it seems to me that we must recognize that the media is asking here for a special privilege, a privilege that most ordinary people — including those engaged in quintessentially First-Amendment-protected activity, such as conveying their own personal political opinions in private — do not possess.

Perhaps there is some reason to provide such a privilege for confidential communications. But the privilege ought not devolve into a general right to refuse to do a citizen's normal duty, even when the communication about which they're asked to testify was so nonconfidential that it was ultimately published in a national newspaper. And it certainly shouldn't be asserted in the high-handed way that some media representatives tend to use.

Transportation watch list FOIA case:

U.S. District Court Judge Charles R. Breyer has just issued an an opinion and order in Gordon v. FBI, which involves a Freedom of Information Act request for information about the government's transportation watch lists, including the so-called "no fly" list. The order seems to be mostly a victory for the plaintiffs; here's the Conclusion:

The Court's preliminary review of the voluminous material demonstrates that in many instances the government has not come close to meeting its burden, and, in some instances, has made frivolous claims of exemption. The appropriate remedy is to have defendants review all of the withheld material to determine whether they believe in good faith that the material is in fact exempt and, if defendants contend it is exempt, to provide a detailed affidavit that explains why the particular material is exempt. General statements that, for example, the information is sensitive security information, are inadequate to satisfy the government's burden. That material which is not exempt shall be promptly disclosed to plaintiffs in response to their FOIA request.

The Court has not reviewed every piece of withheld information and every claimed exemption. Accordingly, that this Order does not mention a particular exemption or particular piece of withheld information does not mean that the Court agrees the information should be withheld. Defendants are directed to review all withheld material and reconsider whether it is exempt from disclosure, keeping in mind that it is defendants' burden to prove that an exemption applies and that exemptions are to be construed narrowly.

Once defendants' review is complete, and a further production has been made to plaintiffs, defendants shall file a further motion for summary judgment that addresses the remaining material. Defendants shall be careful to specify which exemption is being applied to particular information on any given document. Defendants need not address the classified material as the Court has reviewed that information in camera and determined that it is exempt. The motion for summary judgment shall be accompanied by a certification from government counsel attesting that counsel has personally reviewed all of the withheld information and in counsel's good faith opinion the withheld material is exempt from disclosure.

The parties shall meet and confer with regard to a schedule for defendants' further production and revised motion for summary judgment.

I'm not enough of a FOIA expert to comment on it, but the opinion seemed important enough to pass along.

Why did the Court agree to hear the Pledge case,

given the standing problem? Didn't they know that this was an issue? That's what a couple of people have asked me.

The answer is that they did know. Sometimes, the Court might take a case thinking that it lets them resolve a substantive problem, but there turns out to be a procedural barrier that keeps the case from being ready for Supreme Court resolution. Then, the Court will "DIG" the case, which means "dismiss [the writ of certiorari] as improvidently granted." That's often a sign that the clerks didn't check well enough for procedural barriers, and have thus wasted the Justices' time.

But here the procedural barrier (Newdow's lack of standing, caused by his not having the proper custodial rights with regard to his daughter) means that the lower courts should never have considered the case, or so the majority on the Court concluded. To correct this error on the Ninth Circuit's part, the Court had to agree to hear the case. Otherwise, the Ninth Circuit decision holding the "under God" to be unconstitutional would have remained the law in the states of the Ninth Circuit -- erroneously, in the view of the Court's majority.

What's more, the procedural barrier here wasn't an uncontroversial application of existing law: This was the first time the Justices had to face this particular sort of situation, so they had to create a new rule on the matter. And only five of the Justices endorsed this new rule; the other three thought that Newdow did have standing.

So the Court knew that there was a potential procedural obstacle to reaching the substantive Establishment Clause issue -- but the Court was right to agree to hear the case in any event.

What about pagan gods?

Some readers asked: Why aren't references to various pagan gods on government symbols (Athena on the California seal, Pomona on the L.A. County seal) also unconstitutional, if crosses are unconstitutional?

Well, there's no "pagan exemption" as such to the Establishment Clause, but recall that the current Establishment Clause test on this is basically (with some exception) the "endorsement" test: Would a reasonable, well-informed observer perceive the speech as endorsing religion generally, or a certain religion in particular?

Pagan religions have very few current adherents (there has been something of a revival, but I suspect that very, very few people actually believe in them), and a long history as basically cultural referents. All reasonable, well-informed observers, I think, would see the pagan referents as trying to tie to this cultural tradition, rather than as endorsing paganism or even religiosity generally. (Some people might still be offended by the use of the pagan symbolism, but the test isn't whether they're offended; it's whether a reasonable, well-informed observer would see the symbol as an endorsement of religion.)

A cross or a creche, on the other hand, might plausibly be seen as an endorsement of religion. Even a symbol of a minority religion -- such as Judaism or Islam -- might sometimes be seen as something of an endorsement, at least of religiosity generally. But a symbol of a basically dead religion, especially one whose symbols are almost always used for purposes other than the religious, can't be seen this way. (Of course, one can think that this is the wrong result, because the endorsement test is the wrong test. But it is the result that an evenhanded application of the endorsement test would call for.)

However -- and here the pagan symbolism analogy might indeed be helpful -- even the symbols of live religions sometimes do have primarily historical or cultural meanings. That's clearest in city names (Los Angeles, Sacramento, Santa Fe, Providence), and it's also true of the cross on the L.A. County seal, which in context is most reasonably seen as symbolizing L.A.'s religious history.

So Athena on a seal doesn't violate the endorsement test because these days she's almost never used as an endorsement of paganism, and a reasonable observer would thus almost never see her as such an endorsement. A cross on the L.A. county seal doesn't violate the endorsement test because, in this particular context, a reasonable observer would see it as a historical reference, not an endorsement of Christianity.

Judge helps robbery suspect escape:

Holman W. Jenkins Jr. writes, in OpinionJournal's Political Diary (go here to subscribe),

Last week, a controversial [New York] state Supreme Court judge [which is what New York calls its trial court judges -EV] helped a convicted drug dealer who was wanted on a robbery charge escape her courtroom from a side door while a detective waited outside the front door to arrest him. Justice Laura Blackburne had been told the detective had come merely to "question" the man and was irked to learn he would be arrested for an assault and robbery that had occurred a few days earlier. Police later had to track down and arrest the suspect on the streets. . . . The judge has been reassigned for the time being to hearing civil cases only, but that will likely be the end of it. Removing judges from the state bench is all but impossible. . . .

Ms. Blackburne is a classic New York politico. As chief counsel of the local NAACP office, she once sued Rupert Murdoch on grounds that it wasn't fair to let a foreigner own a TV station when so few blacks owned TV stations. . . .

Spinsanity criticizes Slate's Bushisms and Kerryisms.
Most Blatant Lie I've Heard for a While:

Heard on NPR: Montgomery County, Maryland, is considering a measure that would ban very large retail stores, a measure intended to prohibit WalMart supercenters in the county. The measure is being push by Giant Food (a local supermarket chain). A spokesperson for Giant says that the company is not worried about competition, but rather "is concerned about the environmental impact of the supercenters."

Naming Japanese newborns:

Ever considered naming a newborn baby Beetle or Sardine? How about Cancer or Dung, or even Who?

Those were a few of the 578 additional Japanese characters the Justice Ministry said Friday it might allow parents to use in names for children.

Like mothers and fathers in other countries, Japanese parents agonize over the naming of a child. With tens of thousands of Japanese characters — or kanji, based on Chinese ideograms — to choose from, the possibilities would seem limitless.

And that's exactly what the government wants to avoid.

"The average person can only read and write between 2,000 to 3,000 characters. The government made the law because it would be too inconvenient not to be able to read people's names," Justice Ministry official Yoshikazu Nemura said.

Tokyo first imposed restrictions on names just after World War II ended. Periodically, the list has been revised to reflect changes in the lexicon.

Japanese law now restricts names to a list of 2,232 characters. A child whose name contains a banned character can't be entered in the family register — an official document required for all Japanese nationals — until the name is changed.

The government, however, is reluctant, however, to approve names that signify evil or death.

Here is the full story. Thanks to Don Boudreaux for the pointer, also check out his new economics blog.

Fishy Trade Number:

We all know that oil accounts for the lion's share of America's trade deficit, but who would ever imagine that seafood is the next largest share? At a conference this past weekend, I learned that the U.S. imported over $7 billion net in seafood products in 2001, and the number has only grown since.

Understatement of the Month: From an article about Stalin's official movie editor: "Stalin loved movies, but he was much more than a movie buff." I'll say!
Stuart Hampshire

Chris Bertram reports that Stuart Hampshire has died, and will link to obituaries as they become available.

Monday, June 14, 2004

Interesting recent poll:

From Pollingreport.com:

ABC News PrimeTime Poll. Feb. 6-10, 2004. N=1,011 adults nationwide. MoE ± 3. Fieldwork by ICR.

"I'm going to ask about a few stories in the Bible. [See below.] Do you think that's literally true, meaning it happened that way word-for-word; or do you think it's meant as a lesson, but not to be taken literally?"

Literally True

Not Literally True

No Opinion

%

%

%

"The story of Noah and the ark in which it rained for 40 days and nights, the entire world was flooded, and only Noah, his family and the animals on their ark survived."

60

33

7

"The creation story in which the world was created in six days."

61

30

8

"The story about Moses parting the Red Sea so the Jews could escape from Egypt."

64

28

8

Establishment of politics:

A reader writes:

You blogged a few days ago on the amount of tax-payers' dollars spent on this [federal employees' day off to commemorate Reagan's death]. I'm wondering about another potential issue with [this]. I know very little about the doctrine of government speech and it has always confused me. It seems to me that all of this pomp and circumstance is an instance of the government expressing a viewpoint about Reagan's presidency. Certainly, the government deserves a significant amount of leeway when it comes to endorsing the current administration. But are there any First Amendment issues when the government spends so much money on such a high profile expression?

Nope -- there's an Establishment Clause that has been read as barring the government from expressing views on religion, but there's no Establishment Clause for politics. The government can spend lots of money overtly expressing political viewpoints, for instance that racism is bad, that drug use is bad, that patriotism is good, or whatever else. It can certainly spend it on actions that implicitly express political viewpoints; for instance, there's no trouble with the government spending billions of dollars on protecting the environment, though that naturally expresses a viewpoint about the value of the things being protected.

Some state laws bar state and local bodies from expressing their views on some topics, especially election-related ones (e.g., "vote for this candidate," or "vote against this ballot measure"); and there are of course political constraints on such overt partisanship as well. But there are no federal constitutional constraints on the government's expressing views on any subject other than religious ones. (Some people have proposed some very narrow exceptions, for instance as to the government's expressing overtly racist views and the like, but I highly doubt that even those exceptions indeed exist -- and in any event, they would be very narrow indeed.)

Does the City of Berkeley, and the Peace and Justice Commission,

have the right to free speech? Some people pointed out that Berkeley is a municipal corporation, so the Peace and Justice Commission proposal would strip Berkeley itself (and presumably its agencies) of free speech rights.

Well, it turns out that cities do not have federal constitutional rights vis-a-vis the state government. Cities are seen as political subdivisions of the state, and the state is free to tell them what to say or not to say. (It's possible that the California Constitution does give cities some free speech rights, but I don't think so.) The legislature might thus ban local governments from expressing their views on certain matters. In some states, in fact, state law bars political divisions from advocating or opposing ballot measures or candidates, or expressing views on other subjects.

Ah, but do states and local governments have constitutional rights vis-a-vis the federal government? May the federal government ban states or local governments from saying certain things?

That turns out to be an unresolved, though interesting question. The Supreme Court recognized this as an open issue in United States v. American Library Association, the 2003 case involving conditions on federal grants to public libraries, but didn't resolve it. Lower courts have considered it, but there's no clear answer in those decisions, either. (Curiously, the Supreme Court has held that the Fifth Amendment's Taking Clause does require the federal government to compensate state and local governments for takings of their property, even though the Clause specifically mentions only "private property.")

So I don't think the Peace and Justice Commission can be much faulted on this score: While their proposal, if adopted, would strip municipal corporations of First Amendment rights, it's not clear that such corporations have those rights in the first place, and we can probably make do just fine without their having such rights. I'm much more troubled by the proposal's stripping newspapers and other entities of their free speech rights.

Suicide-facilitating speech:

A proposed Australian law would ban the electronic distribution of "suicide promotion material," defined to include "material that, directly or indirectly . . . provides instruction on how to commit suicide," with the intent that "the material . . . be used by a person to commit suicide." I touched on this subject briefly, and mostly hypothetically, in my Crime-Facilitating Speech paper. Now it looks like the Australians might indeed prohibit much suicide-facilitating speech; and because such a prohibition is largely pointless if adopted just by one country -- since people could easily get the same material from Web pages abroad -- there might well be a move in the future to get other countries, including the U.S., to adopt this prohibition.

There should be no First Amendment rights for New York Times,

Sierra Club, and other groups, says the City of Berkeley Peace and Justice Commission. Check out the resolution that they ask the Berkeley City Council to endorse:

Now therefore, be it resolved that the Council of the City of Berkeley supports amending the United States and California Constitutions to declare that corporations are not granted the protections or rights of persons, and supports amending the United States and California Constitutions to declare that the expenditure of corporate money is not a form of constitutionally protected speech.

Of course, most newspapers are published by corporations, and many nonprofit activist groups (such as, I believe, the Sierra Club) are organized as corporations — it's a sensible way for such groups to organize themselves. And of course the only ways these groups can effectively speak is by spending their corporate money, whether to print newsletters, buy ads, run Web sites, pay their staffers to prepare press releases and reports, and so on. So if the Peace and Justice Commission has their way, all those groups would be stripped of constitutional rights. The government would, for instance, be free to bar newspapers and advocacy groups from talking about certain subjects, or for that matter expressing certain viewpoints.

Of course, other noncorporate groups share many traits of corporations. Consider, for instance, unions. They, too, have potentially indefinite life, limited liability, and other special government-provided benefits. They too were probably not considered much by the Framers of the Constitution (a point that the Peace and Justice Commission stresses as to corporations), because to the extent they were known at the time, they were quite different than they are now, and much rarer. They also lobby the legislature, and spend money to influence public debate. Yet curiously the Peace and Justice Commission would not apply the same rules to unions as it would to their customary adversaries.

Yet one more example of how a simplistic "corporations aren't people, so they shouldn't have people's rights" approach — which I discuss in more detail here — can lead people to unjustifiable conclusions (even ones that they themselves might not have intended).

Many thanks to reader Marc Greendorfer for pointing me to this.

Jews and Koreans:

I thought I'd mentioned this on the blog a while back, but a search didn't reveal it, so maybe I had only been planning to blog it. And, hey, there's nothing wrong with repeating yourself. There's nothing wrong with repeating yourself. So here it is:

The overseas Chinese are sometimes called "The Jews of the Orient." But what is the common bond between Jews and Koreans?

The answer is

(here.)

Justice Thomas defends Ninth Circuit in the Pledge case:

After the Ninth Circuit's decision in the Pledge of Allegiance case, many people faulted the Ninth Circuit. Others, myself included, said that the Ninth Circuit's decision was a perfectly plausible reading of the Supreme Court's precedent (even if not necessarily the one that we ourselves would take), and the fault, if there was fault (as I thought there was), lay with the Supreme Court, not the Ninth Circuit.

In his concurrence in the judgment today, Justice Thomas took this very view. Justice Thomas voted to uphold the Pledge of Allegiance on the merits against an Establishment Clause challenge. (The majority didn't reach the issue, but rejected the case on procedural grounds.) Justice Thomas is also probably the Justice with the broadest view of state and local governments' power to use religious speech and religious symbols.

Yet he specifically said that the Ninth Circuit's decision was "based on a persuasive reading of [the Court's] precedent." In fact, Justice Thomas said: "I conclude that, as a matter of our precedent, the Pledge policy is unconstitutional." And while he would reverse some of that precedent, that is a luxury that the Ninth Circuit did not have. So Justice Thomas must think that the Ninth Circuit was quite right, and did what it had a legal duty to do.

The limits of solar cells:

Clayton Cramer criticizes a California bill that would mandate the installation of solar cells.

City seals and city names:

In the wake of the L.A. County seal controversy, some people (including me) have given city names as an analogy -- city names such as "Los Angeles," "Sacramento," "Corpus Christi," "Providence," and the like are religious references, the argument goes, but surely we shouldn't hold them to be an Establishment Clause violation, even if one accepts that the Establishment Clause generally bars government speech that a reasonable, knowledgeable observer would see as an endorsement of religion. Why? Because city names are not seen today as endorsements of religion, but just as reflections of the nation's history. Likewise, the argument goes, with the cross on the L.A. county seal.

But the city name issue, it turns out, is not just a hypothetical. In the early 1990s, James O'Leary sued the County of Sacramento, complaining that the county's seal contained the religious term . . . "Sacramento." In the words of the Ninth Circuit memorandum in this case,

O'Leary alleged that the County of Sacramento's ("County") use of the "sacred holy name (Sacramento) on their county seals have caused him to suffer anger, shame, fright, humiliation, mental anguish, emotional distress and physical distress," forcing him to "go 'underground' with his Christian religion."

The court rejected O'Leary's claim on procedural grounds.

Dennis Prager Show:

I ought to be on the Dennis Prager Show this morning at 11 am Pacific, talking about the Los Angeles city seal controversy (here's my initial post on this).

Pledge:

Eugene lists some possible responses to the Court's dismissal of Newdow on standing grounds. My own reaction isn't on the list, though: "Well, at least they didn't affirm 'Under God' on the merits, thereby creating a lousy precedent that we'd be stuck with." I was never especially otpimistic thst Newdow would win (though I thought he should win), and I'd rather have had him lose like this than to have had him lose on the merits.

On the standing question itself I have no view; I like to see stringent standing requirements, but think that they're pretty hard to make sense of in establishment clause cases, since by definition establishment that doesn't also impair free exercise doesn't commit any easily-cognizable harm against any easily-identified individual. I also have no idea what precedents or principles apply to questions of standing by non-custodial parents.

Contractor immunity in the new Iraq:

This topic is far outside the area of my blogging expertise, but I couldn't help but notice this article in The Washington Post:

In an early test of its imminent sovereignty, Iraq's new government has been resisting a U.S. demand that thousands of foreign contractors here be granted immunity from Iraqi law, in the same way as U.S. military forces are now immune, according to Iraqi sources.

The U.S. proposal, although not widely known, has touched a nerve with some nationalist-minded Iraqis already chafing under the 14-month-old U.S.-led occupation. If accepted by Prime Minister Ayad Allawi, it would put the highly visible U.S. foreign contractors into a special legal category, not subject to military justice and beyond the reach of Iraq's justice system.

I can understand why the U.S. would not want to turn these contractors into "hostages" to a potentially hostile Iraqi justice system. Still, this was an administration that campaigned on the value of "accountability." It continues to show precious little real loyalty to this concept.

Everyone has his own perspective:

The Supreme Court, press accounts report, reversed the Ninth Circuit's Pledge of Allegiance decision, holding that Michael Newdow didn't have standing to challenge the Pledge (since under state law he didn't have sufficient custodial rights with respect to his daughter). The Court didn't reach the Establishment Clause question of whether "under God" in the Pledge is indeed unconstitutional.

Some will say, "Rats, too bad the Court didn't squarely reaffirm the constitutionality of the 'under God' Pledge." Others may say, "Too bad the Court didn't strike it down." Others might say, "Good thing that the Court is taking procedural requirements like this seriously." Others might say other things.

I say, "Great! One less case that I have to try to edit down to a manageable size for the textbook supplement that I have due in a few weeks."

"Numerous":

It really bugs me when people say "numerous" instead of "many" (e.g., "there are numerous alternatives to . . ."). Just as with "individual" used instead of "person," or "utilize" used instead of "use," "numerous" makes writing clunkier, more bureaucratese, and less accessible.

Words like this have what I've heard called the MEGO effect -- My Eyes Glaze Over. There may be a few situations where the simple alternatives aren't adequate synonyms, but 90% of the time switching to the simple word is much better. (Better yet would be to switch to something more concrete, such as "five" or "dozens" instead of "many"; but even the vague "many" is better than the vague and ponderous "numerous.") I'm not saying the long words are "wrong," only that they are less effective.

As Churchill supposedly said, in words of one syllable:

Short words are best, and the old words when short are the best of all.