"Woad trip," as a throwaway caption in Slate's review of Arthur. (I also like the title, Arthur: On the Rocks, which I take it is an allusion to the other Arthur.)

Here's the Defense Department order establishing it.

Many thanks to Gene Fidell of the National Institute of Military Justice for the pointer.

UPDATE: Marty Lederman (SCOTUSblog), who has thought a lot about the Court's recent military detention decisions, has comments.

So did Justice Scalia and Justice Kennedy, who provided two of the five votes needed to strike down the flagburning ban. On the other hand, one of the four votes to uphold the ban was Justice Stevens, who is now one of the most liberal Justices on the Court (and at the time was mostly a member of the liberal wing, alongside Justices Brennan, Marshall, and Blackmun, who were in the majority on the flagburning case).

Now maybe liberal Justice Stevens was right, and conservative Justices Scalia and Thomas were wrong on this. But it seems helpful to recognize that the flagburning-as-speech position and even the flagburning-as-protected-speech position is not just a province of those darned liberals.

For my explanation of why this position is actually correct, and why Cramer's parade of horribles is unsound, see the post below. But my point in this post is that flagburning, at least as a constitutional matter, is hardly a crisp liberal-conservative question.

Clayton Cramer e-mailed me this about the manure-spreading incident:

[I]f burning an American flag is protected freedom of expression, perhaps spreading manure [as a political protest] is too.

He was of course using it to suggest that flagburning shouldn't be protected, not that manure spreading should be.

I've never bought some conservatives' harping on the supposed ridiculousness of the Supreme Court's flagburning decision. I suspect that most people would agree that flag waving is constitutionally protected. The Supreme Court basically held that in 1931, in one of the Court's first decisions protecting free expression (Stromberg v. California). Would a law banning the waving of the Confederate flag really be obviously fine, because flagwaving isn't literally "speech" or "press"?

I suppose some people might argue that such a law would be constitutional for that reason. But I suspect that most people would disagree, and conclude that waving a flag really is a form of speech, just in a symbolic language. (It may not be oral speech, but unless one thinks that the government should have a broad right to suppress handwritten letters, because they are neither oral speech nor "press," one has to read speech more broadly than just oral speech.) Waving the flag is like wearing a black armband, applauding, saluting, wearing a satirical mask, or wearing a cross or star of David (which is protected both as religious practice and as speech).

It seems to me that flagburning is just as much symbolic speech as is flagwaving. One can argue that it's not very valuable speech, or that there's a specially compelling interest in banning it, as Chief Justice Rehnquist did in Texas v. Johnson. But the Court is quite right to treat it as speech.

Of course, all this deals with restrictions on flagburning on the grounds that it involves a flag. A law that bans the burning of all objects in certain public places — perhaps on the grounds that they are fire hazards — would be constitutional. [*] Likewise with a law that bans the placement of manure in the middle of a street.

So there's really not much tension here between the protection given flagburning and the lack of protection given manure spreading. An evenhanded ban on burning things in a place and an evenhanded ban on spreading manure there would be constitutional. Likewise, a ban on burning the American flag and a ban on spreading manure as a protest against gay pride parades would both be unconstitutional.

[*] NOTE: Under the United States v. O'Brien test, symbolic speech might be entitled to an exemption even from a generally applicable law — a law that doesn't single out expression — when the symbolic speech is highly unlikely to cause the harm that the law drives at.

This, though, is a very narrow doctrine, under which exemption claimants almost never win. And there are plausible arguments that the doctrine should generally be rejected, at least as to behavior that isn't traditionally expressive. Justice Scalia has been the chief advocate of such arguments, but note that even he recognized in the flagburning cases that a law that punishes expressive conduct precisely because it's expressive presumptively violates the First Amendment.

The Arkansas Democrat-Gazette, July 3, reports:

Police on Friday arrested a man accused of spreading manure along the path of a gaypride parade last Sunday in Conway. . . . [The man is charged with harassment,] a Class A misdemeanor, carrying a maximum fine of $1,000 and up to a year in jail.

The Conway police, fire and street departments were compiling a list of cleanup costs and will ask City Attorney Mike Murphy to pursue restitution . . . .

On Sunday morning, parade organizers John Schenck and Robert Loyd said they found manure spread outside their house at 1605 Robinson Ave. and along the parade route. City workers cleaned the street before the parade began.

Police said a dump-truck load of manure was spread on the street about 6:30 a.m. . . . [Schenck] said the episode showed why Arkansas needed a "hate-crimes" law.

The FBI defines a hate crime as "a criminal offense committed against a person or property which is motivated, in whole or in part, by the offender's bias against a race, religion, disability, sexual orientation, ethnicity/national origin."

How does it show that? Manure Boy is rightly being charged with a crime — spreading manure on a public street is antisocial behavior that harms those nearby, whether paraders or not; you shouldn't be allowed to do that, as political commentary or otherwise. It's properly not a very serious crime, since spreading manure isn't that harmful; a fine and a suspended sentence is likely the right penalty.

But in any event, should the law really treat differently manure spreading aimed at a gay pride parade at a St. Patrick Day's Parade (since hate crimes laws would cover crimes motivated by the target's race and ethnicity), but not manure spreading aimed at a Veterans of Foreign Wars parade or an anti-gay parade? (I assume that the spreader here was motivated by the gay pride paraders' sexual orientation, and not just their views, but the spreader at the hypothetical anti-gay parade would likely be motivated by the anti-gay paraders' political views, not their sexual orientation.)

I generally think that hate crimes laws are not unconstitutional (the Court got this right in Wisconsin v. Mitchell (1993)), though I think that they're on balance a bad idea. But applying such laws to vandalism aimed at gay-affiliated political speech but not other political speech might indeed be unconstitutional; and even if it's not unconstitutional, it is at least especially troubling.

Before the anti-homosexuality people start seizing on this as further evidence of those dominant gays trying to oppress the rest of us, let me mention that hate crimes laws were originally most seriously pushed by groups that see themselves as defending Jews and ethnic minorities. I think those laws are just as unjustified when applied to race, ethnicity, religion, or disability as they are when applied to sexual orientation. But here it looks like gay activists are just trying to get in on the same action that other groups have gotten in the past.

I'm aware that there are plausible arguments that crimes motivated by these factors are especially harmful or especially blameworthy — but I think that on balance those laws do more harm than good (see here for a brief summary of my views). And this incident is a good example of why the law should focus on the misconduct, not the anti-gay motivation behind the misconduct.

UPDATE: My original post erroneously referred to Schenck as the person who is charged with spreading the manure -- my mistake; as the excerpt makes clear, he was the parade organizer and thus in a sense the victim, not the criminal. Very sorry; just typed the wrong name.

"Sedition" is more than just a cool song from Fiddler on the Roof ("Sedition, sedition! Sedition! Who, day and night, must counsel revolution, Stir up mobs of people, urge them to revolt? . . ."). It's also the name of a crime, and a reader asks me: Given how narrow treason is, what's up with sedition?

"Sedition" has many possible meanings, but I think the reader (and some others) have used it to refer to advocacy of revolution against the government, or advocacy of illegal conduct more generally, or even attempts to arouse hostility against the government. The most famous Sedition Act in U.S. history, the Sedition Act of 1798, was limited to seditious falsehoods (though in practice was used against seditious opinions, too), and said that:

[It shall be illegal -- on pain of up to a $2000 fine and 2 years in prison -- to write or publish] any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to

• defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute;

• or to excite against them, or either or any of them, the hatred of the good people of the United States,

• or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act,

• or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government. . . .

[The Act was to remain in force until March 3, 1801, the last day of the Presidential term in which it was enacted. Bullets added. -EV]

Take away the requirement of falsehood, and set aside the hostile designs of any foreign nation, you have a working definition of "sedition."

Actually committing physical crimes, or conspiring to commit such crimes (i.e., agreeing with specific people to commit those crimes), is still illegal. But mere advocacy of crime is generally constitutionally protected (see Brandenburg v. Ohio (1969)), unless the speech is (1) intended and (2) likely to incite (3) imminent illegal conduct. The classic example is giving a speech to an angry mob, urging them (explicitly or implicitly) to attack someone or destroy some property. Public advocacy of violent conduct at some unspecified future time, on the other hand, is not treated as advocacy of imminent conduct, and is thus constitutionally protected. And imminence seems to be read quite narrowly, as referring to conduct in a few hours or a few days at most.

Now some other kinds of related speech can be restricted under other doctrines. Threatening a particular person, for instance, is unprotected under the threat exception. Soliciting a specific crime against a specific person, especially when done privately ("Please kill my wife"), is also unprotected, though the Supreme Court has never explicitly defined the distinction between this and incitement of nonimminent conduct.

But simply advocating the propriety of illegal conduct, whether it's an illegal sit-in, illegal violence, or revolution, is constitutionally protected (again, unless it's intended to or likely to cause imminent illegal conduct, which is quite unlikely). About a decade ago, for instance, a Florida sheriff urged that Ice-T (who now plays a policeman on television) be charged with sedition because of his Cop Killer song; but that would clearly be foreclosed, even if there was evidence that Ice-T was seriously urging killing of police officers (since he wasn't intending to urge imminent killing). See Lee Sheriff Wants Sedition Charge Over "Cop Killer," Orlando Sentinel Tribune, July 7, 1992, at D6.

Is the right rule? I think it probably is. While it's tempting to say that in a democracy, people who think a law is wrong should urge that it be changed, not urge that it be violated, laws that ban advocacy of illegal conduct quickly end up punishing a lot of speech that's quite valuable. Bans limited to explicit advocacy can be easily skirted; the message "break the law" can easily be conveyed without using those words. So the government will usually, for understandable reasons, try to "close this loophole" by going after implicit advocacy as well.

But much strong condemnation of a law (e.g., "Abortionists are murderers, and the law that allows abortion and protects abortionists from righteous defenders of the unborn is wrong and contemptible") can be credibly argued to be implicit advocacy of violation. The World War I-era cases (such as U.S. v. Schenck and U.S. v. Debs) might be examples of this phenomenon.

So anyone who wants to condemn an existing law will be at the mercy of prosecutors, judges, and juries -- if they conclude that deep down inside he was really intending to advocate breaking the law, and not just condemning the law and advocating that it be changed, then he'll go to prison. And as a result many people might well be deterred from even expressing strong disagreement with a law, for fear that it will be interpreted as implicit advocacy of breaking the law.

But in any case, rightly or wrongly, under the Brandenburg rule nearly all seditious advocacy constitutionally protected.

From the Washington Post:

Indianapolis native Kerry Edwards is feeling pretty good today about his decision to immortalize his name on the Web six years ago.

On Tuesday morning, shortly after Sen. John Kerry (D-Mass.) announced that Sen. John Edwards (D-N.C.) would be his 2004 running mate, the 34-year-old bail bondsman and owner of www.kerryedwards.com said he took down the picture of his child that graced the Web site and put up a for-sale sign.

It didn't take long for the phone to ring.

"Our campaign did inquire about KerryEdwards.com, but because of the money they were asking for we took a pass," said Kerry spokesman Michael Meehan. He said Edwards wanted a five-figure payment. . . .

I'm pretty sure Kerry Edwards' actions don't violate the Anticybersquatting Consumer Protection Act. I also suspect that they don't violate Kerry's and Edwards' right of publicity, though that's a bit more up in the air, given the vagueness of that right. And when it comes time to the smell test, it seems that the domain name owner's being named Kerry Edwards, and having registered your domain in 1998, would make judges lean in the owner's direction, even though he's now trying to exploit the fact that people would go to the site thinking it's related to the campaign. So pay the man his money, folks.

An e-mail from a reader leads me to give this brief refresher on treason. The Constitution defines treason thus:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

So, some ask, does this mean that anyone who helps our enemies (as the reader suggests John Kerry did with his statements during the Vietnam War) is guilty of treason, assuming the procedural requirements are satisfied?

No. The Supreme Court has held that "adhering" requires an intent to help the nation's enemies. Merely knowledge that one's actions will help the enemies isn't enough. Thus, for instance, in Haupt v. United States (1947), the Court concluded that a father's sheltering his son -- a Nazi saboteur -- isn't treason if his intention was simply to help his son (as a result of "parental solicitude"). To be treasonous, the father's actions had to be intended to aid the Nazis. Likewise, in Cramer v. United States (1945), the Court held that:

On the other hand, a citizen may take actions, which do aid and comfort the enemy -- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength -- but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.

There are some mid-19th century decisions that take a broader view of treason, for instance concluding that all trading with the enemy in time of war is treasonous, without regard for whether one is intending to help the enemy, or just intending to make money (which one knows will help the enemy, but which one doesn't do with the specific purpose of helping the ennemy). But the modern view is that intention, not knowledge, is necessary.

And this is indeed right, for the reasons Cramer gives. In wartime, many actions may help the enemy. Criticizing the government may help the enemy. Running as antiwar candidate may help the enemy (by emboldening the enemy's allies).

Raising prices, either on goods sold to the military or on goods to the public at large, may help the enemy. So can striking. So can retiring from a high-level job (in government or in essential civilian work), when one knows that one's replacement will be less effective. (None of these may help the enemy vastly, but treason law doesn't require vast assistance, only some assistance.) If all of these actions were treated as treasonous, then we would have a totalitarian regime during every war.

It's actually not clear whether even intentionally aiding the enemy should always be punishable treason, if it's done through speech. For instance, say that an American opinion leader thought during the Spanish-American War that the Spanish were in the right and deserved to win, and argued this intending to help the Spaniards -- and actually helping them, because this emboldened them, weakened domestic morale, and so on. This might well be constitutionally protected speech, though I think some other speech that aids the enemey would not be constitutionally protected; consider the Axis Sally broadcasts from Nazi Germany by Nazi employees (though U.S. citizens), or of course a government employee's revelations of nuclear secrets.

This is a complex issue, and I don't know where the line should be drawn. My friend and fellow lawprof Tom Bell has an interesting draft article about it, though I don't think I entirely agree with him.

But merely knowingly aiding the enemy through antiwar speech -- for instance, when one's intention is to get America out of what one thinks is a wrongheaded or unwinnable war, rather than to help the enemy -- is definitely not treason. One may still criticize it on various grounds, but not on that one.

I use Microsoft Word, and I'm generally pretty happy with it. If I'm wrong to be happy, that's fine, but I'm highly unlikely to invest the effort to switch to another word processor.

I would, however, like to be able to get the spell checker to ignore square brackets -- [ and ]. I don't want it to ignore text inside those brackets, only the brackets themselves. As blog readers may have noticed, it's standard legal practice (and I imagine standard in some other disciplines as well) to note changes in quotes using brackets, for instance, "Adher[ing] to [the United States'] enemies." I want the spell checker to treat the first word as simply "Adhering," rather than "Adher" followed by another word "ing."

Is there some way to get Word to do this? I've looked and asked, but couldn't find a good answer. Right now I'm copying the document, changing all [s and ]s in the document to empty strings, spell-checking the copy, and then making the necessary corrections to the original. I wonder, though, whether there's a simple way of avoiding this. (Switching to some supposedly better word processor doesn't qualify as a simple way, though buying a program that can quickly and easily spell-check Word files does qualify.)

If you have any suggestions, please e-mail me at volokh at law.ucla.edu.

A conversation just reminded me of a word I've always liked -- "Idiolect":

The speech of an individual, considered as a linguistic pattern unique among speakers of his or her language or dialect.

Not a good word to use, mind you, simply because of the minor detail that people won't understand what you mean. And if everyone did understand, then it wouldn't be a good word of the day. But it's still a good word to be amused by . . . .

Two years ago, Ring v. Arizona (in which Justice Scalia concurred) held that the Jury Trial Clause requires juries, not judges, to find the basic facts underlying the aggravating factors that cause the imposition of a death sentence. But what to do about people who had already been sentenced under the old scheme, and whose sentences were now being reviewed via habeas corpus?

The standard doctrine generally says that new constitutional rules aren't retroactive as to habeas cases, unless the new rule is needed to make the judicial process substantially more accurate. So does the Ring jury trial requirement qualify? In Schriro v. Summerlin, which was decided a few weeks ago, Justice Scalia (writing for the five conservatives) held that it doesn't — and here's the core of his argument:

The question here is not, however, whether the Framers believed that juries are more accurate factfinders than judges (perhaps so — they certainly thought juries were more independent). Nor is the question whether juries actually are more accurate factfinders than judges (again, perhaps so). Rather, the question is whether judicial factfinding so "seriously diminishe[s]" accuracy that there is an "'impermissibly large risk'" of punishing conduct the law does not reach. The evidence is simply too equivocal to support that conclusion.

First, for every argument why juries are more accurate factfinders, there is another why they are less accurate. . . . Members of this Court have opined that judicial sentencing may yield more consistent results because of judges' greater experience. Finally, the mixed reception that the right to jury trial has been given in other countries, though irrelevant to the meaning and continued existence of that right under our Constitution, surely makes it implausible that judicial factfinding so "seriously diminishe[s]" accuracy as to produce an "'impermissibly large risk'" of injustice. When so many presumably reasonable minds continue to disagree over whether juries are better factfinders at all, we cannot confidently say that judicial factfinding seriously diminishes accuracy.

This is a sensible argument, and the distinction Justice Scalia draws with regard to foreign practices — not relevant to the meaning of the right, which should be decided with reference to the Framers' views and American traditions, but relevant to empirical questions, such as those that the Court's retroactivity rules raise — is a plausible one. But it's important to note that even Justice Scalia, a firm critic of certain kinds of reliance on foreign practices, finds it proper to draw such distinctions, and to consider foreign practices in some situations.

I think critics of some Justices' use of foreign law — especially the shrillest critics, who denounce such use as a near betrayal of the Justices' oath — should keep these distinctions, and other similar ones, in mind. Thus, for instance, the reference to foreign attitudes in the Lawrence v. Texas majority may be different from the reference to such attitudes in the Grutter race preferences case, and still other uses of foreign practices might be treated differently still.

For more on this, see here, here.

I like Linda Greenhouse a lot, and she's certainly a very experienced and knowledgeable Supreme Court reporter. Still, I noticed this inaccuracy in her end-of-Term piece Saturday:

The second of the chief justice's major opinions came in an important church-state case, Locke v. Davey. The question was whether a state that underwrites college scholarships for secular study must also subsidize students who want to study for the ministry. The argument for the religious subsidies built on Chief Justice Rehnquist's opinion for the court two years ago in a school voucher case from Ohio, holding that it did not violate the Constitution for states to give parents vouchers for religious school tuition as part of a general "school choice" plan.

As a practical matter, the future of the school-choice movement depended on the answer to the question Locke v. Davey brought to the court: if vouchers were permissible, were they also constitutionally required? . . .

If that were really the question in Locke v. Davey, it would be quite remarkable -- I know of no Supreme Court or federal appellate opinion that has ever suggested that vouchers were constitutionally required. Clearly a state is constitutionally entitled to subsidize only public schools. (There are arguments that the state shouldn't be entitled to monpolize publicly funded education this way, but they are clearly losing arguments under today's doctrine, and likely wouldn't draw a single vote on any federal court.)

The question in Locke was different -- given that equal treatment of religious education and secular private education is permissible, is such equal treatment also constitutionally required? Davey's claim wasn't that vouchers were constitutionally required -- it's that once a voucher is given for a wide range of secular private education, religious private education couldn't be treated any worse.

This question is much closer, which is why the Ninth Circuit accepted this claim, as did two dissenters on the Court, in my view rightly. A careful reader might understand that this is the real issue, notwithstanding the way the article framed the question (especially given the paragraph that comes before). But I suspect that an average reader, who is breezing through the piece, would take the question quite literally.

I'm also not wild about framing the issue as an "argument for the religious subsidies." We probably wouldn't call an argument for evenhandedly including black applicants alongside white, Asian, Hispanic, and other applicants in some subsidy program -- with no distinction based on race -- an "argument for subsidies for blacks." We'd call it "an argument for equal treatment for blacks." Still, this is a somewhat closer matter; the framing of the question in the following paragraph is more clearly inapt.

So that's just another reminder of the need for caution in reading even work from experienced, respected writers: Mistakes happen, especially when one is writing with a short deadline, and with a word limit that sometimes yields imprecise shorthand. Even when an expert is writing (whether the expert is a Supreme Court journalist or a law professor), the reader should always be careful and skeptical. Unfortunately, many readers, especially ones who are quickly skimming the article, aren't likely to invest the effort into such skepticism -- and a writer's error can become an error in the thinking of hundreds of thousands.

Yup, that's what Clayton Cramer is noticing. Two to three percent of the population, and it turns out that they dominate the legal system. It's not just that a lot of heterosexuals happen to agree (rightly or wrongly) with the gay rights movement, so that heterosexuals dominate the legal system but happen to take many pro-gay-rights views. No, it's homosexual dominance.

Cramer is a very smart guy, who has done a lot of work that I admire for its accuracy and thoughtfulness (chiefly on guns). I link to him on many occasions, because he often makes good points. (UPDATE: For instance, the post I criticize also correctly condemns the Swedish legal system's punishment of antigay speech.) But if I am to condemn spurious claims of Jewish control of this or that institution — for instance, fantasies of Jewish or Israeli control of U.S. foreign policy, extrapolated from the fact that non-Jewish U.S. leaders have been persuaded that they should support Israel — I can't let this sort of stuff pass.

Adam Charnes, a very smart lawyer who has briefed this issue, reports that he "did a lot of research on the question and was unable to find any commentator who read article 5 of [the Third Geneva Convention] as requiring a hearing to determine whether the detainee was a belligerent. Nor did Hamdi's amici so claim in their briefs (though they often implied it)."

Readers Matthew Bower and Scipio (Scipio Mississippiensis, not Africanus) report that the Mississippi judge who published that homosexuals-should-be-locked-up rant was the equivalent of a Justice of the Peace; people who hold this post in Mississippi have relatively modest powers compared to normal judges. They also needn't be lawyers, or even college graduates; Scipio mentions that he has a vague recollection that Judge Wilkerson is indeed not a lawyer.

I suppose this makes me feel a little better — at least this fellow can't do that much damage, and his comments do not not necessarily reflect on the quality of the Mississippi Bar's opinions or articulateness.

Some people have said that the Supreme Court's Guantanamo detainee decision might have been influenced by the Administration's refusal to give the detainees the procedures to which they're entitled by the Geneva Conventions. The Geneva Conventions are a treaty that we signed, the argument goes, the government is bound to give this procedure, so we should interpret our habeas corpus statute as mandating at least something like what we've promised to provide in any case.

I'm not sure whether the Justices might indeed have been influenced by what they may see as Administration overreaching here. But, as best I can tell, the Geneva Conventions do not require the U.S. to give hearings to detainees who claim that they're actually civilians and should therefore be freed. (Recall that they're "challenging the legality of their detention at the Base," alleging that they have never "been . . . combatant[s] against the United States or ha[ve] ever engaged in any terrorist acts.")

1. Let's start with the Third Geneva Convention, which deals with prisoners of war. First, the Administration is quite right that al Qaeda irregulars don't qualify for protection (see article 4).

Second, while there's obviously debate about whether the detainees are al Qaeda irregulars, as opposed to members of the regular Afghan army or (as these petitioners say) not soldiers at all, I can find nothing in the Convention that gives them a legal right to a hearing on those questions. (Naturally it is to be expected that the U.S. government will seriously consider claims that they're detaining people by mistake, and the U.S. government's position is that it has considered these claims and rejected them -- the question is whether these people have a legal right under the Conventions to a formal hearing on the matter.)

Article 5 does provide for "competent tribunal[s]" -- which need not be civilian courts, but could just be relatively informal military tribunals -- to determine certain matters about the detainees. But here's what the Article actually says:

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

Article 4 in turn defines who is a prisoner of war, and thus entitled to the Convention's protection, as opposed to an unlawful combatant, who is not entitled to its protection. The basic distinction is between regular and generally uniformed members of the armed forces, and irregular and non-uniformed fighters.

So the tribunal is not required. Rather, if a tribunal is absent, and there's "doubt" about whether the people are regular soldiers (who are entitled to protection of the Convention) and irregular illegal combatants (who are not entitled to protection of the Convention), the government simply has an obligation to treat the people as prisoners of war (who after all are prisoners, and may certainly be detained for the duration of the conflict) and give them the Convention's protections. The terms of article 5 are quite clear on that. And under those terms, the government has no treaty obligation to providing hearings as to whether the detainees were soldiers or civilians. (The U.S. has indeed used tribunals in the past to decide whether the detainees ought to be released as civilians, but not, as best I can tell, as a matter of treaty obligation.)

The Administration has been faulted for not convening such article 5 tribunals. The administration's position is that there really is no "doubt" as to the status of these people, but let's say that the administration is mistaken. Its only obligation under the Convention would then be to treat the people as POWs -- to treat them humanely (as the Administration has said that it would), and not try them simply for having levied war against us (that's where being a lawful combatant as opposed an unlawful one makes a difference).

Nothing that I could find in the Convention mandates Parties to convene tribunals to decide whether detainees are entitled to go free altogether, or to free detainees in the absence of such tribunals. That's simply not something for which the Convention provides; and the distinction makes sense: Governments are understandably much more willing to sign a treaty that obligates them to err on the side of treating detainees humanely, and not punishing them beyond just detaining them (which is what the Third Convention mandates), rather than a treaty that obligates them to err on the side of releasing detainees who the government thinks (rightly or wrongly) are indeed enemy combatants.

And recall that the detainees' challenge is not merely that they were being denied the benefits of POW status under the Convention; the remedy they seek is not an assurance of such benefits. Rather, it's an assurance of a hearing on whether they are civilians and entitled to be released, a hearing that the Convention does not mandate.

2. What about the Fourth Geneva Convention, which deals with civilians?

Well, article 4 of that convention specifically exempts from its protection "Nationals of a neutral State who find themselves in the territory of a belligerent State . . . while the State of which they are nationals has normal displomatic representation in the State in whose hands they are." The Rasul v. Bush petitioners are Australians and Kuwaitis, so they're covered by this exemption -- the Fourth Convention doesn't apply.

The Fourth Convention would apply to Afghan nationals. But article 5 of that convention specifically says:

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

The terms of these provisions leave a great deal of discretion to the detaining power -- the question is whether the power "is satisfied" that the person is "definitely suspected of . . . activities hostile to the security" of the power, not whether the power is correct in so suspecting. Unlike with the Third Convention's article 5, the Fourth Convention does not provide for tribunals to make this determination. So even as to the Afghan Guantanamo detainees, who were not plaintiffs in Rasul v. Bush, the Fourth Convention requires no procedure.

What I say above is somewhat tentative: I'm not an expert on the Conventions, and might be mistaken. If someone knows of specific provisions in the Conventions that contradict my view, I'd love to hear this, and may revise my judgment accordingly.

Also, it may be that the Court was indeed influenced by what it saw as the government's failure to do what article 5 of the Third Convention required -- even though such procedures go only to the conditions of confinement and possibility of future trial, not to the release from detention that the petitioners sought -- and decided that the Administration needed reining in. And none of the above expresses an opinion on what the Administration should be doing, as a matter of justice, prudence, or even U.S. habeas or constitutional law, with the Guantanamo detainees. Finally, it may well be that some other countries or organization take a broader interpretation of the Conventions than the text of the Conventions authorizes.

But as best I can tell, it is not correct to say that the Administration is violating the text of the Geneva Conventions (and it is the text that the U.S. has ratified) by failing to give the detainees a hearing on whether they are indeed civilians who should be released. The text of the Conventions does not require any such hearings.

Alex Sundstrom suggests this answer to the statutory rape problem (again, note that I do not necessarily endorse any of the readers' views that I post here):

I think the most justifiable statutory rape law would apply only to men sleeping with teenage girls (retaining the standard 4-year age gap). My reasons are utilitarian ones, based on a market theory of dating.

(1) Statutory rape laws protect the future happiness of girls. Teenage girls tend to go after lower status males than they will be able to get later in life. They do so because (1) it's socially unacceptable to date teenage girls, so more responsible men/better mates will avoid doing so, (2) even a 30 year old alcoholic might seem more desirable to a teenage girl than the pimply and immature teenage boys she encounters at school, and (3) because teenage girls have a low supply of potential suitors with money, and because women like men who spend money on them in general, it's cheaper to impress a teenage girl — a 15 year old is a much cheaper date for a 30 year old alcoholic than a 25 year old woman would be.

This is bad for girls because the likely consequences — extensive sexual contact and potential offspring and/or longer-term partnership with undesirable mates — will make them unhappy later on, when they realize they can do better. If you restrict a girl's options to sex with age peers, she might make dating decisions she wouldn't make later in life (when all the dumpy social misfits have become attorneys, and can buy her things), but her dating choices will more closely track her future choices than without a statutory rape law.

(2) Of course, the law might affect what's socially acceptable. If this is the case, then it is bad for society to change the statutory rape laws and encourage men to sleep with teenagers, reducing the problem outlined in (1), they will be less likely to start stable families, and grown women will suffer.

This effect seems plausible to me — the age of consent in Ontario is 14, and my girlfriend's parents, who live there, see nothing remarkable about a 22 year old dating a 15 year old. [That's a hypothetical 22-year-old; Sundstrom isn't dating a 15-year-old himself. -EV] The talismanic effect that turning 18 currently has also seems pretty artificial: every red-blooded male knows that men are very much attracted to 16 year old girls, but just pretend not to be until those girls turn 18. A change in the statutory rape laws might affect this attitude (or it might not, considering the fact that sleeping with 17 year olds is already legal in many states).

If repealing statutory rape laws causes an increase in men sleeping with and dating teenage girls, they will increasingly choose to do so. Setting aside whether teenage girls are better looking than older women, sixteen year olds are at the very least much less prone to obesity than older women. So some men who place a value on thinness will choose to date a younger, thinner girl than they otherwise would have before it was less socially acceptable to do so.

These encounters are probably going to be of the casual-sex variety, because (1) intellect, maturity and potential for long-term companionship are not what grown men look for in teenage girls, (2) a shift in social mores would probably occur first among people who are already having casual sex with older women before it would occur in a marriage context (in no small part because of (1)). Because an increase in social acceptability of sleeping with teenagers would increase the supply of attractive girls more than it would increase the supply of attractive, marriageable girls, more men will be able to engage in commitment-free sex with attractive partners, and more men will thus choose to do so. They will be doing so instead of getting married and raising families.

None of these concerns apply to a situation where teenage boys sleep with adult women.

(I take it his point, by the way, isn't just that sex with teenage girls affects their future happiness in some small way — obviously, not all things that make teenagers unhappy should be criminal — but rather that it potentially has very large effects.)

Note again, please, that I probably won't be posting responses to people's suggestions; but if you have your own suggested framework, that you can defend in some detail but not at very great length, and that isn't too similar to what's been posted yet, please do pass it along.

Last week, Slate posted a response to some criticisms of its Kerryisms column, including to my criticisms. Kerryisms, the author says, aren't really attempts to translate Kerry's words into "plain English," though they were originally billed that way.

OK, that's fine -- but what then are they? The response talks about "get[ting] the joke," but what's the joke? The Kerryism columns continue to say that they focus on Kerry's "caveats," "curlicues," and "embellishments." The terms "curlicues" and "embellishments" seem to suggest that the material the columns point to is unnecessary (redundant or otherwise surplus). But often, it's not; it's needed to make Kerry's point politically effective or even simply accurate.

The term "caveats" seems to suggest that the removed material may be necessary, but somehow limits or takes away from Kerry's main point -- but what's wrong, funny, or even noteworthy about Kerry's acknowledging that his answers are more complex than a simple "yes" or "no"?

Just to further illustrate this, let's consider today's Kerryism. Kerry said:

The strong spending caps in my plan will ensure that spending doesn't grow faster than inflation. And if Congress fails to keep spending in line, the budget caps will mean across-the-board cuts in every area except security and education and mandatory programs like health care, Social Security, and Medicare. So when I say "a cap on spending," I mean it.

Here's the Kerryisms version:

The strong spending caps in my plan will ensure that spending doesn't grow. And if Congress fails to keep spending in line, the budget caps will mean across-the-board cuts in every area. So when I say "a cap on spending," I mean it.

Where's the joke? Kerry, to his credit, candidly said that he's talking about spending in real dollars, not nominal dollars ("faster than inflation"). If that's his plan (and it's a plan that's quite consistent with "a cap on spending"), he should make it clear. It seems to me that such candor and precision is to be praised, not condemned; and while it might make his prose less punchy, it may actually be politically wise, as well as more honest: It keeps his adversaries from faulting him for inaccuracy.

He also didn't say that he'd institute across-the-board cuts; he said he'd institute such cuts in all programs except some that he seems to think are too important to cut. Again, if that's his view, it's good that he reveals it -- and it may be politically quite important for him to reveal it, since otherwise people might fault him for threatening to cut Social Security, national defense, and the like. How is it clearer, in any other way better, or even funny to edit that out?

Maybe the claim is that with these "caveats," Kerry's last sentence ("So when I say 'cap on spending,' I mean it") is no longer accurate. But that's not right, either. First, as I mentioned above, even if "cap on spending" is treated as "stabilizing spending," it's quite fair -- even economically more sensible -- to focus on spending in real dollars, not nominal dollars, and still call stabilization a "cap." Second, I take it that Kerry's point in the next sense is that if "Congress fails to keep spending in line," his "budget caps" would mean huge cuts in what he sees as the optional areas, but not in the really important areas. It may or may not be good budget economics, but I don't see much by way of "curlicues," "embellishments," or even "caveats," unless by "caveat" you mean any nuance or retreat from an absolutist position.

So just what's the point here? Here's the columnist's response to my specific past criticisms, which I take it would also apply to the criticism here:

Another blogger, Eugene Volokh, gets the joke and doesn't like it. "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," Volokh writes. "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?"

That's a good and fair question. I prefer to let each reader decide for herself, case by case. I should have explained the general idea more clearly. Now I have. The rest of the judgments are up to you.

Can that possibly make sense? Surely the author must be trying to say something with his column. It can't just be: "Here's a Kerry statement, and a version without qualifiers. Decide for yourself if the qualifiers were necessary / useful / important." (This would be like the Bushisms column giving a bunch of Bush statements, some wrong and funny but some perfectly accurate or at worst slightly off, rather than focusing just on material that's worth criticizing or mocking. Oh, wait, that is what the Bushisms column does . . . .)

Presumably the columnist must have chosen this particular quote not because the quote simply reflects Kerry's praiseworthy refusal to oversimplify. The columnist must have chosen it because he thinks something about these particular qualifiers should lead some readers to think there's something wrong with what Kerry said. Well, what is that?

Interesting Cleveland Plain-Dealer story:

Lawyer Dean Boland has testified as a defense expert in three child-pornography cases in Northeast Ohio . . . . Charges were thrown out in two of the . . . cases, which sent waves of alarm through the law-enforcement community. . . . Boland, 37, of Lakewood, is one of a handful of criminal-defense experts in the country with the knowledge to testify about digital-imaging technology and the ways pornographers are using it to enhance and distribute their wares via the Internet. . . .

Boland has teamed with criminal defense lawyers who are exploiting a provision of [child pornography] law that says to obtain a conviction, a prosecutor must prove that a digital portrait of suspected child pornography is, in fact, a picture of a child. To meet that requirement, the image must be authenticated as a child and not an adult digitally enhanced to look like a child -- an extremely difficult level of proof for police and prosecutors, Boland says.

Without the evidence to refute Boland's testimony and prove authenticity, judges threw out child-pornography charges in Summit and Portage counties in March. A Columbiana County judge has reserved his ruling until trial. . . .

"The majority of child pornography downloaded from the Internet, as sick as the images are, really can't be determined to be actual children," Boland said. "It's very easy to fake these images, and prosecutors need to be required to authenticate their evidence." . . .

Recall that in Ashcroft v. Free Speech Coalition, the government argued that non-obscene virtual child pornography -- i.e., material that looks like children having sex or posing lewdly, but that actually didn't involve the use of real children -- should be unprotected in part because otherwise it would be hard to enforce bans on actual child pornography. The Court rejected that argument:

Finally, the Government says that the possibility of producing images by using computer imaging makes it very difficult for it to prosecute those who produce pornography by using real children. Experts, we are told, may have difficulty in saying whether the pictures were made by using real children or by using computer imaging. The necessary solution, the argument runs, is to prohibit both kinds of images. The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down.

The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter.

The Constitution requires the reverse. "[T]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted . . . ." The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.

Justice Thomas concurred in the judgment (though his vote wasn't needed to form the Court's majority); he reasoned:

In my view, the Government's most persuasive asserted interest in support of the [CPPA] is the prosecution rationale -- that persons who possess and disseminate pornographic images of real children may escape conviction by claiming that the images are computer generated, thereby raising a reasonable doubt as to their guilt. At this time, however, the Government asserts only that defendants raise such defenses, not that they have done so successfully. In fact, the Government points to no case in which a defendant has been acquitted based on a "computer generated images" defense.

While this speculative interest cannot support the broad reach of the CPPA, technology may evolve to the point where it becomes impossible to enforce actual child pornography laws because the Government cannot prove that certain pornographic images are of real children. In the event this occurs, the Government should not be foreclosed from enacting a regulation of virtual child pornography that contains an appropriate affirmative defense or some other narrowly drawn restriction.

The Court suggests that the Government's interest in enforcing prohibitions against real child pornography cannot justify prohibitions on virtual child pornography, because "[t]his analysis turns the First Amendment upside down. The Government may not suppress lawful speech as the means to suppress unlawful speech."

But if technological advances thwart prosecution of "unlawful speech," the Government may well have a compelling interest in barring or otherwise regulating some narrow category of "lawful speech" in order to enforce effectively laws against pornography made through the abuse of real children. . . .

Will cases such as the ones described in the Plain Dealer article -- assuming that they indeed reflect serious obstacles to prosecution of real child pornography, and not just easily remediable errors on the government's part -- persuade Justice Thomas, and perhaps even one of the Justices in the Free Speech Coalition majority (say, Justice Breyer)?

Thanks to reader John Waszak for the pointer to the newspaper article.

about her lesbian ex-partner, who has joint custody: I blogged about this case last November, when the judge entered the order; here's a brief excerpt from the original news story:

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

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

Judge Coughlin, who issued his ruling April 28, did award Dr. Clark sole responsibility for the girl in the area of religion, although with the caveat about exposing the child to anything "homophobic." . . .

Mr. Staver pointed out that the judge gave no similar orders to Miss McLeod regarding remarks or teaching about Christianity or Christians. "It's a real one-way street on this," he said. . . .

Today, the Colorado Court of Appeals reversed the order, though leaving open the possibility that it could be reimposed:

Finally, Clark contends the trial court violated the United States and Colorado Constitutions in ordering that, although Clark would be awarded ["]sole parental responsibility . . . in the area of religion,["] she would be required to make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic. The court neither defined homophobic nor found that exposure to homophobic teachings would either endanger E.L.M.C.'s physical health or significantly impair her emotional development. We conclude that remand for further findings is necessary on both constitutional and statutory grounds.

"While [c]ourts are precluded by the free exercise of religion clause from weighing the comparative merits of the religious tenets of the various faiths or basing [their] custody decisions solely on religious considerations, the family is not beyond regulation in the public interest as against a claim of religious liberty, and neither the rights of religion nor rights of parenthood are beyond limitation." Thus, evidence of beliefs or practices which are reasonably likely to cause present or future harm to the child is admissible in a custody proceeding.

When parental responsibilities have been determined, § 14-10-130(1) allows the person with decision-making responsibility to determine "the child's upbringing, including his or her . . . religious training," unless the court, after hearing and upon motion by the other party, finds that, "in the absence of a specific limitation of the person's . . . decision-making authority, the child's physical health would be endangered or the child's emotional development significantly impaired." . . .

Here, the trial court observed that Clark and McLeod will never be able to agree regarding the religious upbringing of the minor child and awarded Clark sole parental responsibility concerning religion. Thus, Clark is the "person . . . with responsibility for decision-making" within the meaning of § 14-10-130(1). . . .

Here, . . . we cannot determine from the findings whether the trial court applied the correct standard in limiting Clark's right to determine the child's religious upbringing. Although McLeod argues this restriction is a mere nondisparagement clause, we cannot uphold it on this basis because it is not so described in the trial court's order. Nor is it mutual.

Hence, given the important role that religious freedom enjoys in our constitutional scheme of ordered liberty, and the mandate of § 14-10-130(1), we conclude that remand is necessary. . . .

Clark does not assert, and we do not address, amicus Liberty Counsel's argument that lack of a definition of homophobic in the order creates a constitutional problem of vagueness and overbreadth. However, Clark may present this issue to the trial court on remand, in the context of the court's additional findings. . . .

So the restriction has been lifted -- but if the trial court judge concludes that without the restriction on anti-homosexual comments, "the child's emotional development [would be] significantly impaired," then the restriction could be reimposed.

The Court of Appeals also upheld the trial judge's decision to award joint custody to the mother and the ex-partner, though the ex-partner hadn't adopted the child. The court's decision was based on the "psychological parent" doctrine: Once someone has raised a child for many years, from near infancy, with the legal parent's permission, it's in the child's best interest that the resulting psychological bond -- which is much more important to the child than any legal or biological bond -- be maintained. The court also concluded that the doctrine doesn't violate the legal parent's parental rights under the Constitution (distinguishing Troxel v. Granville, the case striking down a grandparent visitation law). That part seems quite sensible to me.

The Mississippi Supreme Court just decided a very interesting judicial free speech case. A state judge sent the following letter to a newspaper (and followed it up with comments to a radio station):

Dear Editor:

I got sick on my stomach today as I read the (AP) news story on the Dog attach [sic] on the front page of THE MISSISSIPPI PRESS and had to respond!

AMERICA IS IN TROUBLE!

I never thought that we would see the day when such would be here in AMERICA. The last verse of chapter one of the book of Romans in our HOLY BIBLE is my reason for responding and sounding the alarm to this. You need to know as I know that GOD in Heaven is not pleased with this and I am sounding the alarm that I for one am against it and want our LORD to see and here [sic] me say I am against it.

I am sorry that the California Legislature enacted a law granting gay partners the same right to sue as spouses or family members. Also, that Hawaii and Vermont have enacted such a law too.

In my opinion gays and lesbians should be put in some type of a mental institute instead of having a law like this passed for them.

I don,t [sic] know but I believe if we vote for folks that are for this we will have to stand in thh [sic] judgement of GOD the same as them.

I am thankful for our Legislators and pray for wisdom for them, on such unbelievable legislation as this.

May GOD bless each one of them in JESUS CHRIST NAME I pray!

Thank you for printing this,

Connie Glen Wilkerson

Bro. Connie C. Wilkerson

The Mississippi Commission on Judicial Performance asked the Mississippi Supreme Court to sanction the judge; the relevant Canon of Judicial Ethics turned out to be "A judge should . . . conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." The Mississippi Supreme Court held 5-2 that sanctioning the judge would violate the First Amendment. A few thoughts:

1. An important question here is whether the First Amendment rule here should be the same as when the government is acting as sovereign, punishing (even criminally) speech by private citizens, or the same as when the government is acting as employer. I think this is not an easy question, but it's probably the critical one.

2. If the majority is right that the rule should be government-as-sovereign, then I think it's correct to say that the speech is constitutionally protected. The majority correctly dismissed the argument that there's a compelling interest in protecting impartiality and the appearance of impartiality:

   No credible person could dispute that having impartial judges is a compelling state interest. But "impartiality" is not the same as the "appearance of impartiality." We find no compelling state interest in requiring a partial judge to keep quiet about his prejudice so that he or she will appear impartial.

   Whatever state interest the Commission may find in preventing judges from announcing their private views on gay rights would conflict with, and be outweighed by, the more compelling state interest of providing an impartial court for all litigants, including gays and lesbians. Allowing — that is to say, forcing — judges to conceal their prejudice against gays and lesbians would surely lead to trials with unsuspecting gays or lesbians appearing before a partial judge. Unaware of the prejudice and not knowing that they should seek recusal, this surely would not work to provide a fair and impartial court to those litigants.

   But I think the Court should have been free to reprimand the judge — not to remove him from office or otherwise take away any privileges, but to formally express its own views that his statement deserves condemnation. The majority seemed to suggest otherwise, but didn't explain why it couldn't exercise its own counterspeech as a remedy for the judge's speech.

3. The dissent had a plausible argument that the judge is a government employee, employed to do a job that his speech has ended up undermining. The judge might, for instance, end up having to recuse himself from cases where homosexuals are parties or even witnesses. At the same time, I'm quite troubled by two arguments by the dissent: "I do not agree that this type of speech — the judge's personal views regarding all homosexuals — relates to political and social community concerns" (p. 29) and

   If the judge now before this Court had done no more than express his views on statutes concerning same-sex partners and legislation regulating their activities or their rights, the analysis could stop here. As earlier mentioned, Canon 4B expressly recognizes the unique value of judges contributing to improvements of the law and the legal system and acknowledges their freedom to speak out in these areas. However, when the judge in today's case stated that certain individuals in our society were sick and that they all needed to be indiscriminately placed in mental institutions, he crossed over the line!

   (pp. 26-27). Here the dissent is wrongly denying that their view would seriously restrict judges' speech, rather than acknowledging that this is a substantial restriction but concluding that it's a justified one. To effectively and persuasively defend their "views on statutes concerning same-sex partners and legislation regulating their activities or their rights," judges would have to explain just why they think same-sex relationships are less worthy than opposite-sex ones — and to do that, they might well need to convey their "views regarding all homosexuals," which of course do therefore "relate[] to political and social community concerns." Perhaps the restriction is constitutional despite that; but judges shouldn't pretend that such a restriction really doesn't interfere with judges' ability to express their views concerning the law, or other "political and social community concerns."

4. Finally, it seems to me that even most reasonable critics of same-sex marriage or of Lawrence v. Texas have to be appalled by the judge's position. Gays and lesbians should be put in some type of a mental institution? Over five million Americans locked up because of their sexual preference? (Note that his argument couldn't even be defended on the grounds that it's a call to restrict conduct rather than just orientation — if homosexuals are mentally ill, they remain mentally ill even if they stop having sex.)

   Views like his — plus of course spelling and capitalization like his — end up being the strongest arguments for the pro-gay-rights movement.

Thanks to reader Andy Lowry for the pointer.

UPDATE: Just to make it clear, my point in the second-to-last paragraph -- "Views like his . . . end up being the strongest arguments for the pro-gay-rights movement" -- is a descriptive one: When people hear stuff like this, they're much more likely to become hostile to the anti-gay-rights movement, and somewhat more likely to become sympathetic with the gay rights movement. Such a change in attitude may or may not be logically valid, but it is psychologically quite likely. Popular revulsion at people who back position X may often be worth a dozen logical arguments that position X is unsound.

ClaytoN Cramer, who I think took that paragraph as a normative argument, rather than a descriptive one, asks "By this reasoning, the prominent role of homosexuals in spreading AIDS ends up 'being the strongest argument for' opposing the gay rights movement." Sure. My guess is that the association between male homosexuals and AIDS has led quite a few people to a less pro-gay-rights position (though there may be complex effects stemming from the way AIDS may have created some sympathy for homosexuals as well, and may have led them to be better organized politically). Certainly if gay rights activists are seen as reckless about AIDS, for instance by opposing the closure of bathhouses and the like, or more generally by promoting promiscuous sex, this makes people much more likely to become hostile to the pro-gay-rights movement.

This is just human nature: When people see fools, bigots, or lunatics on one side of an issue, they are likely to be alienated from people on that side, and more sympathetic to people on the other side. Right or wrong, that's reality.

A Slate article reports:

Following the recent beheadings of Americans and other foreigners in Iraq and Saudi Arabia, the U.S. press turned to various experts to identify a precedent in the Quran or Islamic history for this kind of gory murder. "Beheadings are not mentioned in the Koran at all," Imam Muhammad Adam El-Sheikh, co-founder and chief cleric at the Dar Al Hijrah mosque in Falls Church, Va., told USA Today. Yvonne Haddad, a professor at the Center for Muslim-Christian Understanding at Georgetown University agreed, telling New York Newsday, "There is absolutely nothing in Islam that justifies cutting off a person's head."

If reporters bothered to open up a copy of the Quran, say, N.J. Dawood's Penguin Classics translation, they'd find at least two relevant passages:

God revealed His will to the angels, saying: "I shall be with you. Give courage to the believers. I shall cast terror into the hearts of the infidels. Strike off their heads, strike off the very tips of their fingers." (Sura 8, Verse 12)

"When you meet the unbelievers in the battlefield strike off their heads." (Sura 47, Verse 4)

The piece correctly points out that this may not reflect the views of mainstream Islam today. (The Bible says that eating shellfish is an abomination, but that's not the view of mainstream Christians today.) But it also correctly points out that the quotes the newspapers passed along were inaccurate, and that newspapers should be less credulous on such matters.

The complaint is linked to here. The story about Justice Breyer's response is here. An excerpt:

A justice of the Supreme Court yesterday rebuffed a call by members of Congress for an investigation of a federal judge's statement last month that President Bush came to power in a similar way to dictators such as Hitler and Mussolini.

Justice Breyer said a committee he chairs that studies the enforcement of judicial-conduct rules is not the appropriate forum to hear the complaint against Judge Guido Calabresi of the Manhattan-based 2nd Circuit Court of Appeals.

"The committee has no authority — statutory or administrative — to investigate particular allegations of misconduct and impose sanctions," Justice Breyer wrote in a letter to Rep. Lamar Smith of Texas. . . .

Justice Breyer's response, which was released by the high court yesterday, points out that the established procedure for filing a complaint against a federal judge is to write to the clerk of the appropriate appeals court. . . .

Also, an amusing tidbit: "In their correspondence, neither Justice Breyer nor the lawmakers mentioned the identity of the keynote speaker at the American Constitution Society's gathering. It was Justice Breyer."

Reader Pat Birmingham points to this table of state marriage statutes, including the age requirements (which tend to be 18 without parental consent, 14 to 16 with parental consent, and in a couple of instances 12 for girls, though that might require judicial consent, too -- I can't tell just by looking at the table).

This is not a huge problem -- errors always happen -- but I thought it was worth flagging. Ted Frank reports that on page 337 of Clinton's book,

Clinton mistakenly says that Reagan nominated Scalia after the Bork nomination was rejected. "President Reagan then nominated Judge Antonin Scalia, who was as conservative as Bork, but hadn't said and written as much to prove it."

The problem here isn't just the chronology -- Scalia was nominated before Bork. It's also that Scalia was widely known to be a conservative legal scholar (and a conservative federal court of appeals judge), who had written and said lots of things that showed his conservatism.

Ann Coulter writes:

As Mickey Kaus has pointed out, every time Kerry starts campaigning, his poll numbers plummet ... But he's got a lot of surrogates campaigning for him. There's Michael Moore, who has said he hopes more Americans will die in Iraq. His movie, "Fahrenheit 7/11" as we call it, apparently supports the [New York] Times' view that life in Iraq was better, sunnier, happier under Saddam Hussein. Moore has also accused the American people of being the stupidest, most naive people on the face of the Earth. And after last weekend, he's got the box office numbers to prove it!

Can any readers point to Moore's saying that he hopes more Americans will die in Iraq? If you have a specific quote that expresses this view (with a citation or, better yet, a URL), please e-mail it to volokh at law.ucla.edu. I'm genuinely not sure whether or not he did; Ms. Coulter may well be mistaken on this. Thanks!

UPDATE: Ted Frank points to this: "I oppose the U.N. or anyone else risking the lives of their citizens to extract us from our debacle. I'm sorry, but the majority of Americans supported this war once it began and, sadly, that majority must now sacrifice their children until enough blood has been let that maybe — just maybe — God and the Iraqi people will forgive us in the end." Earlier in the item, he says "The Iraqis who have risen up against the occupation are not 'insurgents' or 'terrorists' or 'The Enemy.' They are the REVOLUTION, the Minutemen, and their numbers will grow -- and they will win."

Hmm; doesn't quite sound like hope that more Americans will die in Iraq (note the "sadly," plus the "must" seems to refer to what he sees as the inevitable consequences of the Administration's policies, rather than what he would like to see happen). On the other hand, it's quite clear that he wants us to lose, and some very bad people to win. But in any event, I'm not at all sure that this is what Coulter was referring to.

I blogged in March:

No hint of litigation about this yet, but it makes for an interesting hypothetical question (assuming Slate didn't get a copyright clearance) -- check out this Slate "Juicy Bits: We read the book so you don't have to" column, and compare it to the situation in Harper & Row v. Nation Enterprises (1985). Not an identical case, of course; for instance, the excerpts here are from a published book, rather than a yet-to-be-published book. Still, it seems like an interesting fair use issue.

Reader David Gil points to this item in Slate's Corrections column:

After receiving a complaint from the publisher that a June 22 "Juicy Bits" article on My Life by Bill Clinton infringed on the book's copyright, Slate removed the piece on the advice of counsel.

Laugh-out loud funny video. Thanks to Clayton Cramer for the pointer; he links to some others in the same series.

Rick Hasen, a top election law expert, discusses the subject.

A Montana newspaper reports:

University of Montana professor Rob Natelson, accusing the Law School of discriminating against him for years because of his conservative political views, has asked the state Board of Regents to overturn a decision denying him the opportunity to teach constitutional law. . . .

Natelson urged the regents to admonish the Law School "to reassess its policies and practices to assure that faculty members of all viewpoints receive equal opportunity and treatment in hiring, promotion, work practices, merit pay and faculty awards, and that there is greater viewpoint diversity among faculty."

In addition, he asked the regents to order the Law School to file "a plan of affirmative action (but not preferential hiring) to assure that the goals of equality opportunity, equal treatment and intellectual diversity are met." This may include, he said, "reassessment of intellectual political bias, faculty sensitivity training and basic education in federal and state provisions against illegal discrimination." . . .

Natelson said he's been punished by the Law School in several ways. His requests for merit pay increase have been denied, he said, and his applications to teach constitutional law have been spurned four different times after professors teaching the course have left the school. . . .

In his appeal, Natelson cited the Montana Constitution ban on political discrimination and said political discrimination by state agencies can be unconstitutional under the 14th Amendment to the U.S. Constitution. . . .

I'm not sure whether politically based teaching assignment decisions would indeed be unconstitutional -- the question of a university's power to control the content and viewpoint of the classes that it offers turns out to be a complex and, in my view, unsolved First Amendment issue. Moreover, since it would be very hard for a university to control class content directly (for instance, by reviewing each professor's lesson plans, or monitoring what he says in class), the university might plausibly argue that such control, if it's constitutionally permissible in the first place, can be done by considering a professor's ideology in deciding which classes to assign him to teach.

I'm also not sure whether Prof. Natelson's claims are factually accurate (and I'm sure that I won't invest the huge amount of time needed for me to decide this for myself).

Still, if Prof. Natelson's claims are factually accurate, then this would show a serious professional failing (whether or not it's also a legal failing) on the law school's part. I do hope the matter gets more closely investigated.

Many thanks to Paul Caron (TaxProf Blog) for the pointer.

Here are Glenn Reynolds' views, though not squarely focused on the age of consent.

The Curmudgeonly Clerk responds (see his post for various links):

As regular readers know, I have done a fair amount of blogging about statutory rape laws over the course of the last year or so, and I have come to advocate what is essentially a descriptive approach to the law of statutory rape. That is, I think that the age of consent ought to correspond to teenage behavioral norms rather than attempting to prescribe them. To set the law up in this area in any other fashion basically criminalizes otherwise consensual sexual behavior that is not statistically aberrant.

For example, an Alan Guttmacher Institute paper indicates the following percentages among teenage females (where the % indicates sexual intercourse):

Age 15: 24%

Age 16: 39%

Age 17: 52%

Age 18: 65%

The percentages for teenage males are not dissimilar. But I assume that the female percentages are the ones that really matter in this debate, as statutory rape prosecutions most often involve female victims. Likewise, concerns about the poor judgment of teens and the possibility of adults preying on them always seem to be primarily directed towards female teens.

Of course, even from the foregoing data, one might dispute what age/percentage correlation is sufficiently high to serve as the basis for the age of consent. It seems to me though that rather large numbers of teens are engaging in sexual intercourse by the ages of 16 and 17. And, it's important to remember that the foregoing statistics apply solely to "sexual intercourse." If other sexual activities are accounted for, those percentages may rise significantly.

Admittedly, this descriptive approach may run into more difficulty in serving as a basis for "Romeo and Juliet" provisions that typically exist within statutory rape laws (i.e., the provisions that provide that, even when one of the participants has not reached the age of consent, there is no rape so long as the other participant is within a certain range of years). However, there is data on this as well. The aforementioned Guttmacher study reports that:

Nearly two-thirds (64%) of sexually active 15-17-year-old women have partners who are within two years of their age; 29% have sexual partners who are 3-5 years older, and 7% have partners who are six or more years older.

So, one can make a good case, I think, for fairly narrow "Romeo and Juliet" provisions, particularly if one is contemplating a lower age of consent. No one, I suspect, has a problem with prosecutions of the sort detailed in this Houston Chronicle article. However, a narrow age-range for "Romeo and Juliet" provisions does produce some questionable prosecutions with unexpected frequency (e.g., cases involving two teens). Though even cases involving only teenage participants are themselves not easily characterized on occasion.

Personally, I am less and less persuaded by prophylactic arguments directed at teenage wisdom. Increasingly, in the criminal justice system, we are willing to attribute a high degree of sophistication and culpability to minors (i.e., treating juveniles as adults). Statutory rape laws head in the exact opposite direction. I find it somewhat difficult to reconcile the two trends. Others hve offered additional reasons for questioning the paternalism that lies behind statutory rape laws.

The Guttmacher study does admittedly provide statistics that might be are cause for concern regarding pregancy and STDs among teens, two oft-cited rationales for enforcing statutory rape laws. However, my hunch is that concerns about pregnancy and disease can be better addressed via sex education rather than through a legal prohibition that teens themselves already apparently disregard in large numbers.

Interesting; as I mentioned, I don't endorse any of the items I post, but this seems detailed, thought-through, and worth considering.

But to what extent should the law track practice? Say there are a lot fewer 30-year-olds having sex with 16-year-olds than 18-year-olds having sex with 16-year-olds. Is that by itself that much of a reason for treating the 30-year-old and the 18-year-old differently? (Just questions that I thought might inform reader's thoughts, or future submissions; please don't respond specifically to those questions, except in the context of a broader post.)

I'll post one or two more items on this today, and save others for tomorrow and next week.

Or are you a political history SuperJunkie? Test yourself by guessing the election year from the electoral college map. Cool! Provided by Tom McMahon.

Several people, including Juan and Mike Rappaport (The Right Coast), suggested that I needn't worry about the litigation as military tactic by 50,000 detainees scenario, because Congress could still statutorily strip these detainees of the rights to petition for habeas. This would not be a suspension of the constitutional right to habeas corpus (which isn't allowed except in cases of invasion or rebellion), but rather a denial of habeas to people -- enemy aliens detained outside the U.S. -- who have only a statutory habeas corpus right, not a constitutional one.

How would this work? Well, remember that all of us can have three kinds of rights: (1) Constitutional rights, which are secured by the Constitution itself, and which can't be taken away by Congress (except when the Constitution specifically authorizes it, as with suspension of habeas during rebellion or invasion). (2) Statutory rights, which are granted (I speak here of legal rights, not moral rights) by statute, and which can be taken away by statute. (3) Common-law rights, which flow from judicial decisions, but which can be taken away by statute.

To give one non-habeas example, if the police illegally wiretap us, we might have a common-law claim of invasion of privacy against the police officer, a statutory claim under laws that restrict wiretaps, and a constitutional claim for violation of the Fourth Amendment. Our statutory and common-law rights may actually be broader than our constitutional rights (and, as to the wiretaps, the statutory rights are indeed broader). This might mean that when we sue based on the wiretap, the court might not even have to decide the scope of our constitutional rights, if it's clear that our statutory rights were violated. But the statutory and common-law rights may be repealed by legislative action; the constitutional rights can't be.

In Johnson v. Eisentrager (1950), the Supreme Court held that German soldiers caught by the Americans in China, and detained in Germany, didn't have either a statutory or constitutional right to habeas corpus. The statutory issue took little space; the Court concluded that the statute authorizing habeas petitions basically only gave jurisdiction to judges in the district where the person was being detained. This was an extension of Ahrens v. Clark (1948), which held the same, but specifically reserved judgment on whether this rule applied when the person was detained outside any judicial district (such as on a military base in Germany); Eisentrager essentially concluded that the rule did apply there, and there was no statutory right to habeas.

The Court then went on to conclude that the enemy detainees didn't have constitutional rights to habeas (or the rights of the Bill of Rights), either.

In the Guantanamo case (Rasul v. Bush), the Court said that -- because of more recent developments in the Court's interpretation of the habeas statute -- the Guantanamo detainees did have statutory rights to habeas. It therefore didn't have to explicitly decide whether they had constitutional rights to habeas. So it's possible that Congress could, if such habeas petitions prove too burdensome, limit the habeas statute to exclude them. That would then require the Court to answer the question whether such enemy detainees do indeed have constitutional habeas rights, and not just statutory ones.

That's a plausible argument -- but here's why I'm skeptical, and why I think that the Court's ruling may lead the Justices (and lower courts) to actually conclude, in my view wrongly and dangerously, that enemy detainees do have the constitutional right to habeas corpus review, and thus can continue to use litigation as a military tactic.

1. To begin with, just to make clear, the Court did not preclude the possibility of such a constitutional right. It didn't hold there was such a constitutional right (it only said there was a statutory right), but it didn't hold the opposite.

2. More importantly, the Court went out of its way to cast doubt on the broad applicability of Eisentrager (which, recall, is the case that did reject a constitutional right). For its purely statutory holding, the Court could have limited its treatment of Eisentrager to the purely statutory point: Recent cases have led the Court to interpret the statutory habeas provision more broadly than it was interpreted during the Eisentrager era (that's the argument captured in the Court's statement that "Because Braden overruled the statutory predicate to Eisentrager's holding, Eisentrager plainly does not preclude the exercise of [habeas] jurisdiction over petitioners' claims"); and since Eisentrager talked very little about statutory habeas, there's no reason to discuss Eisentrager further.

But the Justices didn't just do that; they began by distinguishing Eisentrager on the facts:

In reversing that determination [of a constitutional right to habeas], this Court summarized the six critical facts in the case [Eisentrager]:

"We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States."

On this set of facts, the Court concluded, "no right to the writ of habeas corpus appears."

Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

Only then did the Rasul majority go on to say "Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners' constitutional entitlement to habeas corpus. The Court had far less to say on the question of the petitioners' statutory entitlement to habeas review. Its only statement on the subject was a passing reference to the absence of statutory authorization: 'Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.'" And then the Court continued with its statutory analysis.

This strongly suggests to me that the Court is trying to limit Eisentrager's constitutional holding to a situation where some number (maybe all, maybe most, maybe some) of the Eisentrager factors are met. And if that's so, then there might indeed be a constitutional right to habeas in my hypothetical.

3. Also, while the Court is saying that its holding is statutory, actually its holding is much more common-law-like. Habeas law has generally been developed by judges, with relatively little participation by Congress (though in recent years the Congress has cut back in some measure on repeat habeas claims by criminals). The broadening of statutory habeas that the Rasul Court focused on was done not by Congress, but by the Court itself. So the Court may formally be interpreting the statute, but it is actually making a sort of statutory common law that has little to do with specific Congressional commands.

This isn't itself illegitimate, it's part of our habeas tradition, and the Court has done this in many other areas (such as antitrust law, or, historically, copyright fair use law, or evidentiary privilege law under the Federal Rules of Evidence). And such common-law decisionmaking might be supersedable by contrary Congressional statutes.

But it's important to realize that here the Court is exercising its own policy judgment, not just saying "Congress said we should do this, so we'll do this." The Rasul decision thus represents the Court's own views of sound habeas policy -- and, coupled with what I said above in item 2, it suggests that the majority might well apply the same views to the question of what habeas relief is constitutionally required.

Recall the key arguments made by the Court in Eisentrager as support (not the only support, since the Court also stressed history and other factors, but as a major support) for its decision (some paragraph breaks added):

To grant the writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence.

The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals.

It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands. The right of judicial refuge from military action, which it is proposed to bestow on the enemy, can purchase no equivalent for benefit of our citizen soldiers. Except in England, whose law appears to be in harmony with the views we have expressed, and other English-speaking peoples in whose practice nothing has been cited to the contrary, the writ of habeas corpus is generally unknown. . . .

That was the heart of Eisentrager's constitutional argument, but it is an equally strong prudential argument against recognizing, in common-law fashion, a hitherto unrecognized statutory habeas right. But the Rasul majority obviously didn't buy this. This suggests that they won't buy the Eisentrager constitutional argument in a constitutional habeas case, either -- and that the logic of their case might thus suffice to overrule or at least limit to its facts (again, see item 2 above) Eisentrager's constitutional holding.

So these are my attempts to respond to the very thoughtful points raised by Juan and Mike (see links at the start of this post). I recognize that indeed the Court might eventually hold that the enemy detainees in my hypo don't have a constitutional right to habeas, and that Congress can thus deny them habeas review if it thinks that such review would be too burdensome. I also recognize that some may argue that such review might not be that burdensome (if the Court concludes that lower courts can summarily deny habeas if the military provides even very slightly, purely military process to those who claim they're wrongfully detained). And I recognize that some may argue that, no matter how burdensome the review is -- how effective mass habeas petitioning may be as an enemy litigation tactic -- that's a price that we have to pay, to protect the rights of the alleged enemy combatants.

But I think that, largely for the reasons that Eisentrager gives (though with less focus on transportation, given modern technology), Rasul does indeed risk substantially hampering our military effort, and strengthening our future enemies' military effort. And I'm not at all sure that Congress can avoid this burden simply by limiting statutory habeas for enemy detainees to the constitutionally required minimum.

here.

I have not checked this myself, so I can't vouch directly for its accuracy; but I know Kopel's work well, and think highly of it (and of him).

So I've been thinking -- purely for academic reasons, I hasten to stress! -- about statutory rape laws. There's broad agreement that sex with people who are too young is wrong, and should be illegal, because children aren't mature enough to consent to sex.

But there's vast disagreement about what the proper cutoff age will be. California law prohibits pretty much all sex with under-18-year-olds. But (according to this source, seemingly created by people whose motivations may not coincide with mine, but which appears to be relatively accurate), California is in a tiny minority on this score: Only 6 states have a categorical age of consent of 18. (I set aside the special issue of sex between married couples; in most states, I believe, people can marry, at least with parental consent, before 18, and can then have sex.) Maybe the 18 cutoff is right, but it seems to me hard to say, given this, that it's the obviously right one.

What's more, Canada -- not generally thought of as a much lewder country than the U.S. -- has an age of consent of 14 (though perhaps some provinces set it higher; I'm not sure). It's 14 in many European countries, and flat 18 (or higher) thresholds seem to be unknown in any Western nations.

Now in some states and countries, there's a lower threshold for sex among young people: Sex with under-16-year-olds may be categorically banned, for instance, but sex with under-18-year-olds may be legal if the age difference between the parties is no more than, say, four years. But, as I said, the categorical illegal-to-have-sex-with-under-18-year-olds position -- which is the one that's most consistent with the "they lack the legal power to consent" theory -- is very much a minority. And in the U.S. a flat 16 cutoff seems to be the norm. Of course, that too could be wrong, and 18 could be better the rule.

So here's my question: What should the rule be, at least within American states, and what are the most cogent arguments that support it? I'm not asking what the constitutional rule should be; I'm also not asking, at least directly, what's likely to prevail politically. I'm asking what the right policy approach will be.

But this policy approach should take into account real human behavior (of the teenagers, of their prospective partners, of parents, of police, of prosecutors, and so on), and not just a perfect theoretical world. So one might want to consider:

1. The risk of physical harm from sex, such as pregnancy or sexually transmitted diseases.

2. The risk that teenagers who really aren't very mature will end up being emotionally and developmentally hurt.

3. The possibility that sex among teenagers is less likely to be manipulative or exploitative (whatever exactly that means) than sex between an older adult and a teenager -- and the possibility that this is a myth, and that 16-year-old boys are as likely to (or more likely to) want to and be able to exploit 16-year-old girls as 40-year-old men would be.

4. Whatever moral claims to making their own decisions you think the teenagers would have.

5. The possible harms and benefits of having a law that is vastly underenforced, and that is enforced when the prosecutor decides the case is especially egregious (and when other circumstances, such as unwanted pregnancy or parental complaint, bring the case to the government's attention).

6. And more.

Let's set aside, as I mentioned, the special case of sex within marriage. Let's also set aside sex among family members (blood or otherwise), or high school teachers having sex with students and the like. Also, note that I see "teenager" for convenience; one might certainly argue that the age of consent should be below 13, though I doubt that this will fly.

If you're interested, please submit (to volokh at law.ucla.edu) a concise but thought-through, detailed, and proofread argument for what you think is the right position. I promise to be quick about posting these items; I'll be able to do that because I won't have to aggregate the results, or decide whether I endorse the argument or not. I want to post interesting and thoughtful arguments, whether I think they're right or not. (And, yes, I will eventually post the results of the Ancient Rome question, but since I do have to aggregate and screen that, it's been on the back burner.)

Note, though, that I don't expect to post all or even most of the responses; please forgive me if I don't post yours (whether because I think it's a bit duplicative of others', or not specific enough, or some such). If you post on this and want me to link to your post, please e-mail me both the permalink URL and the text of the post; if I use it, I'll then include the text and also a link. If you don't want your name to be used in my post, please say so.

If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one. . . .

This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it. . . .

Of course, the Revolution was conducted by trained professionals, boys and girls -- don't try this at home.

Also from his First Inaugural Address; agree or disagree -- and in practice our legal and political system has generally rejected Lincoln's view -- it's eloquent and thought-provoking (paragraph break added):

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.

At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

I just read the Address for the first time -- too bad that it took me so long -- and thought the closing paragraph was quite moving:

I am loath to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

-- in his capacity as head of the Judicial Conduct and Disability Act Study Committee -- to complain about Judge Calabresi's remarks. Here's the letter. Seems like overkill to me, especially given the Judge's apology, but I thought I'd pass along the Congressmen's opposite view.

Michael Moore says the Saudis. Ralph Nader has a different view; I've quoted it here, but reader Duncan Frissell points to this even more explicit reference:

Independent presidential candidate Ralph Nader yesterday courted the Islamic vote by accusing Republicans and Democrats of ignoring the interests of Muslim Americans and describing the Congress and White House as "puppets of Israel." . . .

"The Israeli puppeteer travels to Washington and meets with the puppet in White House. He then goes down Pennsylvania Avenue and meets with the puppets in Congress," said Mr. Nader. The Israeli leader then "brings back millions of dollars" in aid to Israel, he said.

So which of these reliable worthies is right? Or could it be both, perhaps with the Queen of England (Lyndon LaRouche's bete noire) thrown in for good measure?

A TV station's Web site reports:

[An ACLU] lawsuit filed Tuesday challenges a new state law that effectively bans nude summer camps for teenagers, saying it violates the constitutional right to privacy. . . .

The law was passed in March in response to a weeklong residential camp for 11- to 18-year-olds last June at White Tail. . . .

"Legislators overreacted and in the process they substantially interfered with the right of families to make lifestyle choices," Virginia ACLU executive director Kent Willis said. "Using the overall logic of this law, legislators are now free to prevent children from swimming, playing baseball or riding a bus." . . .

Attorney General Jerry W. Kilgore said last year that such camps could attract pedophiles and child pornographers. . . .

I'm generally for giving parents lots of flexibility in how to raise their children. But even if this law is unwise (and I think the Attorney General's argument is not implausible, though I think nonconsensual nude photos via hidden cameras are a more likely risk than true child porn, which requires photographing lewd nudity, not just nudity as such), I really doubt that the Constitution protects such a right. And the fact that it's talked about as a matter of "privacy" just shows what a malleable and ultimately unhelpful word "privacy" has come to be.

Clayton Cramer has more on this, though I don't entirely agree with his analysis.

UPDATE: Curmudgeonly Clerk has some more specific legal points related to all this.

Nicholas Kristof (N.Y. Times) puts it well (thanks to Dan Gifford for the pointer):

In the 1990's, nothing made conservatives look more petty and simple-minded than their demonization of Bill and Hillary Clinton, who were even accused of spending their spare time killing Vince Foster and others. Mr. Clinton, in other words, left the right wing addled. Now Mr. Bush is doing the same to the left. For example, Mr. Moore hints that the real reason Mr. Bush invaded Afghanistan was to give his cronies a chance to profit by building an oil pipeline there.

"I'm just raising what I think is a legitimate question," Mr. Moore told me, a touch defensively, adding, "I'm just posing a question."

Right. And right-wing nuts were "just posing a question" about whether Mr. Clinton was a serial killer.

I'm against the "liar" label for two reasons. First, it further polarizes the political cesspool, and this polarization is making America increasingly difficult to govern. Second, insults and rage impede understanding. . . .

The judge this time is Paul Cassell, one of the leading conservative criminal procedure professors who was appointed to federal district court a couple of years ago. Prof. Douglas Berman (Sentencing Law and Policy reports):

I previously noted that law professors like to get the first word on important cases, and apparently that maxim holds even when they become judges. U.S. District Judge Paul Cassell of the District of Utah, who did interesting and provocative work as a law professor before he started doing interesting and provocative work as a judge, became (to my knowledge) the first federal judge to officially decalre the federal sentencing guidelines unconstitutional after Blakely. Here is a link to Judge Cassell's opinion in US v. Croxford, as well as a link to an article discussing Judge Cassell's ruling.

Update: I've just now had the chance to read Croxford and it is almost as breathtaking as Blakely itself. A must read for all Blakely followers today!

Go to Prof. Berman's post for the link to the opinion.

Who said that, just a few weeks ago?

(Click here for the answer.)

in The New Republic Online.

I've just updated my Excel spreadsheet of the Justices' votes in free speech cases to include 1994 to 2003 -- 10 years in which the Court's makeup has remained the same. Here are the results, with the Justices ranked from having the broadest aggregate view of free speech protection to the narrowest aggregate view.

For (1) a description of my method, (2) an explanation of why it makes some sense to look at Justices' overall votes on a wide range of free speech issues, and (3) an acknowledgment of the limitations of such aggregate results, see here.

As I stress in the article I cite to, I don't want to overstate the importance of such aggregate data. Still, many laypeople, journalists, and even scholars do make generalizations about the Justices (e.g., Thomas is a conservative and therefore has a narrow view of free speech, Breyer is a liberal and therefore has a broad view), and there is some value to such generalizations. If such generalizations are made, they should at least be accurate.

The Excel spreadsheet is still tentative; I'd love to hear any corrections that people might have. But before e-mailing me any proposed changes, please (1) make sure you've read my scoring method, (2) make sure you've recently read the case, and (3) tell me specifically which scores you think should be changed, and why.

Also, remember that I'm not counting whether I think the Justices reached the right result -- only whether they reached a more or less speech-protective result (and speech-protective in a pretty narrow sense, focusing on speech restrictions by the government and not on the effect on the overall level or quality of public speech).

The Ashcroft v. ACLU majority concludes that filters may well be a less speech-restrictive but equally effective alternative to the restrictions that the Child Online Protection Act imposes. That's why the Court effectively strikes down the Act. (The Court technically just upholds the preliminary injunction as not an abuse of the trial court's discretion, but it's clear that the Court agrees with the trial court on the merits; and though the Court remands for more factfinding, it's hard to see how more factfinding will really satisfy it.) Here's the Justices' argument:

A statute that "effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another ... is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve." When plaintiffs challenge a content-based speech restriction, the burden is on the Government to prove that the proposed alternatives will not be as effective as the challenged statute. . . . The purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal, for it is important to assure that legitimate speech is not chilled or punished. For that reason, the test does not begin with the status quo of existing regulations, then ask whether the challenged restriction has some additional ability to achieve Congress' legitimate interest. Any restriction on speech could be justified under that analysis. Instead, the court should ask whether the challenged regulation is the least restrictive means among available, effective alternatives. . . .

Blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children's access to materials harmful to them. . . . First, a filter can prevent minors from seeing all pornography, not just pornography posted to the Web from America. . . . In addition, the District Court found that verification systems may be subject to evasion and circumvention, for example by minors who have their own credit cards. . . . Finally, filters also may be more effective because they can be applied to all forms of Internet communication, including e-mail, not just communications available via the World Wide Web. . . .

That's correct in one way: Indeed, given the choice between (1) having only COPA (which would require commercial providers of obscene-as-to-minors material to put it behind credit-card checks or other proxies for age verification) and (2) having only the alternative of filters, option 2 is the best solution.

But I don't think that's the right analysis. If the "purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal" ("to assure that legitimate speech is not chilled or punished" unnecessarily, which must be what the Court is referring to), then the comparison must be between (1) having both COPA and filters and (2) having only the alternative of filters. If COPA and filters do a better job of serving the compelling interest in shielding children from sexually explicit material (and the majority didn't dispute that the interest was compelling, as the Court held in the past) than just filters, then COPA is necessary to get that extra level of protection.

Justice Breyer's dissent, then, was more sound (especially, I think, as to his third point):

Thus, the relevant constitutional question is not the question the Court asks: Would it be less restrictive to do nothing? Of course it would be. Rather, the relevant question posits a comparison of (a) a status quo that includes filtering software with (b) a change in that status quo that adds to it an age-verification screen requirement. Given the existence of filtering software, does the problem Congress identified remain significant? Does the Act help to address it? These are questions about the relation of the Act to the compelling interest. Does the Act, compared to the status quo, significantly advance the ball? (An affirmative answer to these questions will not justify "[a]ny restriction on speech," as the Court claims, for a final answer in respect to constitutionality must take account of burdens and alternatives as well.)

The answers to these intermediate questions are clear: Filtering software, as presently available, does not solve the "child protection" problem. It suffers from four serious inadequacies that prompted Congress to pass legislation instead of relying on its voluntary use. First, its filtering is faulty, allowing some pornographic material to pass through without hindrance. . . .

Second, filtering software costs money. Not every family has the $40 or so necessary to install it. By way of contrast, age screening costs less. . . .

Third, filtering software depends upon parents willing to decide where their children will surf the Web and able to enforce that decision. As to millions of American families, that is not a reasonable possibility. More than 28 million school age children have both parents or their sole parent in the work force, at least 5 million children are left alone at home without supervision each week, and many of those children will spend afternoons and evenings with friends who may well have access to computers and more lenient parents.

Fourth, software blocking lacks precision, with the result that those who wish to use it to screen out pornography find that it blocks a great deal of material that is valuable. . . . .

Few parents, even the best parents, so closely supervise their children and the children's friends that they know whether the computers at the friends' houses have filtering software installed (and installed securely enough that the children's friends can't easily circumvent it). Their children will at some point have access to an unfiltered computer. COPA would thus provide those children an extra level of shielding beyond what filters alone could do.

Now this doesn't mean that Justice Breyer is right on the bottom line. Perhaps the extra protection that COPA provides is too small to be worth the free speech cost. Perhaps on balance filtering alone will be more effective than COPA plus filtering because COPA will lull so many parents into a false sense of security that they'll stop using filtering. Perhaps Justice Breyer underestimates the free speech cost (I think he does, and I hope to blog more about that later). Perhaps the Court has been wrong in assuming that shielding children from sexually explicit speech is a compelling interest, or at least compelling enough to justify burdens on the ability to communicate to adults.

But I think Justice Breyer is right in the particular criticism he makes of the majority. By its formulation of the test, the majority is trying to make it seem like the restriction is unnecessary, and in fact not even beneficial (when compared to the easy alternatives). That makes the majority opinion look like it's giving the public the best of both worlds: It's protecting speech without really sacrificing any shielding for children.

Yet there's little reason to think that this is indeed so. More likely, the majority opinion does indeed in some measure diminish the level of shielding that children are likely to have.

That may well be right — we might have to sacrifice some shielding of children from sexually themed material, in order to protect free speech. But Justice Breyer is right that the majority is wrong to suggest that no such sacrifice is taking place here.

For more on this sort of mistake, by the way, which the Court also committed in Reno v. ACLU (1997), see this article of mine.

The Court of Appeals of Minnesota confronted an interesting question yesterday: May a trial court require a defendant to hide a cross that he was wearing, so that the jury couldn't see it? (The Minnesota Constitution has been interpreted as mandating the government to accommodate religious practices in many contexts; but even under the U.S. Constitution's current Free Exercise Clause rule, such a requirement may pose problems because it singles out religious symbols for special restriction.) Here's the relevant excerpt from the opinion:

Before trial, the prosecutor requested that Tate put a cross that he was wearing around his neck inside his shirt so that it was not visible to the jury, arguing that Tate's cross would be "sending a religious connotation to the jury." The district court then told Tate "to tuck [the cross] inside [his] sweater." . . .

Minnesota courts apply a balancing test when analyzing whether a state regulation infringes a right under the Freedom of Conscience Clause of the Minnesota Constitution. Courts must ask if (a) the objector's belief is sincerely held; (b) the state regulation burdens the free exercise of religious beliefs; (c) the state interest in the regulation is compelling; and (d) the state regulation uses the least restrictive means.

Tate argues that it is clear that the district court's restriction violated his right to the free exercise of religion because (1) he "strongly objected to the suggestion that he hide his cross, an indication that his religious beliefs are sincere" and (2) the district court failed to conduct its own inquiry into the substance and sincerity of his beliefs. See Joseph v. State, 642 So. 2d 613, 615 (Fla. Dist. Ct. App. 1994) (holding that the Free Exercise Clause entitled defendant to wear sweatshirt and jeans with religious pictures and names when trial court conceded that defendant's clothing was based on his religious beliefs and there was no evidence to support trial court's decision to prohibit defendant from wearing the clothing); In re Palmer, 386 A.2d 1112, 1114 (R.I. 1978) (holding that trial court's refusal to allow defendant to appear in courtroom while wearing a prayer cap unjustifiably infringed on his right to the free exercise of religion because trial court did not attempt to determine the sincerity of defendant's beliefs or whether such beliefs precluded the removal of the prayer cap in court).

Tate further asserts that the state failed to articulate any compelling state interest in having Tate hide his cross, although the district court expressed concern that if Tate did not hide his cross, the jurors would see it because they were "captives of the system and would not have that same right to express their religious beliefs or the right to refuse to have other's religious beliefs expressed to them." Tate maintains that it is unclear what interest was promoted by the hiding of his cross and that, further, no interest in courtroom decorum could outweigh his right to wear his cross. . . .

The court of appeals concluded that "because the district court did not conduct an inquiry into the substance and sincerity of Tate's beliefs, the district court's order forbidding Tate from openly wearing his cross was error." Presumably this means that if the trial court did conduct such an inquiry, and Tate was found to be sincere in his beliefs, he was entitled to wear the cross. But it's conceivable that the court of appeals is leaving open the possibility that the defendant could still be restricted because of some compelling interest in shielding jurors from religious symbolism. In fact, the court of appeals later characterized the district court's actions as "arguably infring[ing]" Tate's religious freedom, so the "arguably" suggests the question may still be open.

But in any event, the court held (probably correctly), that any such error didn't make Tate's trial unfair, and thus doesn't justify giving him a new trial.