Tim Sandefur (Freespace) has more on this.

In Stanley v. Georgia (1969), the Supreme Court held that private possession of obscenity (i.e., hard-core pornography) is constitutionally protected, partly because of the sanctity of the home. This happened at a time when the distribution of obscenity was thought to be constitutionally unprotected; and when in 1973 the Court confirmed that distribution of obscenity was unprotected, Stanley still remained good law. It has not been overruled or seriously questioned since (though private protection of child pornography can indeed be outlawed, see Osborne v. Ohio; I set aside child pornography for the purposes of this post).

OK, so the next question: Does it follow that, because you may not be punished for merely possessing obscenity at home, you also may not be punished for buying it to consume at home? The answer is pretty clearly "no" -- and, what's more, U.S. v. Orito (1973) held that you don't even have the right to transport it yourself for your own consumption. So buying it and taking it home with you can be made a crime, and even taking it with you to your new home when you move can be made a crime. (This means that a prosecutor who really wants to go after a possessor might be able to prosecute him for buying, and use the possession as powerful evidence that at some point it must have been bought and transported to the buyer's home; I'm not sure how successful such a theory would be -- it may be the case that the prosecutor might have to prove more details of the illegal purchase, such as where it took place, which he couldn't do simply based on possession alone, but I'm not positive about that.)

Likewise, United States v. Kuennen, 901 F.2d 103 (8th Cir. 1990), and United States v. Hurt, 795 F.2d 765 (9th Cir. 1986), both held that buying such material by mail can likewise be made a crime, citing Orito. (I suspect the buyers were prosecuted because the material actually was child pornography; I suspect the federal government wasn't that interested in pursuing individual buyers of adult hard-core porn. But the defendants were prosecuted under general obscenity laws, and the logic of the cases isn't limited to child porn.)

One can, of course, argue that downloading porn into your home should be treated more like mere possession, and less like transportation or even mailing, since the electronically downloaded material isn't physically available outside the home. It's a weird distinction to draw, but this field is full of weird distinctions. My guess is that most courts won't buy that distinction, and will hold the initial downloading to be punishable even though the subsequent possession is not.

In any event, that's why in my post below, I noted that it's possible that people could be prosecuted for downloading obscenity into their own homes. But fortunately that seems to be a pretty academic question right now, since few prosecutors seem likely to be interested in going after private buyers in such situations (again, unless child pornography is involved).

I am, I suspect, one of the few people in America who had a license to access pornography. Our rarity comes from the fact that most people in practice don't need such a license: In theory, accessing obscene material on the Web, even from your own home, might subject you to criminal liability (that's an open question), but in practice no-one is going to prosecute you for that. (The main exception is if you're trying to access child pornography -- but there, licenses to access child porn are scarce because the government isn't interesting in handing any out, though of course some enforcement officials must be authorized to access such material in the course of their enforcement duties.) In any event, I like to think that the scarcity makes my license extra super-duper cool.

In Fall 2001, I was visiting at the George Mason University law school, which is a Virginia state public institution; and Virginia at the time had a law saying that state employees can't use state-owned computers to access porn (not just constitutionally unprotected obscenity or child pornography, but also otherwise protected sexually explicit material) unless their agency head certified that they needed to do so for work reasons.

As it happened, I was working on some material related to cyberspace, pornography, and the First Amendment, and actually did have to access some such sites for work reasons (for instance, to confirm examples of misleading domain names such as whitehouse.com, as well as examples of "mousetrapping" sites that made it hard for you to effectively close the window in which they were opened). The dean, a very reasonable and pleasant fellow (and a friend of mine), promptly gave me such a letter -- I just ran across the letter in unpacking from an office move, which is prompting this message. I now cherish it as the rare document that it is.

Stop the Bleating (note the connection to the American Shepherd post below) reports. Take the speculation about the judges' likely preferences with a grain of salt -- it is, as the blogger makes clear, indeed sheer speculation, and it's quite hard to infer judges' views on this question from their general political leanings.

Last week, I posted this item (go to the earlier post to see the links):

I've had the nastygram sent by the Pantagraph to Michael Moore, complaining about Moore's alleged partial fictionalization of a Pantagraph headline put up here. (The page will disappear soon, so you might want to avoid linking directly to that page; before that happens, I'll copy it to a permanent home and update this post accordingly, but I'm on the road now and can't do that.)

Moore's Fahrenheit 9/11 apparently portrayed the Pantagraph as saying, in a large headline accompanying a Dec. 19, 2001 news story, "LATEST FLORIDA RECOUNT SHOWS GORE WON ELECTION"; the Pantagraph says that this was a caption accompanying a Dec. 5, 2001 letter to the editor, and thus just the newspaper's summary of what the letter was saying, rather than the newspaper's characterization of the actual news. . . .

Moore's lawyers have apparently now responded; I haven't seen a copy of their letter, but here's the excerpt from the Pantagraph's latest article on this:

New York-based lawyer Devereux Chatillon of the law firm Sonnenschein Nath & Rosenthal sent the letter to J. Casey Costigan, the Bloomington attorney representing the newspaper. . . .

[T]he letter claims Moore did nothing "misleading" when the headline ("Latest Florida recount shows Gore won election") that originally appeared above a Dec. 5, 2001, letter to the editor was altered in both the font and size of the type for the movie and made to look like a news story from a Dec. 19, 2001, edition of The Pantagraph. . . .

Hmm -- seems to me that quoting a headline to a letter to the editor without making it clear that it came from the letter-writer is indeed misleading; the reasonable viewer would assume that the newspaper is endorsing the assertion, rather than simply characterizing it. I can certainly see why a lawyer contemplating litigation would refuse to make such a concession; but it seems to me that self-described documentary creators should be held to a somewhat different standard.

Nick Gillespie (Reason's Hit & Run) reports on the Department of Homeland Security's new mascot:

Reports USA Today:

Starting next month, children in grades 4 though 8 and employers nationwide will be asked to help get families and companies better prepared to respond to a crisis.

In schools, on the Internet and in TV and radio ads, youngsters will be introduced to a new Homeland Security mascot: a dog (an American shepherd) that will be named in a contest. The campaign, using the dog and a set of Ad Council advertisements, will encourage families to develop an emergency plan and talk about where kids should go, who will pick them up and how they will make contact.

. . . [T]here exists some real questions as to whether there is in fact an "American shepherd" breed of dog. There is something called the American Tundra Shepherd, a mix of the Alaskan Tundra Wolf and German Shepherds (those German Shepherds have ways of making you talk).

(Go to the Hit & Run post for links.)

So here's my question (one about symbolism, but the whole point of mascots, whether Lions or Banana Slugs, is symbolism): If the Homeland Security mascot is an "American shepherd," what does that make us?

UPDATE: Reader Mike Zorn points to a site describing American Shepherd White. And, come to think of it, the tundra is kind of white, too. Aha! Now the truth comes out — it's a sinister racist plot.

Warning: Will only be of interest to the very few readers who are familiar with cert pool memos.

Slate's Explainer has a nice item explaining nonunanimous criminal juries, which have indeed been held to be constitutional. I'd just add two small items:

1. The Sixth Amendment has been read as mandating unanimous juries in federal courts, though not state courts (one of the relatively few ways in which the Bill of Rights has been seen as applying differently to state governments via the Fourteenth Amendment than to the federal government). See Justice Powell's separate concurrence in Apodaca v. Oregon, which was the controlling opinion on this question.

2. Even in state court, unanimity is required if a state uses 6-person juries. See Burch v. Louisiana. Six angry men (out of six) are enough, but five won't do.

So holds the California Supreme Court, in an opinion that I'm just starting to read. Here's Howard Bashman's (How Appealing) summary:

The vote on declaring previously performed marriages void was 5-2; the court was unanimous in holding that the Mayor of San Francisco lacks the power going forward to allow same-sex couples to marry in violation of existing California law. As a small consolation, same-sex couples whose marriages are dissolved as a result of today's ruling are entitled to a refund, upon request, of all marriage-related fees that they have paid.

And here's the court's introduction:

We assumed jurisdiction in these original writ proceedings to address an important but relatively narrow legal issue — whether a local executive official who is charged with the ministerial duty of enforcing a state statute exceeds his or her authority when, without any court having determined that the statute is unconstitutional, the official deliberately declines to enforce the statute because he or she determines or is of the opinion that the statute is unconstitutional.

In the present case, this legal issue arises out of the refusal of local officials in the City and County of San Francisco to enforce the provisions of California's marriage statutes that limit the granting of a marriage license and marriage certificate only to a couple comprised of a man and a woman. The same legal issue and the same applicable legal principles could come into play, however, in a multitude of situations. For example, we would face the same legal issue if the statute in question were among those that restrict the possession or require the registration of assault weapons, and a local official, charged with the ministerial duty of enforcing those statutes, refused to apply their provisions because of the official's view that they violate the Second Amendment of the federal Constitution. In like manner, the same legal issue would be presented if the statute were one of the environmental measures that impose restrictions upon a property owner's ability to obtain a building permit for a development that interferes with the public's access to the California coastline, and a local official, charged with the ministerial duty of issuing building permits, refused to apply the statutory limitations because of his or her belief that they effect an uncompensated "taking" of property in violation of the just compensation clause of the state or federal Constitution.

Indeed, another example might illustrate the point even more clearly: the same legal issue would arise if the statute at the center of the controversy were the recently enacted provision (operative January 1, 2005) that imposes a ministerial duty upon local officials to accord the same rights and benefits to registered domestic partners as are granted to spouses (see Fam. Code, § 297.5, added by Stats. 2003, ch. 421, § 4)), and a local official — perhaps an officeholder in a locale where domestic partnership rights are unpopular — adopted a policy of refusing to recognize or accord to registered domestic partners the equal treatment mandated by statute, based solely upon the official's view (unsupported by any judicial determination) that the statutory provisions granting such rights to registered domestic partners are unconstitutional because they improperly amend or repeal the provisions of the voter-enacted initiative measure commonly known as Proposition 22, the California Defense of Marriage Act (Fam. Code, § 308.5) without a confirming vote of the electorate, in violation of article II, section 10, subdivision (c) of the California Constitution.

As these various examples demonstrate, although the present proceeding may be viewed by some as presenting primarily a question of the substantive legal rights of same-sex couples, in actuality the legal issue before us implicates the interest of all individuals in ensuring that public officials execute their official duties in a manner that respects the limits of the authority granted to them as officeholders. In short, the legal question at issue — the scope of the authority entrusted to our public officials — involves the determination of a fundamental question that lies at the heart of our political system: the role of the rule of law in a society that justly prides itself on being "a government of laws, and not of men" (or women). . . .

To avoid any misunderstanding, we emphasize that the substantive question of the constitutional validity of California's statutory provisions limiting marriage to a union between a man and a woman is not before our court in this proceeding, and our decision in this case is not intended, and should not be interpreted, to reflect any view on that issue. We hold only that in the absence of a judicial determination that such statutory provisions are unconstitutional, local executive officials lacked authority to issue marriage licenses to, solemnize marriages of, or register certificates of marriage for same-sex couples, and marriages conducted between same-sex couples in violation of the applicable statutes are void and of no legal effect. Should the applicable statutes be judicially determined to be unconstitutional in the future, same-sex couples then would be free to obtain valid marriage licenses and enter into valid marriages.

The second to last paragraph may be controversial, and probably should be: There's a good argument that all government officials should have an independent duty to follow the state and federal Constitutions as they understand them — at least absent a clear court order to the contrary — and not just do what they think (rightly or wrongly) is unconstitutional simply because no court has yet held it unconstitutional. On the other hand, the California Constitution does have a special provision on this point (art. III, sec. 3.5) that supports the California Supreme Court's position if one treats city officials as an "administrative agency," "An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power: (a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of its being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional. . . ." [UPDATE: I've just finished reading the opinion, and it turns out that the California Supreme Court does not directly rely on this provision, and thus doesn't decide whether city officials are administrative agencies. Rather, the court holds that executive officials even in the absence of art. III sec 3.5 have a duty to follow statutes unless they've been held unconstitutional by a court (subject to a few exceptions not applicable here).]

But in any event, I think the court's introduction is pretty effective rhetorically, both accurately describing the legal issue for readers, and defending it against some of the most obvious political criticisms. If I were writing a textbook on judicial rhetoric, I'd probably include this as a good example.

The San Francisco Chronicle reports:

It wasn't a four-letter word, but it was close enough to cause a stir at the National Scrabble Championship Thursday.

In the final round, eventual champion Trey Wright played the word "lez," which was on a list of offensive words not allowed during the tournament.

Normally, no word is off-limits, but because the games were being taped for broadcast on ESPN, certain terms had been deemed inappropriate, including the three-letter slang for lesbian.

"There are words you just can't show on television," Scrabble Association Executive Director John Williams said. . . .

Yes, I know the Third Edition of the Scrabble Dictionary excludes some offensive words. I'm not wild about that, but at least I can understand the "game the whole family should be able to play" theory, given that some families don't want their kids using those words even in a lexicographic context. But this is just silly.

Thanks to Dan Gifford for the pointer.

Here's an interesting abstract I just saw (go here to download the paper):

JOHN MCMILLAN, Stanford University - Graduate School of Business; CESifo (Center for Economic Studies and Ifo Institute for Economic Research)

PABLO ZOIDO, Stanford University - Graduate School of Business

April 2004

CESifo Working Paper Series No. 1173

Which of the democratic checks and balances -- opposition parties, the judiciary, a free press -- is the most critical? Peru has the full set of democratic institutions. In the 1990s, the secret-police chief Vladimiro Montesinos systematically undermined them all with bribes. We quantify the checks using the bribe prices. Montesinos paid television-channel owners about 100 times what he paid judges and politicians. One single television channel's bribe was four times larger than the total of the opposition politicians' bribes. By revealed preference, the strongest check on the government's power was the news media.

I haven't read the paper (and probably won't have the time to), and I realize that there are obvious objections to this sort of argument -- no need to pass them along. I just thought that it's an interesting research project, a creative though necessarily imprecise way at getting at some soft variables, and potentially interesting to some readers.

The Doody family from Wolverhampton has been crowned The Faggot Family in a national competition, and to kick off their reign they will launch National Faggot Week. . . .

The competition was organised by . . . Mr Brain's Faggots. . . .

OK, I admit it, the ellipses end up concealing the real explanation. (Incidentally, for those who think this is a hoax, it doesn't seem to be, and the Oxford English Dictionary does indeed confirm that "faggot" has the definition that the story references.)

Thanks to my friend Ted Balaker for the pointer.

(I've blogged about this a year or two ago, but it seems worth returning to.)

Lots of people have argued that sexual orientation discrimination should be treated just like race discrimination. Sexual orientation and race, the argument goes, are both characteristics that are almost entirely irrelevant to a person's ability to do certain things, and are outside the person's control. The sexual orientation discrimination argument also has to take the next step, which is to explain why discrimination based on sexual conduct should be treated the same way, since obviously homosexuals are free not to engage in homosexual conduct. But there too the race discrimination analogy is helpful; race discrimination laws bars discrimination based on people's relationships with people of some race (so it's illegal to fire people because they're dating a black, or just dating outside their race).

Now of course there are various responses to this. There are factual disagreements with the assumptions of the argument I outlined above — for instance, some say that sexual orientation is within a person's control; others say that it is relevant more often than some might think. There are also other kinds of disagreement, too. But for now, I want to raise one point: There are multiple possible analogies to sexual orientation discrimination.

1. One, of course, is standard race and ethnicity discrimination, which is banned in many situations, and socially condemned even in many cases where it's legal. (For instance, if someone says "I'd like to have dinner tonight just with white people," many people would condemn this attitude even if they agree that the person should have the legal right to make that choice.)

2. But there's also sex discrimination. Sex is also outside a person's control (unless one goes through very onerous procedures), and also largely irrelevant to a person's abilities. Yet sex discrimination is banned in fewer situations, and socially condemned in fewer situations. (For instance, if someone says "I'd like to have dinner tonight just with the boys / the girls," many fewer people would condemn that.)

3. There's also height discrimination, and other aspects of appearance discrimination. Height is also pretty much outside a person's control, as are many (though of course not all) other aspects of appearance, and it's also largely irrelevant to a person's physical abilities, with a few exceptions. Yet height discrimination is legal almost everywhere and in almost all contexts (even when there's no reason other than the discriminator's or others' preference for it), and it's rarely socially condemned. (One might think that someone who discriminates based on height is shallow or is acting in an unfair way, but such people are rarely harshly condemned.) Note also that, to the best of my knowledge, height discrimination against short men is indeed pervasive, both in business and in social life, and quite substantial in magnitude. Likewise with discrimination against ugly people.

One can of course add other categories, though some (such as age or disability) are fairly often relevant to a person's ability, and others (such as religion or marital status) are more easily changeable though the legal system's view is that people shouldn't be pressured into changing them. But these three categories are enough, I think, to show that there are several different ways in which the legal system treats discrimination based on immutable and largely irrelevant attributes. And this suggests that when people are arguing "sexual orientation discrimination should be treated like race discrimination," they should also explain why it shouldn't be treated like sex discrimination or height discrimination. (Of course, some might think that all these kinds of discrimination should be largely forbidden and socially condemned, but that's a different and more ambitious argument from the one I'm responding to. I'm dealing here just with the argument that it's wrong, on equality or logical consistency grounds, to treat sexual orientation discrimination differently from the way race discrimination is treated.)

Of course, this point is especially apt as to the Boy Scouts controversy. They are, after all, the Boy Scouts — a group that discriminates based on sex, that is legally allowed to discriminate based on sex, and that most people (I suspect) would not condemn for discriminating based on sex (either in choice of group leaders or in choice of scouts). Likewise for the Girl Scouts. So if one is trying to criticize the Boy Scouts' sexual orientation discrimination by analogy to race discrimination, one has to also explain why the sexual orientation discrimination can't be defended by analogy to sex discrimination.

Some people, responding to my post yesterday on gay rights legislation, questioned whether antidiscrimination laws restrain others' liberty.

Well, of course they do. Your right to choose whom to associate with, whom to do business with, whom to select to speak for you, and so on is an important part of your freedom of action, just as is your right to build a home on your property, or to ingest or not ingest what substances you wish, or to pursue whatever profession you like, or a wide range of other freedoms. That's true even if the selection is for someone who does relatively remote and impersonal tasks (for instance, when you choose whether or not to patronize some pizza company, based for instance on your dislike of the company's politics). It's especially true when it involves choosing who will work closely with you (as a partner or a secretary), who will help raise your children, who will be a student or a teacher at your educational institution, who will speak on your behalf or on behalf of the organization to which you belong, who will live with you as a roommate, and so on — all things that many antidiscrimination laws affect.

Nor is this interference with freedom of choice eliminated when the legal system concludes that certain choices are "irrational." Your freedom includes the freedom to do things that others think are irrational. People may think that using certain drugs, overeating, riding a motorcycle without a helmet, riding a motorcycle with a helmet, or choosing to marry or date someone based on race or height or weight are "irrational" choices. But restraints on such supposedly "irrational" behavior are still restraints on liberty.

Partly this is because others may err about what's irrational, or may ignore others' preferences that are nonrational (e.g., taste in food, entertainment, people, etc.) but still quite important. And partly it's because freedom means the freedom to make choices that others think silly as well as those that others think wise.

And all this just involves the direct restraint on liberty. There are also indirect ones: For instance, banning sexual orientation discrimination in employment makes it harder for employers (whether big or small ones) to make employment decisions that have nothing to do with sexual orientation. The legal system is far from a perfect finder of truth, especially when it comes to people's motives; even employers who don't discriminate on one of the prohibit bases face (1) the intrusion into liberty and privacy that results when they have to defend their actions in court, (2) occasional incorrect discrimination verdicts that take away their property even when they didn't discriminate, and (3) the resultant deterrent effect even on nondiscriminatory decisions on their part.

Now of course one can still argue that these restraints on liberty (1) aren't that huge, and (2) are justified by the benefit that the restraint yields to others, or by the harm that the liberty inflicts on others. One can therefore conclude that people shouldn't have the liberty to discriminate, at least in certain ways. That's a perfectly plausible argument (though the general version of it is far too big an issue for me to deal with on the blog). And of course it's an argument that is often accepted both as to some antidiscrimination laws and as to many other laws, whether copyright and patent laws, libel laws, or even laws banning theft, trespass, rape, and murder, all of which do affect people's liberty of action.

But it seems to me that we shouldn't deny that antidiscrimination laws do burden liberty. The broad gay rights program isn't just about increasing the freedom of gays; it is also about decreasing the freedom (though its backers of course think that this is a legitimate decrease) of those who don't want to associate with gays in various ways. Thus, "Why do you oppose our proposals? It doesn't affect you if gays are free to have sex the way they please, marry, adopt, etc." is not an adequate argument — the broad program would affect others, and the first steps (including ones I support despite this danger, such as decriminalizing homosexual conduct or allowing same-sex marriage) do make it politically easier to enact the next steps.

As blog readers know, I strongly oppose anti-sodomy laws; I tentatively support gay marriage; I think same-sex couples should be allowed to adopt; and I'm generally quite skeptical of government discrimination against homosexuals.

At the same time, I think the anti-gay-rights forces have a very good point when they worry about gay rights interfering with the rights of those who oppose homosexuality. We know that many parts of the gay rights movement aren't just after liberty from government oppression, or even getting equal treatment from the government. They also want to ban private employers and other entities (landlords, places of public accommodation, and others) from discriminating against homosexuals, which is to say to require them to associate with homosexuals.

Many (though not all) in the gay rights movement want to ban private associations, such as the Boy Scouts, from discriminating based on sexual orientation. Most recently, there is now talk of prohibiting judges from belonging in groups that discriminate based on sexual orientation, which may bar them from participating in the Boy Scouts.

The gay rights movement has won many victories, and has influenced many people even where it hasn't (yet) won -- such as in the gay rights debate -- by essentially asking "How does it hurt you?" How does it hurt me that two homosexual adults can have consensual noncommercial sex with each other in their own home? How does it hurt me that they can get married, or adopt children? (One can say that it may hurt their children, but many people, myself included, are skeptical about that.)

But that question ignores those gay rights proposals that would reduce the liberty of others -- and it ignores the way the various proposals are, as a matter of practical politics, interconnected. As a logical matter, it's possible to bar the government from discriminating based on sexual orientation, but to leave private parties free to do so. But as a psychological matter, many people's judgments about what private people (or government officials acting in their private capacity) may do are affected by what the government may do. The more homosexual relationships are legitimized, the more many (not all, but many) people in the middle of the political spectrum on this question will condemn even private discrimination against homosexuals.

The analogy to race discrimination that gay rights advocates often cite is really quite apt here. People who oppose homosexuality are understandably worried that their views will become as stigmatized -- and acting on those views will in many ways become as illegal -- as racist views are now. And one way to fight this possibility is to fight it early, for instance in the marriage debate, rather than to wait until that's lost and the gay rights movement moves even more firmly towards restricting the private sector.

Now of course if one thinks that the law should ban sexual orientation discrimination by private employers, private landlords, and private associations like the Boy Scouts, and that judges and other government officials should be barred from participating in the few heterosexual-only groups that remain, then one would hardly worry about these effects. Also, if one thinks (as I do) that some of the gay rights proposals are good ideas but others (such as interference with judges' ability to participate in the Boy Scouts, or outright prohibition on discrimination by the Boy Scouts) are bad ideas, one might conclude that their benefits outweigh the speculative though not implausible costs that these good proposals might politically enable the bad ones.

And, finally, one should realize that sometimes fighting too implacably against every proposal may prove counterproductive: For instance, if the anti-gay-rights movement tried hard not just to reverse Lawrence v. Texas but actually start harshly enforcing sodomy laws, the result would likely weaken the political power of the movement rather than strengthen it (and of course I think such an approach would be morally wrong as well).

But in any event, one should acknowledge that the "It doesn't hurt you, so why should you object?" argument omits an important point: The broad array of gay rights proposals would restrict the liberty and equality of those who oppose homosexuality -- and this array is more of a package deal than we might think, since the more proposals the gay rights movement wins on, the easier (generally speaking) it would be for it to win on other proposals.

We might be able to envision a regime of optimal liberty, where the rights of both homosexuals and those who oppose homosexuality are equally respected -- many libertarians, for instance, would do so by distinguishing restrictions on government action from restrictions on nongovernmental action. But even if we can identify a point that we ourselves endorse, that point may as a practical matter be politically unstable, so that if the gay rights movement gets to that point (wherever the point is), it will in practice end up also getting more, and cutting into the liberties of others. And it thus makes perfect sense that those who oppose some of those proposals would fight all of them, precisely because once some are enacted, the others will become politically more appealing.

So the result is pretty sad: Maybe we do have, as a practical matter, a choice between a regime that suppresses the liberties of homosexuals and benefits those who don't approve of homosexuality, and a regime that benefits homosexuals and suppresses the liberties of those who don't approve of homosexuality. Perhaps it's clear that one of the options, despite its flaws, is better than the other; as I said, I strongly support some parts of the gay rights program and tentatively support some others, despite the risks that I identify. But I have to acknowledge that my opponents on this do have legitimate reason to worry about their liberties.

The AP reports:

A year after the Sept. 11 attacks, the Justice Department obtained video surveillance tapes suggesting terrorists were targeting Las Vegas casinos but authorities never alerted the public as they discussed whether a warning might hurt tourism or increase the casinos' legal liability, internal memos show.

The mayor of Las Vegas said Monday he was never told about the tapes uncovered in Detroit and Spain in 2002, and had been assured by the FBI there were no credible threats against his city. "If I were told, I would certainly tell the public," Mayor Oscar Goodman said.

But memos and e-mails between federal prosecutors, obtained by The Associated Press, say Las Vegas authorities were alerted to some of the footage by Aug. 30, 2002. Later, numerous local law enforcement officials were invited by a senior FBI agent to view the footage, but most spurned the invitation, the memos say.

(Yes, I'm just trying to be cute with the post headline; I have no particular reason to think that the owners of the Flamingo are particularly culpable here, even if some casino owners are.)

One document quotes a federal prosecutor in Las Vegas as saying the mayor was concerned about the "deleterious effect on the Las Vegas tourism industry" if the Detroit evidence became public. Another memo states the casinos didn't want to see the footage for fear it would make them more likely to be held liable in civil court if an attack occurred. . . .

I doubt that such deliberate ignorance could indeed diminish the casinos' liability — it might actually increase it (unless they thought they could hide their refusal to see footage). On the other hand, it's not clear whether the memo was reporting the casinos' expressed motivations, or was just guessing at the motives:

"The information, unfortunately, was not taken as seriously as we believed it to have been," Assistant U.S. Attorney Richard Convertino told AP in an interview, recounting how only two local police officers took up the FBI agent's offer to see the tape.

"The reason that he (the FBI agent) was given for the low turnout was because of liability. That if they heard this information they would have to act on it. It was extraordinarily unacceptable and absolutely outrageous," Convertino said. . . .

It's certainly possible that the agent's source was just speculating, and the real problem was that the casinos weren't adequately informed about the tapes, or someone else along the line dropped the ball.

Thanks to Jennifer Ash (Mellow-Drama) for the pointer.

We're delighted to welcome Todd Zywicki, one of our earliest coconspirators, back to the blog. Todd is a lawprof at George Mason, and he spent the last year-plus as Policy Planning Director at the Federal Trade Commission (which is why he had to leave us). Here's what Todd has been up to while at the FTC, from the FTC's farewell press release:

Zywicki's leadership of the FTC's Office of Policy Planning yielded impressive results, both in the area of competition and consumer protection advocacy and interagency policy coordination. He headed up FTC's efforts regarding the filing of comments on the states' below-cost gasoline rules, over-expansive definitions of the unauthorized practice of law by state bar associations, direct-to-consumer drug advertising, and qualified health claims for food products. In addition, he coordinated the development of the FTC's comments before the Commodity Futures Trading Commission regarding the application of U.S. Future Exchange, L.L.C., for contract market designation.

During Zywicki's tenure, the FTC also issued two important reports, "Possible Anticompetitive Barriers to E-Commerce: Wine" and "Possible Anticompetitive Barriers to E-Commerce: Contact Lenses." Following the issuance of the first report in 2003, Zywicki testified before the U.S. House Subcommittee on Commerce, Trade, and Consumer Protection's Committee on Energy and Commerce on "E-commerce: The Case of Online Wine Sales and Direct Shipment." He also participated in the Commission's efforts to protect consumers through class action reforms.

Todd will be visiting at Georgetown this coming school year.

De Novo is collecting submissions for an interesting feature:

Law students do all sorts of things over the summer, ranging from positions at top-ranked law firms to . . . positions at slightly lower-ranked law firms. Oh, and some other stuff too. We want to hear about your summer experiences, wherever you were -- the DA's office, clerking for a judge, public interest organizations, researching for a professor, and firms of all shapes and sizes, as well as people who took the roads less traveled. Tell us about the good, the bad, and the ugly of all the opportunities with which law students are confronted with each year, but about which they are never quite informed enough to know if they're making the right choice.

De Novo encourages all rising 2Ls and 3Ls to contribute posts about their experiences for our next action-packed symposium, scheduled to begin on August 23rd. Send your stories to submit-at-blogdenovo.org. Pass on the word to non-bloggers, and non-blog-readers. Also note: anonymity is cool with us.

Someone e-mailed me about these two cases, and I found that I'd mislaid the citations. To keep that from happening again, and to help others who are interested in the subject, I thought I'd blog them: They are People v. Upshaw, 190 Misc. 2d 704, 741 N.Y.S.2d 664, 2002 N.Y. Misc. LEXIS 203, and People v. Harvey, 2001NY078439, noted at N.Y.L.J., Feb. 1, 2002 (available on LEXIS); see this AP story for the details. The theory behind the convictions was that the speech drew a hostile crowd, which looked like it was going to turn to violence; I think that the Supreme Court decision in Feiner v. New York (1951), which authorized these sorts of prosecutions, is mistaken, and has been undermined by later cases, but there's still some controversy over that, as these cases show.

The cases are noteworthy because they are among the very few prosecutions for pro-terrorist speech since September 11, 2001.

UPDATE: Prof. Matt Bosworth reports that the Harvey prosecution was ultimately dropped by the New York D.A.'s office. See N.Y.L.J., Apr. 26, 2002.

My friend Ilya Somin, a George Mason lawprof who filed an amicus brief in the case, has this op-ed praising the Michigan Supreme Court's decision. He also points me to contrary view by Wayne State lawprof John Mogk, and passes along this response to Mogk:

While it is possible to have reasonable disagreement over Poletown, Professor Mogk's op ed is not entirely accurate in its facts. For example, it is not true that all the other 25 largest cities in the nation have the power to condemn private property for transfer to other private parties solely for economic development. The Illinois, Florida, and California supreme courts have all held that economic development by means of increasing the profitability of a private business is NOT by itself a sufficient justification for condemnations that transfer property to private hands. So L.A., San Francisco, San Diego, Chicago, and Miami, among other major cities, have somehow managed to prosper without this power. See Southwestern Ill. Dev. Auth. v. National City Env., 768 N.E.2d 1, 9 (Illinois), cert. denied, 537 U.S. 880 (2002) (explaining that a "contribu[tion] to economic growth in the region" cannot be a legitimate ground for condemnation because "incidentally, every lawful business does this"); Sweetwater Valley Civic Ass'n v. City of National City, 555 P.2d 1099, 1103 (California 1976) (holding that condemnation can "never can be used just because the [city] considers that it can make better use or planning of an area than its present use or plan" and that "it is not sufficient to merely show that the area is not being put to its optimum use, or that the land is more valuable for other uses"); Baycol, Inc. v. Downtown Dev. Auth., 315 So.2d 451, 457 (Florida 1975) (holding that a "'public [economic] benefit' is not synonymous with 'public purpose' as a predicate which can justify eminent domain").

And, of course, if Poletown-style takings are really the key to urban prosperity, as Professor Mogk suggests, why did Detroit (as he also points out) continue to be the nation's poorest large city in the 23 years Poletown was in force?

I sure hope this Jerusalem Post report is correct:

It's not so much what Zakariya Zubeidi, the fugitive leader of the West Bank Aksa Martyrs Brigades, says, but how he says it. Zubeidi speaks in the vacant tones of a ghost.

And four years after he first picked up a rifle, this peace-activist-turned-local-hero-and-killer eulogized the Palestinian intifada in words similar to those in which he described himself.

"The intifada is in its death throes. These are the final stages — this I can confirm," he said on Wednesday. . . .

The intifada has vented its suicidal wrath on Israelis, but in recent weeks criticism of the Palestinian Authority has ensconced itself in common parlance. "Not only was the intifada a failure, but we are a total failure. We achieved nothing in 50 years of struggle; we've achieved only our survival."

And as terrorist warfare slows to a gasping halt, Zubeidi sees the violence turning inward. Last week, Zubeidi decided to vent his frustration by torching the offices of his "friend," Kadura Musa, Jenin's governor and its Fatah leader. Zubeidi claimed he sought to highlight the reforms necessary for his society; his critics said he was pining for attention.

One of the Palestinian's few self-critical leaders, Zubeidi explained: "My position is neither legal nor legitimate. But an independent judiciary would be able to stop the corruption and enact the reforms we need to save this society." . . .

[T]he infamous Aksa Martyrs Brigades are hardly brigades anymore. With 160 of his men in prison, and another 25 killed in battles with the IDF, Zubeidi's newer recruits are often teenagers, some of whom attend school during the day and take potshots at the nearby settlements of Ganim and Kadim at night. . . .

Thanks to Si Frumkin for the pointer.

from my former student Michael Lopez. I'd particularly stress 1, 2, 4, 5, and 10.