Jonathan Rowe points to this column by Les Kinsolving (WorldNetDaily), complaining about Vice President Cheney's support for his lesbian daughter:

[W]hat if Mr. One-Heartbeat-Away in the White House had a daughter who was a masochist who fell in love with a sadist? (And she loved being beaten, as much as her lover enjoyed beating her.)

Would Mr. Cheney have announced in Davenport his support of weddings with leather dresses, whips and chains?

A later Kinsolving column elaborated:

If sodomists and sadomasochists should be allowed to obtain marriage licenses, what other happiness-pursuers should be denied? . . .

[Gay rights advocate Franklin] Kameny concludes his e-mail by affirming:

"No persuasive or credible justification or proof has been presented for limiting or forbidding marriages between sadists and masochists, or between two men or two women. Therefore such couples have the right to have their marriages formally and legally recognized by what are THEIR governments also."

Marriage licenses for sadomasochists.

It's interesting, however appalling, to see what's next on the agenda of the Sodomy Lobby.

Sounds pretty shocking, no? Well, I'll tell you something worse: Doubtless due to the sinister machinations of the Sodomy Lobby, sadomachosists are already allowed to obtain marriage licenses. Celebrating weddings with leather dresses, whips and chains has already been legalized. In every state in the union. Ever since the Sodomy Lobby took over the nation, in the 1990s, if I recall correctly.

Oh, whoops, it turns out I didn't recall correctly — such depraved weddings have, to my knowledge, always been legal. I'm unaware of any law, past or present, regulating the amount of leather or metal at weddings. (Social norms, sure, but somehow no laws.)

No Marriage Police monitor couples' bedrooms so they can swoop down and strip husbands and wives of their marriage licenses for consensual sadomasochism. What's more, if a man and a woman walked down to their local courthouse and asked for a marriage license while proudly announcing their sadomasochistic preferences, I doubt they'd be denied such a license. And if they would be, I suspect such a denial would itself be illegal, since to the best of my knowledge clerks have a legal obligation to issue licenses once certain objective prerequisites are met, and lack of intent to engage in sadomasochism isn't one of those prerequisites.

But wait, it gets still more depraved. There are probably tens of millions of married couples in which the parties regularly practice sodomy. Sodomy is sometimes defined only as anal sex, but sometimes also as oral sex, which is surely the definition Mr. Kinsolving must be using, since his objection was prompted by Dick Cheney's lesbian daughter, who presumably wasn't having much anal sex. It's also sometimes defined as purely homosexual, but generally as either heterosexual or homosexual; and since Mr. Kinsolving condemns sadomasochistic marriages without any mention of the sex of their partners, I take it he'd likewise disapprove of marriages of any sort that include that hideous crime of sodomy.

Yet no-one does a thing about these marriages. No marriage licenses are revoked. None are denied. Shameful. Shameless. A shame. Why don't people realize that we all have to make sure that none of our fellow married couples are having sex the wrong way?

Geitner Simmons (Regions of Mind) remembers some Cold War-era forgeries.

 I've generally avoided the substantive question of whether the CBS documents were forged, because I have no special expertise on it, and because others already have it well in hand. But I do want to pass along something that Jim Lindgren, a lawprof at Northwestern whom I very highly respect, sent to me. These are his views, not mine, but they seem to me to be much worth listening to:

The CBS forgeries are in part a generational thing.

While we may never know who forged the documents, it is highly likely that the forger was not an adult in the early 1970s. The forgers, the younger producers at CBS, and some of the younger bloggers who still aren't sure about the documents' authenticity are too young to remember what non-typeset documents looked like in 1972. I remember marveling at how beautiful documents typed on IBM Selectrics looked in the 1970s, but their typefaces and spacing did not come close to approaching traditional typesetting, modern computer fonts, or the forged documents in the flow and spacing of the letters. Many of us can remember when two spaces between sentences were usually typed as two spaces, before computers compressed them (as in MS Word and the forgeries).

The "pseudo-kerning" that is present in MS Word and the forged documents was not available in any IBM machine in the early 1970s. As font expert Joseph Newcomer explains, MS Word Times New Roman tucks some letters under parts of other letters. For example, open MS Word in Times New Roman and type "fr" (go ahead, try it). According to Newcomer, no IBM typewriter or office machine of any brand could do that in 1972. If Newcomer is right about this fact alone (and it certainly fits with my lay recollections of the era), then the documents are "proved" to be forgeries. End of story--CBS has the proof it says it wants. CBS needs only the additional time necessary to establish Newcomer's factual assertion (unless they can find such a nonexistent pseudo-kerning typewriter) before they retract their story and abjectly apologize to Bush and its viewers. And this is only one item in the now extensive evidence of forgery.

In response, there are the statements of new CBS expert Bill Glennon, "an information technology consultant" who repaired IBM typewriters from 1973 through 1985. In its devastating critique of CBS's position, the Washington Post evaluates Glennon's argument:

He [Glennon] said that IBM electric typewriters in use in 1972 could produce superscripts and proportional spacing similar to those used in the disputed documents. . . . Thomas Phinney, program manager for fonts for the Adobe company in Seattle, which helped to develop the modern Times New Roman font, disputed Glennon's statement to CBS. He said "fairly extensive testing" had convinced him that the fonts and formatting used in the CBS documents could not have been produced by the most sophisticated IBM typewriters in use in 1972, including the Selectric and the Executive. He said the two systems used fonts of different widths.

This makes a point that younger commentators in particular have underappreciated. Some have argued that it is not surprising that the purported 1972-73 memos would match modern MS Word pretty closely because both use Times New Roman. Yet as Mr. Phinney explains, he has tested the 1972 machines in question and the spacing is different. Proportional spacing, even with expensive machines in the 1970s, was not the same as the fluid versions in MS Word, as I well remember from working with fancy proportional spacing machines while practicing law in 1979 (machines that were not available in 1972).

It almost goes without saying, as the Washington Post points out, that none of the dozens of other authentic documents that have surfaced from the Texas Air National Guard generally and from Killian himself used proportional spacing of any kind, let alone the kind found in MS Word.

If you doubt that two fonts with the same name line up differently, try this experiment: type and print out a paragraph from one of the CBS forgeries in Times New Roman font in both MS Word and WordPerfect 10 (2002). The CBS forgeries match the MS Word version but not the WordPerfect version. The lines in WordPerfect, using supposedly the exact same font as in MS Word--Times New Roman--do not line up with the lines in the forgeries, not even close. WordPerfect 10 could not have been used to put together the forgeries, but MS Word could have.

Even if Joseph Newcomer were wrong and there were office machines that did pseudo-kerning in 1972, the chances are astronomical that the proportional spacing, superscripts, curved apostrophes, and letter widths would match almost exactly a font that was refined to its present form two decades later.

I think that it was the forger's youth that made him think that he could get away with not even bothering to buy a 1970s era typewriter to do the forging. Imagine what would have happened if CBS hadn't had the decency to post the documents online. Yet if in the next day or two CBS can't admit that they were scammed, then the problems at CBS go much higher up the corporate ladder and much deeper in the news division than we know.

(if the memos were indeed forged): As I'd mentioned a few days ago, it's surprisingly hard to find laws that prohibit this sort of forgery. Using false statements, including forgeries, to get money or many other valuable things is surely illegal. But the law generally does not criminalize lies as such, when what you're trying to get using the lies is a change in another's political opinion, or for that matter likely vote. Maybe that's right and maybe it's wrong, but there it is. I noted a couple of state misdemeanor statutes that bar certain false statements during election campaigns, but they seem like the exception rather than the rule (though perhaps they could be used against this very forger).

Matt (Stop the Bleating!) points to one possible alternative, 18 U.S.C. sec. 912, which says that "Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money . . . or thing of value, shall be [punished]." But this requires not just impersonation but also "act[ing]" as the officer, and lower court decisions, the Justice Department's interpretation, and an inference from the text of the statute (the "demands or obtains" clause, which would be superfluous if any impersonation was per se punishable as "act[ing]") suggest that impersonation isn't enough. (Matt talks more about this, and also explains why the statute covers more than just in-person impersonation.)

Troy Hinrichs points to Texas Penal Code sec. 32.21, which forbids "forg[ing] a writing with intent to defraud or harm another" (emphasis added); Texas Penal Code sec. 1.07 defines "harm" to mean "anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested." Reputational harm would probably qualify, but harm in the sense of becoming deluded about some historical fact and voting the wrong way might not. I doubt therefore that if the writing were forged outside Texas, the forgery would be a crime in Texas, even if Bush (the harmed party) is still a Texas citizen.

Markham Pyle and Simon Stevens point to Texas Penal Code sec. 37.10, which seems to be more clearly on point, since it criminalizes (among other things) "mak[ing], present[ing], or us[ing] any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record." That probably covers things, so long as the memos are treated as "governmental record[s]," though again it's not clear whether Texas would have jurisdiction simply because the records purport to be Texas records (probably, but I'm not sure).

Another reader pointed to this OpinionJournal story, which discusses a seemingly similar incident:

In 1997 ["60 Minutes"] broadcast a report alleging that U.S. Customs Service inspectors looked the other way as drugs crossed the Mexican border at San Diego. The story's prize exhibit was a memo from Rudy Comacho, head of the San Diego customs office, ordering that vehicles belonging to one trucking company should be given special leniency in crossing the border. The memo was given to "60 Minutes" by Mike Horner, a former customs inspector who had left the service five years earlier. When asked by CBS for additional proof, he sent another copy with an official stamp on it.

CBS did not interview Mr. Camacho for its story. "It was horrible for him," says Bill Anthony, at the time head of public affairs for the Customs Service. "For 18 months, internal affairs and the Secret Service had him under a cloud while they established that Horner had forged the document out of bitterness over how he'd been treated." In 2000, Mr. Horner admitted he forged the memo "for media exposure" and was sentenced to 10 months in federal prison. . . .

Sounds on point, but a 2000 news story reports that Horner "pleaded guilty to conspiracy to obstruct a U.S. Senate investigation and to lying to the FBI agents who investigated the memorandum's origin" — what got him wasn't the forgery itself, but the interference with a particular government investigation.

So forgery for purposes of a political hoax (rather than to get money) seems safer than one might have at first thought, though, kids, don't try it at home . . . .

An interesting category used by a law school to classify its professors (alongside more traditional ones such as "Criminal Law," "Family Law," and "Litigation/Dispute Resolution"). I'd have thought that all law (yes, even animal law) involved, at bottom, human issues . . . .

Lee Smith (Slate) has an interesting piece on the subject.

Glen Whitman has a very good post on this, going into considerably more depth than the item below does.

The BBC reports:

Brazil's federal police force says a government campaign to cut gun crime by offering to buy back weapons is going twice as well as expected.

Police said they had met their target of collecting 80,000 guns in under three months, rather than six months. . . .

Actually, that means that a "government campaign to . . . buy back weapons is going twice as well as expected." In the absence of other data (and the story gives no data), it doesn't remotely prove anything about how the "government campaign to cut gun crime by offering to buy back weapons" is going, no?

Say that the memos are indeed a hoax. Could CBS be civilly liable in various ways? A bunch of readers asked me this, so I'll try to answer, in several posts. (Please note that I'm getting even more than the usual amount of e-mail on these issues, so some will end up being discarded, or put on the back burner where it will cogneal into a grimy mental mush that I'll eventually throw in the sink rather than trying to rescue and turn into something edible.)

First, as to shareholder lawsuits, I can free ride off the work of others who are much more knowledgeable than I am. My friend and colleague Professor Bainbridge, who is a leading corporate law expert, has all about this. Short answer: CBS will win on this, and it should win on it — do you really want to have huge lawsuits every time someone claims (rightly or wrongly) that some media outlet botched a story?

[NOTE: After posting this post and the three that now appear below, I reordered them so they make more sense when read from top to bottom.]

A reader writes: "Is it in the public interest for a television station owner to use forged documents to try to remove a sitting politician? . . . Personally, I'd think that if CBS knew or should have known that the documents were forged, license forfeiture for the CBS owned and operated stations would be appropriate."

Yow! Do we really want political bodies, appointed by politicians, stripping broadcasters of licenses because the broadcasters were supposedly negligent (the "should have known" test is a negligence test) in distributing supposedly false documents? If you're a Republican, let me put it this way: Would you have wanted, in the late 1990s, to have an FCC dominated by Clinton appointees stripping TV stations of licenses because they supposedly negligently spread inaccurate information about Clinton?

I think the answer has to be no: This would deter even serious, responsible broadcast news reporting, because broadcasters would be afraid that the FCC would strip their licenses if the FCC concluded that the allegations were false and ngeligent.

That's the logic of New York Times v. Sullivan as to libel lawsuits, which are much more historically established than any such FCC power, and are less likely (though by no means entirely unlikely) to be politically abused. It should certainly apply to license revocations, too. I'm pretty sure that the FCC wouldn't act this way (it may have the statutory authority, under the vague "public interest" standard, but I'm pretty certain they don't exercise this authority this way), and shouldn't act this way.

What about libel lawsuits against CBS, some ask — for instance, by Bush himself, by Killian's heirs, or by General Staudt, who was accused in one of those memos of leaning on Killian?

The Killian lawsuit is easy to dispose of: Dead people can't sue for libel; that's the libel rule in all 50 states, to my knowledge (though a few have long-unused criminal libel statutes that cover libels of the dead). Also, it's not clear that the falsehoods (if they are falsehoods) about Killian are defamatory or constitute false light invasion of privacy (an alternate tort), but in any event it doesn't much matter because he's dead.

Bush is obviously a public official. Staudt was once a high-level military officer, which made him a public official and thus a public figure. There's some suggestion in the cases that public figure status might dissipitate after enough time; but the cases that I've seen all point towards the conclusion that former public officials remain public figures indefinitely as to things they allegedly did while public figures. (I think this would apply even if the alleged pressure by Staudt allegedly took place at a time when Staudt had already retired — that goes to the likely falsehood of the statement, but the statement is still an allegation of misconduct while in office.)

So as to both Bush and Staudt, CBS is not liable unless they knew the statements were false, or were aware that the statements were likely false and proceeded in any event (the misnamed "actual malice" standard). I find that extremely unlikely. Even setting aside the moral questions, journalists and news executives must know how horrific for their careers and reputations this sort of scandal might be; and if they knew the statements were likely false, surely they would have been a bit more self-conscious about how suspicious the memos' formatting would look.

That's why, if the memos are forgeries, I strongly suspect that everyone at CBS (or conceivably everyone except one or two highly reckless low-level people who were in on the forgery) simply screwed up. It's a screw-up that might well have been abetted by their political predilections or by a tunnel-vision chase for a hot story. But it was likely an honest, even if unreasonable, error, and that doesn't suffice for liability in a case involving public officials or public figures and matters of public concern.

What about General Hodges, as Eric Rasmusen asks?

The Washington Times says

One retired Guard official, who was Mr. Killian's immediate supervisor, Maj. Gen. Bobby Hodges, was offered up by Mr. Rather as one who would substantiate that the memos were real. But yesterday Gen. Hodges told the Los Angeles Times he thought the memos were fake. One CBS executive said the general, a known Bush supporter, had changed his story.

. . . CBS is saying that the General verified forged documents. Moreover, he is a known Bush supporter, which makes him look pretty stupid and treacherous if he validated documents that were forged to hurt Bush. The General says he didn't do it, though. . . .

The allegation that the General verified the documents, even if false, is likely not defamatory; the allegation that he had changed his story, though, likely is defamatory. They wouldn't be the strongest claims of defamation, since he'd probably have to persuade the jury that he suffered some specific damage as a result of the statements.

But more broadly, even if the General is no longer a public figure (the statements being made about him are not statements about his alleged conduct when he was still serving), he's likely a limited purpose public figure. If he talked to CBS News about the documents, he injected himself into this controversy. Even if he was later misquoted by CBS News itself, he'd still be a public figure for purposes of this debate, so that to recover he would have to prove the CBS knew its statements about him were false (or at least knew the statements were quite likely false). Maybe he could prove such knowing falsehood (e.g., they knew that I hadn't changed my story, so they lied when they said I did change it) plus damages; but that's what he would indeed have to prove, and showing negligence isn't enough.

UPDATE: Someone asked what the chances are of getting an emergency injunction in a libel lawsuit against CBS, to make them stop spreading the alleged libel. The answer is that the probability is much zero -- see the discussion on prior restraints in this article.

The posts above all assume that the people at CBS were at worst negligent (again, assuming they were wrong, which has not been proven but which I'm just assuming for purposes of the legal analysis). But what if someone -- for instance, the forger, or even someone in the media -- does lie in a public debate? What would and should happen then, legally?

As I've mentioned above, some states do criminalize certain kinds of knowingly false statements in public debate. Also, libel law does allow recovery, including punitive damages, for knowingly or recklessly false defamatory statements about public figures on matters of public concern. ("Recklessness" here refers not to being grossly negligent, but to knowing that the statements are likely false and proceeding in any event without adequate checking -- it's closer to knowledge than to negligence.)

Nonetheless, I think we should be wary of prosecution and even litigation even in such situations. Unfortunately, the judicial process is a highly imperfect means of getting at the truth, especially on politically charged questions. Historical matters are best decided, I think, in public debate (for all its flaws) rather than in a courtroom.

Obviously, false statements in political campaigns are harmful to the voters and to our political system. But prosecution seems to me to be a remedy that's worse than the disease -- especially since of course it won't just be the obvious liars who are prosecuted, but potentially anyone who a prosecutor (who often himself has political alliances and political ambitions) thinks is a liar. We all know how often charges of lying are batted about over what ends up being an honest disagreement. And if such prosecutions became routine, lots of people would understandably be deterred from saying even things that are true (or that are opinions).

In some limited situations, where there's a smoking gun -- and there may be classes of cases like that, for instance when people misdescribe their own military record, see, e.g., Pittsburgh Post-Gazette, Dec. 17, 1996, at A10 (discussing prosecution of former Rep. Wes Cooley for supposedly lying to Oregon voters in a ballet pamphlet about his Korean War experience), or when someone forges a document -- the arguments against criminal prosecution might be weaker. Perhaps one could come up with a crisp legal principle, or a crisp political norm for prosecutorial behavior, that would limit prosecutions to such open-and-shut cases. But I'm not sure that this is so, and I wouldn't like the norms to evolve towards using prosecutions as a routine tool whenever prosecutors think that some candidate is lying.

The case for allowing libel lawsuits is stronger, because in addition to the harm to the voters and the political process, there could also be harm to a particular person's reputation and livelihood. Moreover, such lawsuits are certainly firmly historically rooted, and New York Times v. Sullivan, for all its concern about protecting speech both against wrongful punishment and against deterrence by the fear of wrongful punishment, nonetheless preserved such lawsuits in cases where the plaintiff has evidence that the defendant was knowingly lying. (Three dissenters, Justices Black, Douglas, and Goldberg would have completely eliminated libel lawsuits over statements related to matters of public concern, precisely because of a fear that the judicial process will often err in such cases; but the majority, including Justice Brennan and Chief Justice Warren, disagreed.) I can't say that such lawsuits are, or even should be, unconstitutional. Still, I'm not wild about them, because I don't have great confidence in the abilities of juries to decide historical questions.

Finally, note that historically sitting government officials (especially high officials) don't file libel lawsuits even when they think someone has been lying about them. It's often seen as beneath the person's dignity. It's likely to focus the public's attention on the false charges. It's likely to waste a lot of the official's time and attention. And while it may let the official get access to the defendant news organization's internal documents, and force the reporters and managers to testify about what they knew when -- something that might well be quite embarrassing to the news organization, and that might strengthen the official's case -- it also lets the news organization get discovery against the official. The organization might, for instance, require the official to give depositions about other matters related to the controversy (since that would be relevant to whether the charges were substantially accurate even if some aspects of them were clearly literally false), a prospect that many officials might not relish.

So the bottom line: For all these reasons, I think that public criticism, for all its flaws, is a much better remedy for media negligence and even for media, candidate, or commentator lies than is either civil litigation or criminal prosecution.

"[B]ad policy, bad politics, and extraordinarily trivial as a substantive matter." Thanks to InstaPundit for the pointer.

Several days ago, the Chicago Sun-Times ran an editorial that begin with this paragraph:

How ridiculous is the notion that private citizens should be able to tote machine guns? It takes someone with extreme positions like Alan Keyes to righteously argue that cause. Most Americans — Democrats and Republicans — are against claiming Second Amendment protections for these guns and support the federal assault weapons ban. . . .

I wrote that this was a pretty serious error: By its explicit terms, the assault weapons ban doesn't cover machine guns, but covers certain kinds of semiautomatic guns -- guns that are actually closer to the typical semiautomatic gun that tens of millions of people own, rather than to machine guns. The argument with which the editorial begins is thus based on an error (the implied claim that the assault weapons ban is about machine guns).

I called and e-mail the Sun-Times about this; they at first told me they'd run my point as a letter to the editor, but I suggested that, if I was right, the situation called for a correction and not just a response. They told me they'd run a clarification, and here it is, from the bottom of the Sunday letters to the editor page:

Clarification

An editorial in the Sept. 7 editions about the need to extend the assault weapons ban included a reference to machineguns. The assault weapons ban covers semiautomatic weapons.

I leave it to readers to decide how apt the Sun-Times' response is.

Thanks to Michael Demmons and the Spoons Experience for the pointer. Note that their response might have well been prompted also by other people's letters -- I refer to my correspondence with them simply because that's all I know about.

Just ran across LibraryLaw Blog, an interesting blog focused on law and libraries. Definitely worth checking out.

Here's one interesting story the blog points to:

[The ACLU] filed a lawsuit on behalf of Carlos Hernandez, a Honolulu man who said he was banned from the Hawaii State Library for a year for using its computers to access a gay and lesbian Web site . . . .

Hernandez was using a computer at the library on May 18 when a security guard issued a written warning telling him he was being banned for one year because he was viewing a pornographic Web site, according to the lawsuit.

Hernandez and the Center say the Web site, www.gayhawaii.com, is not a pornographic site, but a resource with information on events, travel, real estate and other services for the gay community.

The Center complained, and was told by a library official that the security guard issued the warning because the Web site contained photos of men without shirts, the lawsuit said.

Pretty amazing, if the allegation is accurate.

A bunch of people e-mailed me to say that surely forging a letter from a military officer, which ostensibly came from a military file, must violate some federal statute, and not just the couple of state election law statutes I mentioned here. Well, that was my intuition, too, but a quick search didn't reveal any such general statutes. Federal forgery law is a set of specific prohibitions on forging specific kinds of documents, and I couldn't find anything that would cover this sort of letter. Likewise, prohibitions on fraud generally involve fraud intended to get something of value from someone, but not including their opinions or their votes.

I may well have missed something — I'm not a specialist on forgery and fraud laws, and my searches were cursory. If you find a statute that would cover this, please e-mail me its citation and its text, and if it pans out, I'll gladly blog about it. But for now, I don't see it; I only see the two state misdemeanor statutes, focused on false statements aimed at affecting elections.

UPDATE: A couple of people suggest that 18 U.S.C. sec. 1001 might apply here; this is the general federal false statement statute, which provides (in most relevant part),

Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully -- (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both.

I would like to thank Professor John Mogk for his response to my most recent post on the Michigan Supreme Court's overruling of Poletown in the recent case of County of Wayne v. Hathcock. Under normal circumstances, I would hesitate to renew a debate like this such a long time after it began. However, Hathcock's reversal of Poletown is one of the most important property rights cases of the modern era, and it deserves the additional discussion.

Readers may recall that Poletown was the notorious 1981 decision in which the Court had upheld the city of Detroit's decision to condemn the homes of over 4200 people in order to transfer the property to General Motors so that it could build a new factory. The Hathcock decision overruled Poletown and held that private property could not be condemned for transfer to other private interests so long as the sole rationale for doing so was "economic development." The Hathcock Court rightlyconcluded that this rationale places property rights in grave danger because it could be used to justify virtually any condemnation that transferred property to a private business. In my earlier criticism of Mogk's argument [see here, and in the posts linked to there], I cited decisions by Illinois, California, and Florida supreme courts that concluded that economic development was not an adequate rationale to justify takings that transfer property to private interests. These cases undermine Professor Mogk's claim that Detroit is now the only city among the nation's 25 largest without the power to condemn private property solely for "economic development." I also pointed out that Professor Mogk incorrectly claimed that the Poletown condemnation created 6000 jobs at the new GM factory, and explained several serious dangers caused by allowing condemnations of property for the sole purpose of allegedly creating "economic development." Far too often, such condemnations are used to confiscate property for the use of politically powerful private interests such as General Motors, rather than create any real benefits for the public.

Professor Mogk's most recent post fails to refute these points. He continues to overestimate the benefits of the Poletown decision and others like it, while ignoring the many costs and injustices they created. He also continues to be mistaken in his interpretation of eminent domain cases from other states.

I am glad that Professor Mogk now admits that the Poletown decision did not really create 6000 jobs at the new GM factory. Although the City of Detroit and GM claimed that 6000 jobs would be created there, in reality it has never employed anywhere near that many, with employment peaking at about 3600 during the late 1990s. This fact illustrates one of the main flaws of economic development takings: that the new owners are not legally required to actually provide the economic "benefits" that were used to justify the condemnation in the first place. As a result, powerful private interests such as GM can persuade local governments to condemn property for their use on the basis of dubious predictions of public benefit that they do not have to live up to once the legal proceedings are over.

Professor Mogk suggests that the figure of 6000 was merely an estimate of " the number to be moved out of the City, if the Poletown plant were not built." In reality, the Chairman of GM specifically promised the City that "General Motors Corporation will . . . cause an automotive assembly plant . . . employing approximately 6,000 people, to be built upon this site." Letter from GM Chairman Thomas Murphy to Detroit Mayor Coleman Young, Oct. 8, 1980. For those interested, Murphy's letter is reprinted in the Poletown decision itself. Poletown Neighborhood Council v. City of Detroit, 410 Mich. 616, 652 n.6 (Michigan, 1981) (Ryan, J., dissenting). The fact that GM got away with disregarding this widely publicized commitment says a great deal about the true nature of economic development condemnations.

Professor Mogk also argues that Poletown may have created many more jobs through a "multiplier effect" by means of which the GM factory may have increased employment at other local businesses. Unfortunately, this claim ignores the fact that the 4200 residents' homes, 400 businesses, 16 churches, and several hospitals and schools wiped out by the Poletown condemnation also probably created numerous jobs in the community beyond those held by the people they directly employed. The $200 million that the City of Detroit spent to "prepare" the site for GM could also no doubt have created numerous jobs and promoted development in other ways. Like the Poletown Court itself, Professor Mogk accepts all claims that the GM condemnation created benefits, while ignoring its grievous costs.

Furthermore, Professor Mogk's estimate of the size of the "multiplier effect" is based on a study of the impact of a Mercedes plant built in an "open field" in Alabama in the 1990s, circumstances considerably different from 1981 Detroit, to say the least. Economists recognize that estimating multiplier effects is a chancy business under the best of circumstances. Estimating them on the basis of evidence from a very different situation is even more problematic.

Professor Mogk is also unpersuasive in his attempt to make use of the fact that some of the Poletown property owners were eager to leave and willing to accept the terms offered by the City of Detroit. This ignores the reality that thousands were not willing to sell and considered the City's offer grossly inadequate. See, for example, the detailed history of the case in Jeannie Wylie's book, Poletown: A Community Betrayed (Univ. of Illinois Press, 1989). The resistance of numerous Poletown residents to the condemnation of their property is why the Poletown case ended up in court in the first place. No one objects to GM or the City buying property from willing sellers. The wrong the City committed was its callous decision to confiscate the homes, churches, and businesses of thousands of unwilling victims.

Professor Mogk's claim that economic development projects cannot be established without the use of eminent domain is contradicted by the obvious fact that numerous factories, shopping malls, and other projects are constructed without it every day. In his previous post, he partly took note of this fact when he conceded that condemnations are "not needed to further economic development where the market is strong and growth is occurring." Obviously, it should be easier, not harder, for developers to buy the land they need in a depressed area where property values are likely to be low and owners eager to sell.

In defending his claim that Hathcock is a unique aberration, Professor Mogk argues that the recent Supreme Court of Illinois decision in Southwestern Illinois Development Authority v. National City Environmental did not forbid "economic development" condemnations because it ruled that the condemning authority in that case was improperly seeking to advance a private interest. The Illinois Court did indeed hold that there was an illegal motive present. But that did not prevent it from also concluding that a "contribu[tion] to economic growth in the region" by the new owner of the property cannot be a legitimate ground for condemnation because "incidentally, every lawful business does this." Southwestern Illinois Development Authority (SWIDA) v. National City Environmental, LLC, 768 N.E.2d 1, 9 (Illinois 2002). A court can have more than one justification for a decision. And, as noted in my previous post, its reason for rejecting the economic development rationale was almost identical to that of the Michigan court in Hathcock. The other points Mogk makes about SWIDA are likewise unpersuasive, because they all sidestep the plain fact that the Court specifically considered the economic development rationale and rejected it.

I have gone on for too long. The bottom line is that there is little reason to believe that "economic development" takings actually benefit the general public, and much evidence showing that they primarily serve the interests of politically connected corporations and developers, usually at the expense of the poor and politically weak. Poletown was only the most notorious example of this trend. A society committed to private property rights should not allow such flagrant abuse of power to continue.

If the Killian letters (the ones that purport to relate to aspects of President Bush's National Guard service) are indeed forged, the forger might be criminally prosecuted.

My sense is that most forgery statutes don't apply to frauds aimed at influencing votes, rather than to getting money or property or the like. I might be mistaken, but that's what my tentative looking around suggests. Nonetheless, I've found at least two statutes (one with the help of reader William Modahl, who also raised the broader question for me) that specifically do prohibit election-related frauds:

1. NH Rev Stat 666:6: "Any person who shall, without authority, sign the name of any other person to any letter or other document, or falsely represent that any other has written such letter or document, knowing such representation to be false, for the purpose of influencing votes, . . . shall be guilty of a misdemeanor."

2. Ohio Rev. Code § 3517.21: "No person, during the course of any campaign for nomination or election to public office or office of a political party, shall knowingly and with intent to affect the outcome of such campaign . . . [f]alsely identify the source of a statement, [or] issue statements under the name of another person without authorization." [R.C. § 3517.992 makes this a misdemeanor.]

Of course, the forgery likely wasn't done in New Hampshire or Ohio. But my sense — again, tentative — is that because the forgery was likely an attempt to influence (among other things) elections conducted by New Hampshire and Ohio of Hampshire and Ohio presidential electors, those states would indeed have jurisdiction to try the forgers. If any jurisdiction experts can tell me I'm wrong, please do.

But what about the First Amendment? The Court has generally suggested that knowing falsehoods lack constitutional value, and thus can be punished. Knowing falsehoods about the government, however, seem to be categorically protected even though they're deliberate lies (see New York Times v. Sullivan); and at least one state court has struck down a general ban on knowingly false statements in election campaigns, theorizing that the First Amendment exception isn't for lies generally, but only for specific kinds of lies, such as libel, fraud, perjury, and the like. See State ex rel. Public Disclosure Comm'n v. 119 Vote No! Committee, 135 Wash. 2d 618 (1998).

On the other hand, courts have upheld the Ohio bans on knowingly false statements in election campaigns, see, e.g., State v. Davis, 27 Ohio App.3d 65 (1985); Briggs v. Ohio Elections Com'n, 61 F.3d 487, 494 (6th Cir. 1995). And this false statement seems to be a false statement about a particular person (whether or not it's actually libelous), which would make it pretty clearly unprotected both under the libel cases (e.g., New York Times v. Sullivan) and the false light cases (e.g., Time v. Hill). Under normal tort law rules, the statement might or might not be actionable; but I think that the First Amendment doesn't impose any constitutional barrier to punishing it.

Note that the knowledge requirement means (quite rightly) that if CBS was the unknowing victim of the fraud (if, of course, there was a fraud), it and its reporters wouldn't be criminally liable.

I just heard back from Dr. Sisley, who was quoted by Reuters about spinal cord injuries and firearms (see this post). She reports that what she told Reuters -- and what Reuters should have said -- is that 90 percent of spinal cord injuries caused by violence (which are a minority of all spinal cord injuries) in the United States are caused by gunshot wounds. The "caused by violence" was incorrectly omitted by Reuters.

has just been struck down, both on First Amendment grounds and dormant Commerce Clause grounds. I haven't read the entire opinion, but what I have read suggests that the court's main reasons were: (1) given existing technical limitations, the law essentially pressures ISPs into blocking a lot of fully protected material as well as the unprotected child pornography; (2) the orders are issued before a full trial on the merits and are thus unconstitutional prior restraints (see the discussion of prior restraint law in this article for more); and (3) the law ended up excessively interfering not just with access to protected material by Pennsylvanians but also with such access by residents of other states, which makes the law an unconstitutional state regulation of interstate commerce (not all such state regulations are unconstitutional, but some are). The opinion is here.

Scott Martens (Fistful of Euros) criticizes Dan Pipes, arguing that he misrepresents certain French-language writings by Tariq Ramadan. In passing, he also mentions:

Monolingualism has costs. Eugene Volokh, for example, has posted a link to Pipes' piece but says that he does not know the facts of the case well enough to judge. Ted over at Crooked Timber makes the same claim to uncertainty. But, a cursory look at the French articles cited makes Pipes' case worse than contestable . . . . Never underestimate the value of knowing a foreign language. . . .

I'm all for knowing foreign languages, and I wish I knew more. But I should point out that failure to know French doesn't necessarily constitute "monolingualism" . . . .

UPDATE: Reader Luke White writes, "Of course a failure to know French constitutes monolingualism, in exactly the same way a failure to ally with the French does unilateralism."

their confusion of machine guns for assault weapons in the opening paragraph of Tuesday's editorial. Looking forward to seeing the item when it's published.

Professor John Mogk wanted to jump in again to the thread we had on the subject in August; the latest entry was Ilya Somin's post, which links back to the older posts, and here's Professor Mogk's response:

OVERRULING POLETOWN

On August 17 I replied to Professor Somin's comments posted on August 9, 2004, regarding my view that the Michigan Supreme Court's recent Hathcock decision overturning Poletown will have a crippling effect on Detroit's future development. Somin's response to my reply was posted following mine. He is completely off base in his analysis.

First, on August 17 he had two criticisms regarding the facts of the Poletown case: (1) GM did not commit to producing the economic development that justified the use of condemnation and (2) 6000 jobs were never generated at the plant, as expected.

The fact is that a $2 billion industrial complex was built in the early 1980s on the Poletown site, operates today and will most likely continue for decades to come. GM committed to fulfilling a development agreement with the City. Thereafter, GM upped its commitment in the 1990s by expanding its Poletown auto body facility by 277,000 sq/ft at an investment of an additional $250 million.

Critics of Poletown have skewed the debate with a focus upon 6000 jobs, which were the number to be moved out of the City, if the Poletown plant were not built. The total economic impact of Poletown involves jobs to be captured directly at the plant and indirectly through a significant multiplier effect applicable to auto manufacturing operations, in addition to increased tax revenues. It is naive to believe that planners and policy makers view the public benefits any other way.

With the expectation that Poletown economic impact assessments would be suspect, I offer the figures from the Troy State University economic impact assessment for a much smaller Mercedes plant built in an open field of Alabama in the mid-1990s. The plant created 1500 auto assembly jobs and was expected to produce 10,000 direct and indirect jobs when fully operational (in supplier plants, warehouses, transportation operations, etc.). The multiplier effect was 6/1. Employment levels in the Poletown plant have reached close to 4000, as the auto industry has continued to be buffeted by foreign competition.

Second, Professor Somin represents an inaccurate picture of the condition of the Poletown neighborhood in the late 1970s. According to The Detroit News reporting on conditions in the neighborhood at the time: "Many homeowners agreed at the outset to sell their homes to the city and leave their crumbling neighborhood. The old workingmen's houses, once solid, were losing mortar or siding. Blight was already driving residents north in the city and to Warren and Sterling Hts." See: http://info.detnews.com/history/story/index.cfm?id=18&category=business

The average price housing in the neighborhood at the time was $13,000 and under the federal relocation act each homeowner received up to an additional $15,000 to purchase a standard home in another neighborhood, invariably much newer and blight free, and $3500 in relocation assistance.

Third, Professor Somin's has offered a tortured and what I believe to be a totally incorrect interpretation of Southwestern Ill. Dev. Auth. v. National City Envtl., LLC., 710 N.E.2d 896 (1999) to criticize my position that Detroit after Hathcock stands alone among the largest cities in the Country in being unable to utilize condemnation to foster economic development authorized by the legislature that serves a legitimate public interest and provides a predominant public benefit. This is the Poletown standard for "general economic development" under which Detroit acted prior to the standard being scrapped by the Hathcock opinion.

SWIDA was an Illinois state empowered development authority which issued bonds to finance a race track for a private owner. The success of the private race track dictated that additional parking be built. The court found from the evidence that parking could have been provided on the premises of the track, but the private owner induced SWIDA to condemn the adjoining parcel owned by a metal recycling center to meet SWIDA's expanded parking needs.

The Illinois Court expressly found that: "While the activities here were undertaken in the guise of carrying out its legislated mission, SWIDA's true intentions were not clothed in an independent, legitimate governmental decision to further a planned public use. .... Clearly, the foundation of this taking is rooted not in the economic and planning process with which SWIDA has been charged. Rather, this action was undertaken solely in response to Gateway's expansion goals and its failure to accomplish those goals through purchasing NCE's land at an acceptable negotiated price. It appears SWIDA's true intentions were to act a a default broker of land for Gateway's proposed parking plan."

Readers should juxtapose the Illinois court's express finding of private purpose with the Michigan court in Poletown which determined: "The power of eminent domain is to be used in this instance primarily to accomplish the essential public purpose of alleviating unemployment and revitalizing the economic base of the community. The benefit to a private interest is merely incidental."

Moreover, totally unlike Hathcock, but identical to Poletown, the Illinois court relies upon the reasoning in the Berman case in which the U.S. Supreme Court interprets the breath of the term "public use" contained in the 5th Amendment to the U.S. Constitution to encompass the expansive boundaries of the "police power" and equates the term to "public purpose." Just the opposite view is found in Hathcock which characterizes any reference to Berman in interpreting the Michigan Constitution as "disingenuous" and rejects any notion that "public use" and the police power are inextricably related.

Lastly, Professor Somin's misplaced belief that it is possible to assemble major tracks of distressed urban land for redevelopment through negotiated purchases alone might be treated as vain humor, if did not address one of the nation's most pressing needs - reversing urban decline.

Urban areas that experienced their zenith in the economy of the early and mid-20th century were broken into land use patterns that are often completely incompatible with 21st century economies. These areas have a multitude of small, fragmented and obsolete parcels. Each parcel has multiple property interests outstanding that must be acquired or removed to sustain redevelopment, such as freehold estates, future interests, easements, covenants, leaseholds and security interests, any one or more of which could be jointly held. In addition, owners of these interests are often difficult to identify and reach.

For example, in order to assemble 400 acres in the late 19th century Poletown neighborhood, several thousand parcels had to be acquired, involving as many as 10,000 property interests. On the other hand, in the 21st century ex-urban, undeveloped area of Hathcock, only 46 parcels were need to acquire 300 acres.

In the case of Poletown, there was no private development interest and it was fostered by the city. In Hathcock, the land is located in a growth area adjacent to one of the world's busiest international airports and is under increasing private development pressure.

The Poletown project in Detroit could not have been undertaken without the use of condemnation. It is reasonable to conclude that the Hathcock project could have been, or another would soon take its place. Attorneys for Wayne County, the condemning authority, announced after the Hathcock ruling that the project would proceed without the use of condemnation.

Rather than overturning Poletown, the Michigan Supreme Court should have tailored the Poletown standard to prohibit the use of condemnation under the development circumstances involved in Hathcock, if it so desired, but allowed for the use of the power where private land assembly is impractical and development pressure virtually non-existent. Professor Somin needs a reality check, as does the Michigan Supreme Court.

preferably ones who remember his books even more carefully than I do, The Scrivener has a puzzle. (Note that, as later post makes clear, he's looking for someone besides the obvious Enoch Root.)

Finally finished the latest (though certainly not the last) round of edits on this, filled in a bunch of blanks, and sent it out to a bunch of law reviews; it's also available here. I've really enjoyed working on the piece, but I'm very, very glad to get it out of my hair, at least temporarily . . . .

The correspondent I mentioned in the post below, after asking me "What is an acceptable number [of injuries from gunshot wounds]?," also wrote, apropos this post:

Also, regarding the quoting of the police chief- 1) Do you really expect him to say, 'Nobody has an inalienable right to run around with a gun equipped with a magazine capable of holding multiple bullets and that has a rate of fire above a certain acceptable level!' Umm, no. It is called a sound bite. 2) Perhaps he is merely allowing himself the same level of hyperbole that the gun advocates (see! I didn't use the word lobby!) use when they make the claim that restricting assault weapons (even in a flawed way) is tantamount to someone raiding their house looking for illegal bb guns.

This seems to me a mighty casual attitude about the truth. True, sound bites must involve some oversimplification. But here the police chief is describing one thing — semiautomatic weapons — using something that is nearly its antonym, machine guns. A machine gun is defined as a weapon that is fully automatic, not semiautomatic. A semiautomatic is defined as a weapon that is not fully automatic, and thus not a machine gun. (I say "nearly" because the two terms put together don't cover all guns: there are also revolvers, pump-, bolt-, and lever-action guns, and other types. But they are mutually exclusive, and in important ways the opposites of each other.)

Now it may be hard to come up with a simple soundbite to accurately describe assault weapons, because assault weapons are such a hard-to-define and often ill-defined term. That, I suspect, is the fault of those who introduced these bans. But in any event, it's no excuse for saying things that are literally false and that convey a materially false impression.

Speaking of hyperbole, I actually haven't heard "gun advocates . . . make the claim that restricting assault weapons (even in a flawed way) is tantamount to someone raiding their house looking for illegal bb guns." Perhaps some have made the claim, but it would have been nice if the reader had pointed me to specifics (just as I pointed to specifics in my posts).

But beyond this, surely it would be very bad indeed for us to tolerate government officials' making materially false statements — and not just obvious hyperbole, but statements whose falsehood is hidden enough from most listeners that it's likely to mislead them — simply because some unspecified people on the other side have likewise made exaggerations themselves. Surely that is not the way towards rational policy discussions.

Finally, please note that the one distinction that the assault weapons ban does not make is based on a gun's rate of fire. I know of no evidence that assault weapons have a higher rate of fire than other semiautomatic guns (of which there are many times more than there are assault weapons) that aren't covered by the assault weapons ban.

The ban does limit magazine size, which my correspondent recognizes is a separate issue. But the overwhelming majority of all shootings in the U.S. involve fewer than 10 rounds (generally the magazine size cutoff in the ban) being fired. When I last checked (in Gary Kleck's Targeting Guns), nearly all mass shootings were done in circumstances where the shooters had plenty of time to reload. And reloading a semiautomatic gun that has a fully assault-weapons-ban-compliant 10-round magazine takes a second or two. (Of course if the correspondent's conclusion from this is that he wants to ban all semiautomatics, or all guns "equipped with a magazine capable of holding multiple bullets," which is to say all guns other than single-shot shotguns or derringers, that's fine — but then he should acknowledge that he's advocating much more than just a ban on "assault weapons.")

A reader writes, responding to my post about spinal cord injuries:

Regarding your recent post on spinal injuries and gunshot wounds, I am wondering what is an acceptable level of gunshot-inflicted wounds. For me, the level is extremely low — about equivalent to the number of injuries that are created by, say, policemen in the course of their duty. I am wondering what level is acceptable to you so that someone can have the right to play with a gun.

It seems to me that this rather misconceives the issue.

First, whatever the answer, I take it that we'd agree that news accounts should contain accurate data, rather than data that's off by close to an order of magnitude. If a news account quotes someone as saying that 90% of all spinal cord injuries are caused by firearms, and it turns out that the number is less than 11% — assuming, that is, that the 11% number is correct (and I got the number from what seems to be an impartial and credible source, but of course it might still be wrong) — then the difference seems material, and worth correcting.

Second, the question isn't what's an acceptable level of gunshot-inflicted wounds in the abstract, just as we don't ask what's an acceptable level of car-inflicted wounds in the abstract (that number is 40,000 deaths per year, plus many more injuries). Rather, two key questions (though not the only ones) for any gun control proposal are (1) how much it would reduce the wounds, and (2) how much it would increase other wounds and injuries. I suspect, for reasons I've blogged about before, that gun bans wouldn't much reduce gunshot wounds (since the overwhelming majority of gun suicides would still commit suicide through other means, the overwhelming majority of gun killers would still get guns illegally, and accidents account for only a small fraction of gun fatalities though a slightly larger fraction of nonfatal gun wounds). I'm also quite sure that assault weapons bans wouldn't reduce them at all (since people would just use other pretty much equally lethal weapons instead).

And at the same time, gun bans would also cause some more homicides, assaults, rapes, and other crimes, because law-abiding citizens would no longer be able to defend themselves with guns. Guns, like cars, aren't just to be played with. They're also useful devices that are used hundreds of thousands of times per year (the National Crime Victimization Survey gives numbers around 80,000-100,000, many other surveys give numbers of 500,000 to 2.5 million, and I suspect the right answer is probably in the high hundreds of thousands) for self-defense. Perhaps one may say that on balance they do more harm than good, and also that gun bans do more good than harm (a very different question). But it's not just a matter of saying "More than X hundred injuries per year, so ban them," for guns, for cars, for knives, or for other devices.

According to ABCNews.com,

Nothing gets Los Angeles Police Chief William Bratton more impassioned than talking about the impending expiration of the 10-year-old assault weapons ban.

"Nobody has an inalienable right to run around with a machine gun," he said. "I'm sorry, that's insanity!" . . .

As I mentioned below, the assault weapons ban is not about machine guns. Check out the text (secs. 110101-110106, which repeatedly refers to "semiautomatic" weapons.

Now surely a police chief knows the difference between a machine gun and a semiautomatic, even if the Chicago Sun-Times editorialist might not. Did ABC misquote him? (I just called LAPD Media Relations and left a message asking whether that might have happened.) Does the chief just have no idea what the statute he's publicly praising really does? Did he know that the statute was about non-machine-guns, but said machine gun in any event, either because he somehow misspoke (though it's an odd slip to make) or for some other reason?

Thanks to reader William Steinberg for the pointer.

The Reuters story I mentioned below reports:

Amy Sisley, an emergency room doctor at the University of Maryland Medical Center, speaking on behalf of Physicians for Social Responsibility . . . said 90 percent of spinal cord injuries in the United States are caused by gunshot wounds and noted that $1.8 billion a year is spent on spinal cord injuries.

On the other hand, the Spinal Cord Injury Information Network, hosted at the University of Alabama, reports that acts of violence caused 11.2% of spinal cord injuries (presumably a smaller percentage comes from acts of violence that involve firearms). The Centers for Disease Control likewise gives data inconsistent with the 90% figure:

The leading causes of [spinal cord injury] vary by age. Among persons under age 65, motor vehicle crashes are the leading cause. Among persons over 65, falls cause most SCIs.

Many thanks to Nancy Johnson and another reader for the pointers.

UPDATE: I called Dr. Sisley to ask her about this yesterday, and she was kind enough to call back today. She reports that the error is Reuters', which misquoted her -- I have more on this here.

It just struck me: The professor of journalism ethics who was complaining about "assault[s]" and "attack[s]" on the media -- the assaults and attacks being in the form of public criticism of alleged media bias -- also complained about how some hypothetical story is "nothing but a Pentagon publicist's brainstorm seized on by right-wing bloggers."

I think he's trying to criticize right-wing bloggers. He's "inspect[ing us] for any trace of undesirable political tilt." He's part of "a free-floating cadre of [anti-]rightist warriors" who's "denounc[ing]" us. He sounds "hostile and suspicious" to me.

Isn't he, by his own reasoning, now "attack[ing]" us, "assault[ing]" our "commitment to do [our] best to determine and tell the truth," and posing a "compelling danger" to us?

How ridiculous is the notion that private citizens should be able to tote machine guns? It takes someone with extreme positions like Alan Keyes to righteously argue that cause. Most Americans — Democrats and Republicans — are against claiming Second Amendment protections for these guns and support the federal assault weapons ban. . . .

SEC. 110102. RESTRICTION ON MANUFACTURE, TRANSFER, AND POSSESSION OF CERTAIN SEMIAUTOMATIC ASSAULT WEAPONS. (a) RESTRICTION- Section 922 of title 18, United States Code, is amended by adding at the end the following new subsection: '(v)(1) It shall be unlawful for a person to manufacture, transfer, or possess a semiautomatic assault weapon.'

A Washington & Lee journalism ethics professor denounces an "assault" on journalists' "commitment to do [their] best to determine and tell the truth," an "attack," a "compelling danger." What is that fearsome danger?

It's hard now even to write for publication without being uncomfortably aware of just how thoroughly what you say is going to be inspected for any trace of undesirable political tilt and denounced by a free-floating cadre of rightist warriors.

If that's apparent to me as a mere columnist, I can only imagine the current mind-set of supervising editors: If we give prominence to this story of carnage in Iraq, will we be accused of anti-administration bias? And — here it gets interesting — will we therefore owe our readers an offsetting story, perhaps an inspirational tale of Marines teaching young Iraqis how to play softball?

Now, both stories may well be integral to news of Iraq. If so, both should be told. The problem arises when the softball story is nothing but a Pentagon publicist's brainstorm seized on by right-wing bloggers — and the pressure to tell it comes not from a principled desire to deliver a factual account that is broadly emblematic of significant happenings in Iraq, but from a gutless attempt to buy off a hostile and suspicious fragment of the audience base. . . .

Good heavens! There are people out there ("a free-floating cadre of rightist warriors") who actually have the temerity to "inspect[]" stories "for any trace of undesirable political tilt." And when they think they find such tilt, they shamelessly "accuse[ the newspaper] of anti-administration bias." Not only that, but they have the chutzpah to be "hostile and suspicious."

How dare they? Don't they know that newspapers never have political tilt or anti-administration bias, so any such accusations are obviously falsehoods or attacks? Or if it's theoretically possible — just indulge this wild speculation for a moment — that newspapers might conceivably have political tilt and anti-administration bias, might it be actually be understandable if readers and commentators inspect newspapers for such tilt, point out such bias when they see it, and even be suspicious about it or hostile because of it?

If I'm not mistaken, the media tend to take the view (generally quite a correct view) that part of their job is to scrutinize the actions of powerful institutions (such as the government), and sometimes to criticize those actions through their opinion pages or point out factual problems with those actions in their news stories. That way, the media become an important check on possible abuse of power.

Now readers and commentators in other media are doing the same to the media. But that's completely different of course — an attack, an assault, a compelling danger, all because some people ("right-wing bloggers" who generally have much less power and influence than the media do) are criticizing a powerful institution.

Thanks to InstaPundit for the pointer.

Check out this Reuters story:

Gun control activists, health care advocates and law enforcement groups geared up on Tuesday for a last-ditch effort to prevent a 1994 ban on assault weapons from expiring next week, but even its most ardent backers acknowledge the drive is all but futile.

But the influential National Rifle Association gun lobby, meanwhile, said it would "not take anything for granted" as it works to send the ban into oblivion.

Pro-control forces are "activists," "advocates," or "groups." The anti-control forces are the "gun lobby." As I've mentioned before, would journalists who say "gun lobby" call NARAL and other groups on NARAL's side of the issue the "abortion lobby"? Would they call the Reporters' Committee for Freedom of the Press the "press lobby"? Would they call the NAACP the "black lobby"?

Would they say "The gun control lobby, health care lobby, and law enforcement lobby geared up in favor of renewing the ban . . . . But the influential gun rights advocates at the National Rifle Association, meanwhile, said . . ."? Well, we see that this writer certainly doesn't.

The story goes on with twelve paragraphs, of which each one paraphrases, quotes, or describes the stance of a pro-gun-control advocate. Only three of them even mention the views of pro-gun-rights advocates, and there only to say that "the NRA has fought [the ban] fiercely," to quote a pro-gun-control advocate ruing the NRA's power, and to say that Republican leaders oppose the ban -- none of them express the pro-gun-control advocates' arguments:

Ban advocates called on President Bush to intervene and get Congress to act. But Bush, who in his 2000 campaign promised to sign legislation, has been publicly silent for months as the clock ticked.

The ban on such weapons as Uzis and AK-47s will expire at midnight next Monday unless Congress votes to renew it. While warning that high-powered guns and large-capacity ammunition clips could flood America's streets, even the most ardent backers of the ban in Congress admitted that it is almost certain to lapse.

"The likelihood (of extension) is remote," said California Democrat Sen. Dianne Feinstein. House Republican aides concurred, and predicted that ban advocates would not have an opening to try to get legislation through this week.

"I'm trying to put pressure on the president," said New York Democrat Carolyn McCarthy, elected to Congress after her husband was slain in 1993 by a gunman on a Long Island, New York, train. "This whole thing is in Bush's court."

Several public opinion polls, including one released this week by the National Annenberg Election Survey, have found deep public support for the ban, even among many gun-owners and conservatives. But the NRA has fought it fiercely.

"The NRA is an extremely powerful group, there's no two ways about it," said McCarthy, adding ruefully that politicians "don't want to tick them off" two months before elections.

EARLIER EFFORT SUNK

The Senate did vote to extend the ban earlier this year, but as part of a larger bill on gun-maker legal protections that was later sunk at the NRA's behest. Republican leaders in the U.S. House of Representatives strongly oppose the ban and have not allowed a vote on it. McCarthy had hoped to force a vote this week, but said she would not be allowed to bring it to the floor under House rules.

With the clock ticking, groups favoring a ban on the high-powered weapons have tried to draw public attention to it. The Brady Campaign to Prevent Gun Violence has a full-page ad running in the New York Times and Washington Post asking, "Why does President Bush want to put cop-killing guns back on the street?"

More than a dozen leading health groups, including the American Academy of Pediatrics, the Physicians for Social Responsibility and the American College of Emergency Physicians jointly called for the ban's extension on Tuesday, describing gun violence as a public health crisis.

"It is a health-care crisis and it is an incredibly costly health-care crisis," said Amy Sisley, an emergency room doctor at the University of Maryland Medical Center, speaking on behalf of Physicians for Social Responsibility.

She said 90 percent of spinal cord injuries in the United States are caused by gunshot wounds and noted that $1.8 billion a year is spent on spinal cord injuries.

Major law enforcement groups, including police chiefs from big U.S. cities, plan to rally for the ban's extension at a Washington memorial for fallen police officers on Wednesday.

Then, finally, two, count 'em, two paragraphs from pro-gun-rights forces, both quoting only the NRA (as opposed to the many pro-gun-control people and groups quoted or paraphrased in the earlier paragraphs), and only one counting anything remotely approaching a substantive argument:

The NRA in a statement posted on its Web site dismissed the campaign for the ban as a "PR show to blame inanimate objects for the acts of criminals."

But warning its well-organized and highly motivated members against complacency, the NRA said, "We have come too far in the past 10 years not to pull out all the stops in the next week and a half to ensure that this ban expires as Congress intended, and becomes nothing more than a sad footnote in America's history."

Of course, to Reuters' credit, this is followed by a couple of paragraphs discussing the substantive anti-assault-weapons-ban arguments: that even a pro-gun-control leader acknowledged that the current assault weapons ban had no real crime-fighting effect; that many serious observers argue that assault weapons are not materially more dangerous than other weapons that could easily be substituted; that the assault weapons ban turns on largely irrelevant cosmetic factors such as whether the gun has a bayonet lug; and that before the assault weapons ban, assault weapons were likely used in about 2% of all gun crimes? (See here for pointers to supporting evidence.)

Just kidding. Of course there are no such paragraphs.

Many thanks to Dan Schmutter for the pointer.

(Warning: Pretty technical legal stuff ahead.)

Florida has enacted the Florida Religious Freedom Restoration Act, which presumptively mandates religious exemptions from generally applicable laws that end up substantially burdening religious beliefs. (The government can rebut this presumption by showing that denying the exemption is necessary to serve a compelling government interest.) A Boca Raton city ordinance bars vertical markers on graves in a city-run cemetery; some people sued, claiming that this substantially burdened their religious beliefs, because their beliefs led them to prefer vertical markers.

The Florida Supreme Court rejected this claim, and I have no objection to this. But here's how it rejected it -- on pp. 18-19 the court says this (paragraph break added):

The protection afforded to the free exercise of religiously motivated activity under the FRFRA is broader than that afforded by the decisions of the United States Supreme Court for two interrelated reasons. First, the FRFRA expands the free exercise right as construed by the Supreme Court in Smith because it reinstates the Court's pre-Smith holdings by applying the compelling interest test to neutral laws of general application.

Second, under the FRFRA the definition of protected "exercise of religion" subject to the compelling state interest test includes any act or refusal to act whether or not compelled by or central to a system of religious belief. The legislative history of the FRFRA suggests that in order to state a claim that the government has infringed upon the free exercise of religion, a plaintiff must only establish that the government has placed a substantial burden on a practice motivated by a sincere religious belief.

SO far so good. But then on p. 21, the court says:

[W]e hold that a substantial burden on the free exercise of religion is one that either compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires.

So what are courts and government officials to do? At first, the court says that religious motivation is enough to presumptively get an exemption, and that it doesn't matter whether the action or refusal to act is compelled by one's religious belief. But then it holds that the question is whether the action is compelled or forbidden (which means that refusal to act is compelled) by religious belief. Seems pretty inconsistent to me.

Michelle Malkin has a post that argues that Eric Muller and Greg Robinson have made factual errors in things they've posted in various places, including on this blog. Muller and Robinson in turn have posted on the subject here. It may be somewhat old news, but since it involves claims of errors, including ones that I'm told were in items posted on this blog, I thought I'd blog a link to those claims.

If you want more evidence that you shouldn't trust online polls, check out the Newsweek poll results, which show the online poll results (black) side by side with the scientific poll (grey). The gulfs are huge, because for many reasons the people who (1) heard about the Newsweek online poll and (2) were willing to take the time and trouble to go to the site and make their choices are highly unrepresentative of the typical American, typical registered voter, typical likely voter, or any other group of people whose views you might want to know.

Thanks to reader Stephan Oestreicher for the pointer.

Mickey Kaus quotes Teddy Davis of ABC News:

There is no way to know where Kerry will ultimately end up on Iraq.

If Davis is right -- and his column seems to support that position -- and if enough of the public ends up having that perception, that can't possibly be good for Kerry.

Saw this movie a couple of weeks ago, and was disappointed; it got very good reviews, and it certainly has some visually stunning items, but the story seemed melodramatic and hackneyed rather than tragic or mythic. Ann Althouse likewise wouldn't recommend it.

A reader writes, apropos the hostages for headscarves question:

I have not been following this matter, and have no firm opinion on how the French should respond. But you seem rather blithely to overlook the fate of the hostages. Surely their lives are more important than the head-scarf law, whether one approves of that law or not. Maybe the French government, rather than the French Muslims, should have changed positions. When a robber says, "your money or someone else's life," you give him your money.

1. I am certainly quite interested in the fate of hostages — but that's a much broader question than the fate of the hostages. Once you have paid him the Dane-geld you never get rid of the Dane. If you give in to terrorists to save the lives of these hostages, this substantially increases the likelihood that other terrorists will capture other hostages, to ask for more and more. To quote another truism, "Behavior that gets rewarded gets repeated."

2. Also, even independently of this the question, isn't whether the two hostages' lives are more important than the head-scarf law (which I do not approve of, incidentally). Rather, it's whether they are more important than the ability of Frenchmen to democratically govern themselves, rather than being governed by murderous thugs. Democratic self-government is not the most important thing in the world — but it's hardly chopped liver, either. Many more Frenchmen than two have died to protect it.

(I don't think the analogy to private payments is terribly helpful, for a variety of reasons. Among other things, I think governments do owe a different kind of duty to help their citizens who are victimized by criminals than we have to help strangers who are victimized by criminals, the latter being a matter of charity, rather than any other moral obligation. Moreover, I think the harmful long-term effects of paying off terrorists swamp whatever present benefits there might be.)

here.

Reader Jim Herd passes along this story; I particularly like the quote I set in bold below:

Many of France's more than 5 million Muslims have rallied surprisingly behind President Jacques Chirac in recent days, defending what most Muslims have bitterly opposed until now: a law prohibiting Muslim girls from wearing religious head scarves to school.

When students return to class today after the long summer recess, many Muslim schoolgirls will heed a strong message from their clerics — obey the law, even though it might violate your principles.

The striking change in mood is rooted not in local politics, but in a crisis unfolding thousands of miles away. The kidnapping of two French journalists in Iraq has resulted in unexpected unity after more than a year of rising anxiety about the growing religious fervor among Muslims in France.

A militant Islamic group threatened to execute the hostages unless France dropped its head-scarf law. . . .

The crisis appears to be driving even devout French Muslims to back the new law, arguing that rejecting it now would be seen as support for the kidnappers' demands.

"The government cannot repeal this law at this stage because they would immediately lose their credibility," said Dalil Boubakeur, rector of the Grand Mosque of Paris. . . .

For French Muslims, there is a sense of outrage that the kidnappers have tried to dictate their behavior from across the world, assuming that allegiance would be to fellow Muslims rather than to France.

"Nobody coming from the desert or the bush in Iraq can tell us what to do in France," said Abdallah Thomas Milcent, 45, a doctor who is the representative in Strasbourg in eastern France for the French Council for the Muslim Faith, an umbrella organization of Islamic groups. . . .

You got it, Doctor. Let's hope that's the view of most other Frenchmen, Muslim and not.

UPDATE: I'm pleased that Matt Yglesias agrees.