To its credit, Christianity Today magazine's weblog reports (thanks to Patrick Oden for the pointer):

Speaking of televangelists ...

Crouch [a figure from the preceding story] isn't the only TV preacher who needs help with his theology this week. In his September 12 broadcast, Jimmy Swaggart (remember him?) demonstrated exactly how not to oppose gay marriage. "I'm trying to find the correct name for it . . . this utter absolute, asinine, idiotic stupidity of men marrying men," he said. "I've never seen a man in my life I wanted to marry. And I'm gonna be blunt and plain; if one ever looks at me like that, I'm gonna kill him and tell God he died."

One might think that someone who has publicly experienced brokenness in his sexuality might be a bit more careful in his words. In this line of thinking, wouldn't the prostitute that Swaggart hired have been justified in killing him?

Homophobia might be a word thrown about too carelessly by the left, but remarks like Swaggart's are why the word exists in the first place. Let's be "blunt and plain": Biblically speaking, for a Christian minister to make such a comment is at least as sinful as it is for people to engage in homosexual activity.

The Canadian Radio Television Commission is investigating whether the broadcast, which aired on a Toronto station as well as several Christian stations in the U.S., constituted a criminal offense. The station that aired it apologized and called it "a serious breach" of Canadian broadcast regulations.

Jimmy Swaggart Ministries has removed the broadcast from its online archives.

One more related point: Leviticus 20:13 unfortunately does say "If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them." I am very glad that most, likely nearly all, American Christians — and even those who tend to endorse a literal approach to the Bible — do not to my knowledge take this as a literal suggestion to kill homosexuals. I'm sure there are good Biblical arguments for why this passage ought not be taken that way, and I certainly hope that people follow these arguments.

But it seems to me that Christian leaders, especially in those denominations that do often speak about the importance of literal adherence to the Bible — and particularly stress the literal force of the Bible when citing Leviticus 18:22 ("Thou shalt not lie with mankind, as with womankind: it is abomination") as their chief support for less militant opposition to homosexuality — be watchful for other Christian leaders who may have been unduly swayed by the isolated Leviticus 20:13 text, or who may in any event be reinforcing the tendency of some parishioners to focus on the isolated text.

Again, I stress that American Christians, including ones who are relatively literal in their Biblical interpretation, generally do not support killing homosexuals. Yet it seems to me that thoughtful Christians should be aware of the potential of Leviticus 20:13 to do harm (especially, as I said, when citing Leviticus 18:22), and should use those opportunities that arise to warn fellow Christians about it. The Swaggart outburst seems to me one such opportunity.

Mickey Kaus quotes a reader who makes an excellent point — last week, "Sandy Genelius, a network spokeswoman, said, 'We are confident about the chain of custody; we're confident in how we secured the documents'" (I'm quoting the Sept. 14 New York Times). But "[h]ow could they be confident of the chain of custody if, as appears, they never even spoke" to the National Guardsman from whom Burkett claims he got the documents (he now says he got them from some other source that he won't disclose)?

They might have had good reason to go with documents that they thought were properly authenticated (that's a strange thing to think here, but I still assume they did originally think it), even if the chain of custody — the evidence of how they got from the files to CBS — was bad. (I say "might.") But it seems just wrong, and knowingly wrong, to say that they "are confident about the chain of custody" in a situation like this.

On the other hand, who knows? Maybe the New York Times misquoted Genelius. What can one say after the failings of the media (perhaps the inevitable failings of any human institution) have been proven to one so often, at so many levels?

That's what's so sad: Surely the aggregate of Rathergate, the Jayson Blair scandal, the chronic misreporting about assault weapons, or any other individual incident, and everything else we've seen over the last several years — often thanks to the media criticism of blogging (a medium that thrives on media criticism) — has opened our eyes to just how little one can trust what one sees in the news media.

And yet no matter how skeptical one tries to be, one can't double-check everything. We have to trust outside sources. But the same sources that claim to be so trustworthy are, it turns out, often untrustworthy, sometimes in huge ways (falling for outright frauds) but also often in many small ways (media bias, whether political, social, or personal, that repeatedly leads to erroneous and misleading information).

I suspect this has been true all along — it's just that we can't ignore it any more. We have to learn to live with a world of extraordinarily imperfect information. And that's a lot more work than assuming that the media (or at least certain media) is highly accurate.

I continue to feel strongly about the need for ideological movements (whether Christians, liberals, conservatives, and so on) to police their own, and publicly condemn them when they merit condemnation. Nonetheless, I've gotten two kinds of responses that, if factually well-founded, would undermine this as to Swaggart.

First, a couple of people suggested that "kill them and tell God they died" is a colloquial phrase in Texas and Louisiana that is a facetious way of saying "I'm really annoyed by this person" — often someone close to you — but with no real connotation of killing, or even of murderous anger (see, e.g., this book title). I'd never heard of this usage before some readers told me about it; and the context, "And I'm gonna be blunt and plain; if one ever looks at me like that, I'm gonna kill him and tell God he died," with accompanying talk of "abomination" and "utter absolute, asinine, idiotic stupidity," surely didn't seem like good-natured joking about being really annoyed about something. Swaggart's manner also didn't seem humorous, and I suspect that at least people in his Canadian audience (the program was broadcast in Canada as well as in Louisiana) didn't see it as a joke. But I do want to flag the possibility that this was pretty misplaced and callous humor rather than serious anger.

Second, some readers suggested that Swaggart is so marginal that he doesn't merit attention, even negative attention. As reader David Allen colorfully put it,

While I agree with you in general (policing your own, etc), at what point of silly "off the deep end" nutcase do we get to ignore people? I mean, I can ignore the guy on the corner who gets arrested regularly for flashing traffic, saying God told him to, right?

In my book (and a lot of others, I think), Swaggart is a pathetic and previously exposed con-man. How long do we need to pay attention to him?

I was struck by Swaggart's statement because Swaggart was very big in the 1980s; he has been described as "the most popular television preacher of his day", and even accounting for some hyperbole, he was surely near the very top. The prostitute scandals, which led to his being disgraced and apparently disciplined by his own denomination, surely brought him down. But my assumption is that, given his continuing ministry and continuing TV presence, coupled with his past fame, he still has some influence — while many Christians rightly ignore him, he has enough sway with some that he does deserve denunciation. My sense is that anyone who is on television (and not just the 3 am local public access cable) has some potential to do harm.

Still, if my impression based on his past fame is mistaken, and Swaggart today really is a laughingstock with next to no influence, even in the evangelical community (the natural place for him to have some lingering appeal), then I agree that this makes condemning him much less important. Still worth doing, I think, but considerably less imperative.

UPDATE: A couple of readers, in making the second point I was responding to above, suggested that Swaggart was to modern American Christians was like Michael Moore to liberals and Democrats or Pat Buchanan to conservatives and Republicans. If that's right, then it supports my point that Christians should disavow appalling things said by Swaggart. Moore and Buchanan may not be middle-of-the-road Democrats or Republicans, but they do have substantial followings, I believe, within those movements. (Moore more so than Buchanan, I suspect, since Buchanan is generally seen as yesterday's news, but even Buchanan does still seem to enjoy, to the best of my knowledge, some respect from one corner of conservatism.) If Moore says outrageous things speaking as a liberal or a Democrat, or if Buchanan says outrageous things speaking as a conservative or a Republican, then mainstream leaders of those movements should indeed denounce them -- both to help stop such outrageous sentiments from spreading, and to protect the good name of the ideological movement generally.

On the other hand, if Swaggart is a much more marginal figure, like Lyndon LaRouche -- an analogy another reader drew -- then denouncing him becomes less important.

Swaggart says this about homosexuals:

I'm trying to find the correct name for it . . . this utter absolute, asinine, idiotic stupidity of men marrying men. . . . I've never seen a man in my life I wanted to marry. And I'm gonna be blunt and plain; if one ever looks at me like that, I'm gonna kill him and tell God he died.

The audience laughs and cheers, though when Swaggart is saying the "I'm gonna kill him" part, he sure doesn't seem to be joking. Andrew Sullivan points to the program, available here; check out the material starting at around 36:00 — I watched it, and the transcript is right. Later, as Andrew says, "Swaggart also claims he has nothing against 'the poor homosexual,'" except that he seems to think it's fine to kill them.

There's apparently talk about the Canadian government trying to punish this, since it was broadcast in Canada. I don't support that, and I'm quite sure that the First Amendment wouldn't allow such speech to be punished in the U.S.

But it seems to me that decent Christians ought to condemn this defender of murder, who publicly says that he'd violate the Ten Commandments when someone "looks at [him]" the wrong way, while purporting to preach God's word and lead Christian congregations. Tell us, at least, that this supposed Christian — who was once one of the nation's leading evangelists, until he was tripped up by another of the Commandments — doesn't speak for you.

UPDATE: Sweeney A. (Res Ipsa Loquitur) writes:

Eugene is certainly right that ethical people should condemn [Swaggart's] words, but one wonder's about Eugene's implication that this moral stain is automatically conferred to other Christians until they renounce it. One might say that for a Christian who has heard this comment to consciously refuse to renounce it is a tacit endorsement. That may be true, but the very terms in which Volokh has couched the ultimatum is unfair.

Since advocating murder because a gay man looks at you wrong is an obvious violation of the Christian ethic, why should Christians, qua Christians, feel obligated to renounce the remarks any more than people who share the last name of Swaggart?

For the record, I condemn the remarks, but Volokh's post was an unfair example of guilt by association.

Christianity is a belief system — not just an involuntary status such as race or ethnicity, but a consciously chosen belief system that is based on certain writings and certain traditions. Historically, Christians have often stressed the importance of those writings, which supposedly provide something of an objective standard of behavior, and of a Christian community, which helps enforce this behavioral standard. In recent decades, many Christians have also tried to downplay denominational differences (say, between Protestants and Catholics), and to stress the common purpose of those who follow Jesus's teachings.

When someone who is a Christian minister, and still something of a Christian leader, makes a claim about what Christian scriptures mean, it seems to me that those Christians who condemn his views — and condemn them as deeply evil, rather than just subtly or slightly wrong — do have a responsibility to speak out. Though this man calls himself a Christian leader, they should say, his is not the Christianity that we endorse. That, I think, is needed for them (1) to better educate their own children (whom they've presumably raised to have at least some respect for Christian leaders), (2) to diminish the chance that their fellow parishioners will be seduced from the righteous path by this Christian leader's cachet, and (3) to make clearer to the non-Christian world that the Christian mainstream does not endorse this interpretation of Christian scriptures.

That's not guilt by association: I do not condemn people simply because those who share their religious affiliation advocate bad things. I do expect Christians (or, in analogous situations, Muslims or religious Jews), as people who care about the reputation of Christianity and of the Christian community of belief, to want to tell the world: "True Christianity, as I understand it, doesn't endorse such atrocities" (and, in particular, doesn't follow Leviticus 20:13, "If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them"). And when people don't object to what is done in the name of their religion by those who claim to share it — when they don't express any interest in the religion's being tainted by the views of those who speak on its behalf — then I do wonder whether those people might in fact agree (or at least not strongly disagree) with those who purport to speak on their religion's behalf.

As to Swaggart's actions being "an obvious violation of the Christian ethic" — well, since so little is obvious in religion and in scriptural interpretation, it seems to me that non-Christians would understandably like some assurance from other Christians that this is indeed so. And Christians should try to remind those, like Swaggart and apparently some of his congregation, that they are indeed obviously wrong, and are undermining Christianity's reputation.

FURTHER UPDATE: I've gotten a bunch more messages along the vein of the one I quote in the UPDATE above; but I'm still of the view that I expressed originally.

I'm not asking for anything much — I'm simply saying that Christians should be outraged at Swaggart's essentially slandering their religion, and should denounce his views, to make clear that his views (though purportedly Christian) are not mainstream Christian views. Swaggart calls himself a Christian; was once a very prominent minister; continues apparently to have some influence; and purports to interpret the Bible. His statements are representations of what Christianity is supposed to be about. I would think that Christians would want to denounce those representations, and the closer they are in denomination to him (e.g., Protestants, evangelical Protestants, etc.), the more they would want to do that.

This is the standard that I use for members of my ideological movement — when Republicans say outrageous things, it seems to me that we Republicans ought to condemn them, to try to redeem the movement's good name. Careful readers of this blog will notice that I have done this in the past, and that many other Republicans have done it as well. This is one of the responsibilities of being part of an ideological movement, of urging others to join your movement, and of praising the movement as good for society: You need to police your own, or those who purport to be your own. Not an onerous responsibility, or an unreasonable imposition, it seems to me.

FURTHEST UPDATE: See above.

I'm glad to say that my Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones is now off my desk and sent to the law reviews. Now I can move on to some new projects (the chief one likely being Freedom of Speech and Child Custody).

Drudge was indeed right. Here's the official Rather statement:

Last week, amid increasing questions about the authenticity of documents used in support of a "60 Minutes Wednesday" story about President Bush's time in the Texas Air National Guard, CBS News vowed to re-examine the documents in question-and their source-vigorously. And we promised that we would let the American public know what this examination turned up, whatever the outcome.

Now, after extensive additional interviews, I no longer have the confidence in these documents that would allow us to continue vouching for them journalistically. I find we have been misled on the key question of how our source for the documents came into possession of these papers. That, combined with some of the questions that have been raised in public and in the press, leads me to a point where-if I knew then what I know now-I would not have gone ahead with the story as it was aired, and I certainly would not have used the documents in question.

But we did use the documents. We made a mistake in judgment, and for that I am sorry. It was an error that was made, however, in good faith and in the spirit of trying to carry on a CBS News tradition of investigative reporting without fear or favoritism.

Please know that nothing is more important to us than people's trust in our ability and our commitment to report fairly and truthfully.

Here's the CBS statement on Bill Burkett's role in all this:

Bill Burkett, in a weekend interview with CBS News Anchor and Correspondent Dan Rather, has acknowledged that he provided the now-disputed documents used in the Sept. 8 "60 Minutes Wednesday" report on President Bush's service in the Texas Air National Guard.

Burkett, a retired National Guard lieutenant colonel, also admits that he deliberately misled the CBS News producer working on the report, giving her a false account of the documents' origins to protect a promise of confidentiality to the actual source.

Burkett originally said he obtained the documents from another former Guardsman. Now he says he got them from a different source whose connection to the documents and identity CBS News has been unable to verify to this point. Burkett's interview will be featured in a full report on tonight's CBS Evening News with Dan Rather . . . .

And here's more from CBS.

A reader writes, apropos the various posts on homosexuality:

I think the basic problem is simple: many people find anal sex to be gross. Unfortunately, in thinking so, people seem to very carefully overlook the reality that pretty much EVERY form of sex is pretty darn gross from the standpoint of "finer sensibilities." It's just that human lust seems to be in part designed to help overide such considerations and carefully change the subject from "hygine" to "hell yeah!" Some blinders seem built in to the human psyche, and, I guess, thankfuly so.

I've always thought that if people applied otherwise applicable standards of ickiness to sex or to food, no-one would ever enjoy either. (Do you know what's crawled all over that carrot? Do you know how many microscopic bugs there are on that sandwich?)

The Drudge Report reports:

EXCLUSIVE // Mon Sep 20 2004 11:58:02 ET STATEMENT FROM DAN RATHER:

Last week, amid increasing questions about the authenticity of documents used in support of a 60 MINUTES WEDNESDAY story about President Bush's time in the Texas Air National Guard, CBS News vowed to re-examine the documents in question—and their source—vigorously. And we promised that we would let the American public know what this examination turned up, whatever the outcome.

Now, after extensive additional interviews, I no longer have the confidence in these documents that would allow us to continue vouching for them journalistically. I find we have been misled on the key question of how our source for the documents came into possession of these papers. That, combined with some of the questions that have been raised in public and in the press, leads me to a point where -- if I knew then what I know now -- I would not have gone ahead with the story as it was aired, and I certainly would not have used the documents in question.

But we did use the documents. We made a mistake in judgment, and for that I am sorry. It was an error that was made, however, in good faith and in the spirit of trying to carry on a CBS News tradition of investigative reporting without fear or favoritism.

Please know that nothing is more important to us than people's trust in our ability and our commitment to report fairly and truthfully.

I don't know whether this is authentic -- I guess we'll hear soon enough if it isn't.

Thanks to reader Stephen St. Onge for the pointer.

Many thanks to all those who responded to my Friday post on moral relativism and liberals. I'm guest-blogging at GlennReynolds.com this week (though I'll still be posting more often here than there), and I've posted a much elaborated version of my post there. I hope the version responds to most of the objections that I've gotten, though I hope to blog some more responses here later today.

at PointOfLaw.com. See the first pro-Kerry post (from Ron Chusid, Doctors for Kerry) and the first pro-Bush post (from Ted Frank, a lawyer and coblogger at OverLawyered.com).

I got an e-mail from a blogger mentioning this post, which faults Mayor Bloomberg for urging arrested protesters to plead guilty. The newspaper article about Bloomberg's statements says:

Everyone arrested during the Republican convention "might as well just plead guilty and go on" rather than take their fight to court, Mayor Bloomberg said yesterday.

Hundreds of people who were arrested during the GOP convention last month claim they were wrongly detained, abused by cops and held longer than necessary in order to keep them off the streets.

But Bloomberg insisted that there's no proof that the NYPD did anything wrong. "There is absolutely no evidence whatsoever that there was any intent by any law-enforcement official to hold people any longer than was absolutely necessary to process them," he said before marching in the Mexican Day Parade on Madison Avenue.

Bloomberg pointed out that many protesters who were arrested have already pleaded guilty. "I suspect that most of them [did so] because they know they don't have a case," he said. "They broke the law . . . They might as well just plead guilty and go on."

The poster proceeds to call Bloomberg and his remarks, a "jackhole," an "unmitigated moron," an "idiot," an "impaired imbecile," "limitless[ly] stupid[]," a "buffoon," "clunkhead," "inane," and "plain dumb." Why? Here's the argument, shorn of the rhetoric. Because of the principle "Innocent until proven guilty," "the Fifth and Sixth Amendments," and "[t]he government['s being] required to prove its case beyond a reasonable doubt," it's somehow wrong for the mayor to even urge — not force, but just urge — people to plead guilty.

Not much of an argument, it seems to me. Certainly people who are guilty — recall that Bloomberg's assertion, which the poster does not criticize on the facts, is that the people are indeed guilty — are entitled to plead not guilty and demand a trial. But government officials are equally entitled to suggest that the cases against them are strong, and that it's better for them as well as for the city to admit their guilt.

What's more, presumably Mayor Bloomberg believes that the protesters are not only legally guilty, but also morally culpable. If so, then he is certainly free to argue that it's even morally better for them to admit their guilt, rather than to waste New York taxpayers' money and city officials' time and effort challenging the prosecution.

That one has a constitutional right to do something (whether it's to publish a racist manifesto, burn the American flag, get an abortion, have ten children that one can't afford, own a gun, or plead not guilty) doesn't mean that government officials are somehow "idiot[s]" for arguing to people that the better — better for the person, better for the City, and better morally — course of action is not to exercise that right. Naturally, one may disagree with them on the merits, by explaining why one thinks the person should indeed exercise the right; but simply saying that it's a constitutional right hardly resolves the question whether it's right, moral, or wise for the person to exercise it.

But beyond this, if I'm right and the poster is mistaken (and that the Mayor's position is at least defensible, whether or not one thinks it's clearly correct), wouldn't it have been a little more prudent for the poster to have made his objection more calmly? First, this might have made it easier for him to notice that while the post was long on rhetoric, it missed an important logical step — the explanation for why having a constitutional right to demand a trial should lead one to think that it's improper for government officials to urge people not to exercise that right. And, second, I know that I'd be less embarrassed to have made an error when the error led me to say "this is why I think the Mayor is mistaken" than when it led me to throw a bunch of personal insults.

The New York Times reports that

After days of expressing confidence about the documents used in a "60 Minutes" report that raised new questions about President Bush's National Guard service, CBS News officials have grave doubts about the authenticity of the material, network officials said last night.

The officials, who asked not to be identified, said CBS News would most likely make an announcement as early as today that it had been deceived about the documents' origins. CBS News has already begun intensive reporting on where they came from, and people at the network said it was now possible that officials would open an internal inquiry into how it moved forward with the report. Officials say they are now beginning to believe the report was too flawed to have gone on the air.

But they cautioned that CBS News could still pull back from an announcement. . . . The developments last night marked a dramatic turn for CBS News, which for a week stood steadfastly by its Sept. 8 report as various document experts asserted that the typeface of the memos could have been produced only by a modern-day word processor, not Vietnam War-era typewriters. . . .

[O]fficials decided yesterday that they would most likely have to declare that they had been misled about the records' origin after Mr. Rather and a top network executive, Betsy West, met in Texas with a man who was said to have helped the news division obtain the memos, a former Guard officer named Bill Burkett.

Mr. Rather interviewed Mr. Burkett on camera this weekend, and several people close to the reporting process said his answers to Mr. Rather's questions led officials to conclude that their initial confidence that the memos had come from Mr. Killian's own files was not warranted. These people indicated that Mr. Burkett had previously led the producer of the piece, Mary Mapes, to have the utmost confidence in the material.

It was unclear last night if Mr. Burkett had told Mr. Rather that he had been misled about the documents' provenance or that he had been the one who did the misleading. . . .

I just read Larry Solum's post on hypotheticals that Orin praised, and I agree: It's a great post that every incoming law student — and maybe even some who have been in school for a year or two — should read.

UPDATE: Or to really persuade you, following the lead of Larry's post itself, it's a great post. It's a great post. It's a great post. (And, no, I'm not going to explain this.)

Ralph Luker has notes on two recent books on the subject, which cover Ambrose, Bellesiles, Ellis, and more.

From the Grapevine's preliminary look at galleys, it appears that Hoffer [one author] finds larger patterns of plagiarism in the work of Ambrose and Goodwin than they were initially charged with. He does apparently find Bellesiles guilty of having committed fraud. And he does, apparently, find the personal deceptions of Joseph Ellis having crept into his otherwise distinguished published work. A more ominous note, suggesting that Hoffer has spread his net far beyond Ambrose, Bellesiles, Ellis, and Goodwin, makes me think that historians . . . will glance at the packaging, take it to our offices, close the door behind us, and check to see if our names appear in the index. . . .

My local Borders confirmed it.

please include the entire text of the post as well as the particular post's URL: This makes it much easier for us to read the post -- and thus much more likely that we will read it and consider linking to it.

A CBS News poll reports that women favor Bush 49-42; since the total margin for Bush is 50-41, this suggests that the margin for men must be around 51-40 or thereabouts, which means there's really no gender gap. A Newsweek poll from Sept. 9-10 showed likewise showed no gender gap (there, the gap was 0%, but the 2% gap is statistically indistinguishable from 0%).

On the other hand, a July 29-30 Newsweek poll showed a 10% gender gap (48-37 vs. 43-53); a July 8-9 Newsweek poll showed a 5% gender gap. I don't know why the results are different now, and I'm not sure whether it's a fluke or part of a trend. Still, it seems worth noting.

Thanks to InstaPundit for the pointer.

Conservatives often accuse liberals of "moral relativism." Now I surely disagree with most liberals on many specific moral issues. But I'm puzzled about exactly what the commonly heard charge of moral relativism in general, as opposed to a charge of moral error on a particular issue, means.

I take it that it can't be that liberals don't believe in moral principles. They surely do: Most liberals, for instance, believe that race discrimination is wrong, rape is wrong, murder is wrong, legal interference with a woman's right to get an abortion (at least until a certain gestational age) is wrong, and so on.

Now it's true that, to liberals, some of these principles admit of exceptions — but surely this is true of conservatives, too. Liberals, conservatives, and libertarians all agree, for instance, that killing is generally bad, but the definition of when killing is evil and when it's permissible (or even laudable) necessarily has to be pretty nuanced, so that it properly treats killing in self-defense, killing in war, and the like. In fact, some liberals of the pacifist stripe may employ a more nearly absolute prohibition on killing (at least of born humans) than conservatives do — in my view, that's their moral error, but it's not an error of moral relativism.

Likewise, liberals, conservatives, and libertarians endorse what one might call "situational ethics" at least in the banal sense that the morality of certain actions turns not just on the simple three-word summary of the act ("X killed Y") but also on aspects of the situation: Did X have moral justification to kill Y? Did X have some excuse, for instance that he sincerely believed that Y was about to kill him, though he was regrettably mistaken? Are there other reasons why we would say that X's actions aren't as evil as some other similar actions, for instance because X is a 5-year-old who couldn't really understand what he was doing? (Many liberals might set the threshold for when a child is too young to be fully tasked with the moral weight of his actions differently than conservatives, but I take it that all of us would have some such threshold.) Or might there be something significant about X's motives that diminishes, even if it doesn't eliminate, his moral culpability, for instance because X beat someone up because of a genuine provocation (e.g., the beating victim had insulted X's daughter) as opposed to for money or because of a cold-blooded desire to inflict pain?

It's true that some people do employ a sort of cultural relativism, in which actions are made right or wrong by the country or culture in which they happen. This is far from a purely liberal principle, though; in fact, sometimes it's liberals who are most universalist in their calls for human rights. Moreover, while I'm generally not wild about this approach, it seems to me that at least as to some things it does make sense: Separation of church and state is a good principle (at least in some interpretations) for the U.S., but I'm not sure that it should necessarily be equally applied to other countries (for instance, to require England to entirely disestablish Anglicanism). But in any event, this is too tangential a matter, and a matter too divorced from the liberal/conservative divide, to be what the "moral relativism" claims are all about.

So is there anything to this charge about liberals being "moral relativists," or at least being so materially more often than conservatives? (I'm not asking whether isolated liberals have at times made truly moral relativist arguments, whatever they may be, but rather whether liberals generally are more likely to endorse such views.)

Or is this just a neutral-sounding allegation that really masks disagreement on specific contested moral issues? And if it's the latter, wouldn't it be more candid and more helpful to specifically say "I think liberals make this moral error on this subject for this reason," rather than levying empty accusations of "moral relativism"?

A couple of days ago I posted something responding to a Les Kinsolving column that criticized Cheney's support for his lesbian daughter. My post, which was just a titch sarcastic, explained that though Mr. Kinsolving was suggesting that this sort of thing could lead to sadomasochists having the right to get married, too, it turns out that sadomasochists are already entirely free to get married. So are people who want to engage in sodomy (a term that Mr. Kinsolving used pejoratively, but which can include oral and anal sex, and sex within opposite-sex couples as well as same-sex couples).

I then got into this interesting e-mail exchange:

[A reader:] Sexual depravity is ruining America morally. Why are you supporting that?

[Me:] What kind of sexual depravity? Husbands and wives having oral sex (which is indeed part of the definition of sodomy)? Can you give me any evidence that this is ruining America morally? . . .

[The reader:] Sodomy as commonly understood by probably over 95% of native English speakers: "anal sex between two men". You may be right in saying the current definition includes other sexual acts, but those are not what Sodom was famous for, and the act it gave its name to. Homosexuality is debasing to all who take part in that perversion. The finer sensibilities that distinguish humans from animals, these are partly benumbed by this debasing act. All society suffers proportionately.

[Me:] (1) Well, Mr. Kinsolving doesn't seem to take this view, since he seems to oppose lesbianism, too. [Recall that the Kinsolving column began with a criticism of Cheney's lesbian daughter, not of male homosexuals.]

(2) You make assertion after assertion, but you give no support for them. Why is it exactly that I suffer because two friends of mine decide to have sex in a particular way in the privacy of their own home? Why does it even debase them? Why does it erode the finer sensibilities that distinguish humans from animals? Again, you just say these things — why should I believe them?

[The reader:] The fact that you cannot determine that sexual perversions such as sodomy are debasing is in itself evidence that you are unable to determine what the truth is at this time. When you begin to search for truth with the aim to live the truth, you will find it.

God made us for a reason.

Well, that's logic for you! God made us for a reason. That reason (isn't it obvious?) must be "to avoid having anal sex." The people who seem to have a pretty strong urge to have anal sex with each other — what about them? Well, God obviously made them for the same reason, which is that they should avoid having anal sex. (Whatever you may think about whether homosexuality is genetic, it does seem that there are some people who do have a pretty strong desire to engage in homosexual conduct, about as strong as heterosexuals' presumably God-given desire to have genital sex.)

What's more, you don't even need quotations from the Bible any more to prove this: The very fact that the listener doesn't agree is just evidence of how foolish he is. QED. Hey, I'm persuaded — how can one resist the force of an argument like that?

Slate's Explainer has a pretty good explanation of what assault weapons are and they aren't (for instance, it turns out that they aren't fully automatic -- have I ever mentioned that?). One flaw, though, comes in the perennial attempt to explain how "assault weapons" are different from the tens of millions of other semiautomatic guns out there (other than, for instance, in having bayonet lugs):

The law's authors had to be as precise as possible in crafting the ban, since the phrase "assault weapon" isn't really part of the gun-making vocabulary. Rather, it's a catchall term that gun-control advocates define as covering any firearm designed for rapidly firing at human targets from close range.

The trouble is that nearly all handguns are designed for rapidly firing at human targets from close range. They're mostly intended for self-defense, not hunting (hence human targets). They're relatively short-range weapons, as opposed to rifles. And they're designed for rapidly firing, since if someone is attacking you, you'd like to shoot at him several times before he shoots you (or knifes you or clubs you).

If I recall correctly, about half the 80 million or so handguns in civilian hands in the U.S. are semiautomatics. To my knowledge, "assault weapons" don't fire materially faster than semiautomatic handguns; certainly rate of fire isn't part of the definition of "assault weapon." Most of the other half are revolvers, which to my knowledge have a theoretical rate of fire that's less than that of semiautomatics. But all of them can easily fire a round every second or two; and the main constraint is the time it takes to aim again, which means that practically speaking semiautomatics and revolvers have a comparable effective rate of fire.

So if the definition Slate gives is accurate, then virtually all handguns (except the few single-shot pistols that have to be reloaded after every round, and that thus aren't very effective for self-defense) would be "assault weapons" to gun control advocates. I don't know whether most gun control advocates do think so. But if they do, then that's further reason for gun rights advocates to worry about calls for banning assault weapons.

I'm pleased to report that this article will be published in the Stanford Law Review, volume 57, issue 4, next February.

Reader John Griffin asks:

I though the Internal Revenue Code prohibited political endorsements by religious institutions and religious organizations. Yet, here is a link to an article in The Philadelphia Inquirer about competing endorsements from two religious organizations concerning the US Senate race in Pennsylvania. Curious that they chose opposite candidates, but problematic, are they not?

It's hard to tell for sure without knowing more details, but it might well be entirely unproblematic — and rightly so.

There's nothing illegal about religious institutions or organizations as such endorsing political candidates. In fact, if religious organizations were specially banned, because of their religiosity, from endorsing candidates, that would violate both the Free Speech Clause and the Free Exercise Clause (the latter because it would constitute impermissible discrimination against religion).

Organizations, religious or not, that receive tax-deductible charitable contributions may not engage in electioneering using those funds. There are accounting requirements aimed at making sure that tax-deductible funds aren't used for such purposes, and that endorsements are indeed done only using non-tax-deductible funds. (That's why many organizations have a 501(c)(3) branch that collects tax-deductible contributions and doesn't engage in direct electioneering, and a 501(c)(4) branch that collects non-tax-deductible contributions and does engage in direct electioneering.) Sometimes people have charged that various religious groups have violated those rules.

But this story suggests simply that a bunch of ministers have come together into a couple of groups, and then used those groups make whatever endorsements they like. So long as the groups don't take tax-deductible funds — and there's no reason why they should, since they probably don't need much money to fulfill their very narrow role — the groups are free to express their members' views.

offers help with writing a certain kind of document.

Oh, what a tangled web we weave When first we practice to deceive But when we've practiced quite a while How vastly we impove our style.

I just learned that Randy Kozel, who was a student in my Thorny Problems of Free Speech Law seminar last Fall at Harvard, has accepted an offer to publish his seminar paper (on government employee speech) in the Northwestern Law Review. He had circulated it a few weeks ago, three months after he graduated, and got offers not just from Northwestern but also from another Top 20 law review.

I mention this to encourage other students who are afraid that they can't get their pieces published anywhere, or at least anywhere good. Yes, there is some prejudice against non-lawprof submissions (and even more against submissions from people who are still law students). But this shows that even Top 20 journals take such papers seriously, of course if they're good (and Randy's is very good).

Moreover, as I've mentioned before, other people I know have had pieces published even while they were still law students -- with one exception not in the Top 20 main journals, but still in Top 50 main journals or specialty journals at the Top 10 schools. (Sasha had his n Guilty Men piece published in the University of Pennsylvania Law Review before he even started law school, but oddly enough there might be a little less discrimination against non-lawyers than against current law students. And, besides, he's Sasha.)

Incidentally, I should also mention that many lower-ranked journals are as professional, diligent, and helpful as the higher-ranked journals; and publishing in those journals will still provide a very good credential. But, let's face it, the pecking order is out there, whether you like it or not, and it's good to know that quality work can find a place in journals near the top of that order.

The Selectric computer museum shows in pictures part of what I said in words yesterday.  People forget what even proportional spacing looked like ca. 1972.

This Selectric typewriter museum has put up examples of both IBM Selectric and IBM Executive typing, the latter with proportional spacing.  Retyping one line from the forged memos, they quite dramatically show the differences between modern computer fonts and even proportional spacing in the 1960s and early 1970s.

Although the examples don't show the Times New Roman font, they do illustrate that, even with proportional spacing, these typewriters looked NOTHING like MS Word.  In particular, proportional spacing then had discrete, non-overlapping characters, not the "pseudo-kerning" present in the forgeries and MS Word.    In the lines typed at the museum, note particularly the "fr" in "from," where (unlike modern versions of MS Word) the "r" is not tucked under the "f." Also, note the point I made yesterday that proportional spacing then left a full two spaces between sentences, unlike Times New Roman in MS Word and the forgeries.

This illustrates that Mr. Glennon, the former IBM typewriter repairman now relied on by CBS, is not remembering things accurately (assuming that he is trying to be truthful).  Not all versions of "proportional spacing" are created equal, the version available in 1972 was so crude that no one who sees it could mistake it for the MS Word version apparently used in the forgeries.

As Adobe font expert Mr. Phinney reported yesterday in the Washington Post, none of the possible 1972 era office machines (including presumably the IBM Selectric, Executive, and Composer), which he fairly extensively tested, could have produced the CBS forgeries, in part because of the different character widths that are shown in the Selectric museum's examples and their lack of "pseudo-kerning."

Over 24,000 according to eXTReMe Tracking, over 31,000 according to SiteMeter, with pageviews about 30% above that.

Yesterday Slate posted this item, with the front-page teaser "Sorry, Hoss: You Have No Right To Bear Arms":

Wake Up, Little Uzi Is there an individual right to carry a gun? Posted Monday, Sept. 13, 2004, at 10:44 AM PT

With the 10-year-old ban on assault weapons set to expire tonight, debate rages yet again about the rights of gun owners under the Second Amendment of the Constitution. Three years ago, this "Explainer" attempted to answer this narrow legal question: Does the Second Amendment confer a personal right to bear arms upon American citizens?

The earlier Explainer, dated July 10, 2001, reported that, though there's a hot academic and public debate about the meaning of the Second Amendment, "virtually every lower court has accepted the state militia/collective rights test as a settled point of law" — fair enough as of July 10.

But in October 2001, the Fifth Circuit court of appeals held that there is indeed an individual right to keep and bear arms (though far from an unlimited one), see United States v. Emerson. This still leaves a lopsided split against the Fifth Circuit's position: There are probably seven or eight circuits on the states' right side, all dating back from the era where the states' right side was largely unchallenged orthodoxy in the courts of appeals (though the Ninth Circuit's Silveira v. Lockyer decision did provide a spirited and detailed defense of the states' right view, though over spirited and detailed dissent).

Still, it seems pretty clear that something has changed — the issue is now clearly a matter of judicial debate as well as academic and popular debate, and in fact quite a few judges on other circuits have also spoken up in favor of the individual rights position. The law has shifted from settled to at least somewhat unsettled. Judges on other circuits are debating the matter anew. It seems to me a mistake for Slate to recycle pre-Emerson summaries as if nothing at all had happened.

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 . . . .