The Volokh Conspiracy

I don't intend to blog much more on this, but since a bunch of people raised this point, let me speak to it. The argument (buttressed sometimes by citations to the movie Gattaca) is that rich people will improve their kids' genes, which will increase social stratification, as descendants of the poorer people will find it harder to compete. I profoundly disagree with this argument.

1. If you take this seriously, it would be largely an argument against private education (and I've heard the argument made this way), since of course private education lets rich parents improve their kids' competitiveness relative to poor kids. You might even be upset when smart people marry other smart people.

Would you support "breeding for equality," in which smart people self-consciously try to marry dumb people, so their kids wouldn't have too much of an unfair advantage? Or how about programs that try to persuade smart men that the feminine ideal should indeed be the dumb airhead woman (and, of course, to persuade smart women that they should marry dumb men)? Yes, I realize that there's potentially a significant difference in degree between the IQ benefits to be gained by genetic engineering and the IQ benefits to be gained by lay genetics (i.e., smart people marrying smart people) or education. But I stress the "potentially," and in any event the principle strikes me as quite similar.

2. Technological progress is on balance very good, and generally speaking it's disproportionately produced by smart people (technologists, businesspeople, and so on). More smart people means more chance of cures for disease, of better transportation and information technology, of space flight, of good environmental inventions, and so on. Yes, it's true that smart people do harm, too; if Hitler had been dumber, the 20th century might have been less bloody. But on balance, I'm pretty sure that it's good for society generally to have more smart people.

3. Most technologies -- computers, CD players, and the like -- start out expensive enough that only rich people or institutions can afford them, but then, with technological development and economies of scale, the price falls, and more and more people can access the technology. Some Americans may be too poor to afford them, but most Americans can afford technology that provides most of the key features. Rich people can still afford better stuff, but the marginal quality difference between what the 90th percentile can afford and what the 50th percentile can afford isn't that vast. (Consider, for instance, personal computers.)

So if you're concerned that only the top 5% will ever afford getting higher IQ for their kids, that seems highly unlikely. And if you're concerned that only the top 70% will afford it, and oppose the technology because of the bottom 30%, then I think you have the wrong set of priorities. Work on ways to eventually make it accessible even to the bottom 30%, rather than denying it to the top 70%.

There's an old Soviet joke about the man who visits Hell. In Hell, there are three giant cauldrons in which the sinners are being boiled. On the rim of one stands a regiment of demons, shoulder to shoulder, constantly using their pitchforks to smack down the sinners who are trying to escape. On the rim of the second walk a few demons, who occasionally whack someone down. The rim of the third is empty, but no-one is getting out.

What's going on here?, the visitor asks. "There are three kinds of people," the Devil says. (In the original joke, they are Jews, Russians, and Ukrainians, but in honor of the Orange Revolution I've sworn off Ukrainian jokes . . . .) "The first kind is in the first cauldron. When one looks like he's trying to escape, all the rest follow him. We need a lot of demons to manage them.

"The second kind is in the second cauldron. Occasionally someone is trying to escape, but the others don't pay any attention. It takes just a few demons to deal with this kind.

"The third kind is in the third cauldron: When one is starting to escape, all the others drag him back down by the ankles."

Don't be that third kind.

A reader writes:

I was offended by the way Blunkett, and, for that matter, you, glided over the concept that Judaism is a racial characteristic. Jews are not a race, any more than Anglicans or Catholics. Part of the persistence of anti-semitism lies in the thoughtless assumption that there is a race of people known as Jews, instead of a collection of individuals who have certain beliefs.

Well, everyone has a perfect right to be offended by whatever they please. Nonetheless, as I noted in my post, Jews are an ethnic group, though Judaism is also a religion. People can be ethnically Jewish though irreligious — many Jews are.

Certainly many anti-Semites hate Jews without regard to their religion; the Nazis went after the irreligious Jews as well as the devout Jews, and so did the Soviets. Much anti-Semitic propaganda focuses on Jews' supposed ethnic or cultural traits, not their religion. Nor is this just an anti-Semitic view; as I understand mainstream Jewish religious teachings, someone whose mother is Jewish, which is to say generally someone who is ethnically Jewish, is "Jewish" for purposes of Judaism even if he is an atheist.

I realize that there's some fuzziness about the definition of "ethnicity" (it usually turns on people's descent, but descendants of converts to Judaism may often be treated as ethnically Jewish, just as descendants of people who moved to Ireland not long ago may often be treated as ethnically Irish — especially when the descendants are now not in Ireland in any more, and especially if they characterize themselves as Irish). But there's also fuzziness about what constitutes "race." Suffice it to say that an ethnic group is a group that's usually linked by descent and culture, and that perceived itself and is perceived by others as an ethnic group. We need not delve further into this here, except to say that Jews are often treated as an ethnic group much as are Irish, Poles, Gypsies, and so on.

I prefer to use the term "ethnicity" rather than "race" to refer to Jews. Historically, however, the term "race" has also included what we now think of as ethnicity, so Jews, Italians, Irish, and such were sometimes called "races" rather than just ethnic groups (see here). I inferred from the article in the English newspaper that U.K. "incitement of race hatred" law either explicitly applies both to races and ethnic groups (Jews, Irish, and the like), or applies to races but with "race" interpreted — as one important old U.S. statute is interpreted — to include ethnic groups. (UPDATE: Reader Dan Neidle confirms, saying that "[t]he relevant legislation (Part III of the Public Order Act 1986) defines 'racial hatred' to mean 'hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.'")

"Spending Delaware time" (or "Delawaring") -- spending at least 20 hours a week on one's blog, enough to be treated as a journalist for the Delaware journalist's privilege.

"Honey, aren't you spending too much time posting to that blog of yours?"

"Darling, I'm just trying to make sure that I'm covered by the journalists' privilege in Delaware.

(The privilege applies to "any journalist, scholar, educator, polemicist, or other individual who" "was earning his or her principal livelihood by, or in each of the preceding 3 weeks or 4 of the preceding 8 weeks had spent at least 20 hours engaged in the practice of obtaining or preparing information for dissemination . . . to the general public.)

The Washington Post has an article about sex-selection technologies for couples who are planning to have a baby, and includes the following quote:

"It runs the risk of turning procreation and parenting into an extension of the consumer society," said Michael J. Sandel, a political philosopher at Harvard University. "Sex selection is one step down the road to designer children, in which parents would choose not only the sex of their child but also conceivably the height, hair color, eye color, and ultimately, perhaps, IQ, athletic prowess and musical ability. It's troubling."

Now I agree that there's likely to be a slippery slope phenomenon here, likely either an attitude-altering slippery slope or a small change tolerance slippery slope (see here). But what's at the bottom hardly seems so bad. Some of the floats in that particular parade of horrible are actually quite nice -- I'd love to choose a higher IQ for my kids, and society would generally be better if we could do that, too. (One mustn't overrate intelligence as a cure to the world's problems, but one mustn't underrate it, either.)

Now some of the selection conditions -- hair color and eye color, for instance -- seem pretty shallow. But so what? Parents do shallow things, and are entitled to do them, too, if they don't hurt their kids; and selecting hair color or eye color won't hurt their kids. Likewise, I suspect, for selecting height, athletic prowess, or musical ability.

Now I can see some possible arguments about why this might be bad. Parents who select certain traits for their kids might end up demanding that their kids live up to those traits. "You will practice the piano, and you will like it! I spent $30,000 to get you the piano gene." Maybe. But parents do that these days, too, with traits that they think their kids ought to have -- or traits that they've tried to instill through education, rather than genetics. Do we object to parents trying to create "designer teenagers" because they spend money training their kids athletically, musically, or intellectually? Do we try to suppress those educational technologies? Or do we conclude that on balance more ways for parents to try to improve their kids' futures are better, even if some parents might use those ways unwisely?

I can certainly see some objections to particular design techniques or options. If certain techniques risk kids being born with serious genetic defects, then I'd be "troubl[ed]." But I suspect most parents wouldn't want those techniques, either, and in any case that's an objection to a particular technique, not to the notion of molding one's children's genetics. Likewise if some genetic traits help kids at the expense of others (imagine a gene that makes people resistant to some contagious disease but increases the chance that they'd be asymptomatic carriers) -- troubling, but properly solved by dealing with that particular trait, not by objecting more generally to parents improving their children's lives, or even selecting relatively neutral cosmetic features (such as eye color or hair color).

Thanks to reader Greg Weber for the pointer.

Raffi Melkonian points to the English proposal to ban incitement of religious hatred as an example of a slippery slope (what I call the "equality slippery slope"):

The British home secretary, David Blunkett, has proposed a ban on speech that incites religious hatred. The law would obviously be unconstitutional in America, I think, since it throughly fails the Brandenburg test. But far more astonishing is one of Blunkett's arguments in favor of the ban. As he puts it today in the Observer,

For example, how can a modern society say Jews are protected (rightly, because they are covered by race laws, rather than religion), yet Muslims and Christians are not? Can it be right that hatred based on deliberate and provocative untruths about a person's religion remains unchallenged?

But this is a particularly weak argument, because it doesn't explain why laws against incitement to racial hatred (but which fall below the barrier to incitement to violence) ought to exist. And for those of us who have heard Professor Volokh's Slippery Slope talk (or read the article), I can't think of a more paradigmatic example of how one undesirable law can be used to faciliate the passage of another one later.

For more on equality slippery slopes, see here (especially starting at p. 17). One way of thinking about this is "censorship envy," as some groups that might otherwise tolerate offensive speech demand its restriction when they see that speech which is hostile to other groups is restricted. (See my explanation of why this should lead us to resist calls to ban flagburning.) Or one could focus on voters in the majority, as the equality slippery slope analysis does: If one important part of a pro-free-speech majority coalition values equal treatment of speech, then carving out one exception may lead them to swing around to supporting another exception, because their preference for equal treatment (e.g., of speech that's hostile to Jews, an ethnic group, and speech that's hostile to Muslims, a religious group) overcomes their support for free speech rights.

In any case, all this suggests that supposed free speech "extremists" or "paranoids," such as those who are (sometimes) in the ACLU, aren't paranoid at all: They are quite reasonably fearful that recognizing even narrow exceptions from free speech (e.g., for inciting racial hatred) may lead to broader ones in the future (e.g., for inciting hatred towards religions, which are after all ideologies that sometimes merit condemnation or even hatred).

UPDATE: The original version of this post said "Muslims, a racial group" instead of "Muslims, a religious group," which made no sense; I accidentally used the wrong word. If you were confused by this at first, my apologies, and I hope this update clarifies it. Thanks to David Ball for pointing out the error to me.

My post below labels Delaware "The Polemicist State," because it seems to be the only state that includes the word "polemicist" in its statutes.

Similarly, let me suggest that Colorado, Kansas, and Texas are The Dildo States, since their prohibitions on distributing sex toys specifically mention "dildoes." Hey, at least they don't engage in circumlocutions, such as "crime against nature." (What would the equivalent for sex toys be — "devices against nature"?)

Massachusetts is The Good Humor State — not just a statute, but an actual constitutional provision (Part The second, Chapter V, section II), says:

Wisdom, and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of legislatures and magistrates, in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humor, and all social affections, and generous sentiments among the people.

Knowledge and learning, generally diffused through a community, being essential to the preservation of a free government; and spreading the opportunities and advantages of education through the various parts of the country, being highly conducive to promote this end; it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools, to encourage private and public institutions, rewards, and immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affections, and generous sentiments, among the people . . . .

It would be tempting to likewise label Indiana The Whoredom State — it's the only state that mentions a derivative of the word "whore" in its statutes — but that would be unfair. See Indiana Code 34-15-5-1, "Every charge of incest, homosexuality, bestiality, fornication, adultery, or whoredom falsely made against any person is actionable in the same manner as in the case of slanderous words charging a felony."

Reader Fritz Schranck points out that the Delaware journalists' privilege covers, in relevant part:

any journalist, scholar, educator, polemicist, or other individual who either:

a. At the time he obtained the information that is sought was earning his or her principal livelihood by, or in each of the preceding 3 weeks or 4 of the preceding 8 weeks had spent at least 20 hours engaged in the practice of, obtaining or preparing information for dissemination with the aid of facilities for the mass reproduction of words, sounds, or images in a form available to the general public; or

b. Obtained the information that is sought while serving in the capacity of an agent, assistant, employee, or supervisor of an individual who qualifies as a reporter under subparagraph a.

I love how this includes "polemicists." Just try arguing that bloggers (assuming they're professionals) wouldn't be covered by that!

UPDATE: Thanks to reader Eyal Barnea for correcting an error in my original post; I had misread the statute and concluded that it required the blogger to be a professional, but of course it requires that or spending a lot of time.

A Dec. 12 article incorrectly said that Lani Guinier's nomination to head the Justice Department's civil rights division under President Bill Clinton was withdrawn because of a "nanny problem." There was no such problem, and the Clinton White House withdrew the nomination because of controversy over Guinier's legal writings.

This one is 1000% scientifically valid.

A reader writes:

The idea of the right to publish is only a prohibition against government interference. It does not give protection against non-government actions such as lawsuits. . . .

I often hear this argument, but it's mistaken. Lawsuits aren't "non-government actions." A lawsuit is decided by a government actor. If the plaintiff wins, he gets to enforce the award using the government's coercive power. And the law that is being applied is government-made law. That's why the Supreme Court is absolutely right to conclude that private lawsuits based on speech are subject to the First Amendment. Some such lawsuits may be permissible; libel law, for instance, still exists, though it has been cut back by the Supreme Court because of First Amendment concerns. But they are permissible only because the speech on which they're based falls within an exception to First Amendment protection (e.g., the "false statements of fact" exception, which allows lawsuits or even criminal punishments for deliberate lies).

This also makes sense functionally as well as formally. If lawsuits were immune from First Amendment scrutiny, then the legislature could effectively suppress a great deal of speech simply by authorizing private lawsuits. Want to suppress racist speech, anti-government speech, anti-war speech, etc.? Pass a law authorizing anyone who's offended by speech to sue.

Ah, some might ask, but what if a property owner sues protesters for trespassing on his property? Wouldn't the reasoning above make that lawsuit "state action," and subject to the Constitution?

Sure. The trespassing lawsuit is definitely state action (the legal idiom) or government action (the more precise term). But trespassing law doesn't focus on speech because of its content; in fact it doesn't focus on speech at all. The property owner might be suing the protesters because of their speech, but the law is indifferent to their speech or even to whether they were speaking. And this sort of content-neutral, speech-neutral law is constitutional under First Amendment law, even if it happens to be applied at times to speech. But legal rules that apply to speech because of what it says (libel law, intentional infliction of emotional distress law, the disclosure of private facts tort, and so on) are subject to serious First Amendment scrutiny, and often can't constitutionally be applied to speech, because of the First Amendment.

So, as the Supreme Court held in New York Times v. Sullivan (1964), "The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised." If a legal rule makes people legally liable for their speech, the First Amendment is implicated, whether or not the party that starts the litigation is the government.

A lawyer friend of mine, who's a pretty fair-minded guy and whose judgment I trust on these things, writes:

Judge Carter in the C.D. Cal. (Santa Ana) has staged a wonderful constitutional joke.

Outside his courtroom he has a Christmas tree and a menorah next to a table with a coffee set-up. The menorah and Christmas tree are very close. He also has strung some Christmas lights along the floor to set a little path into the courtroom. On the opposite side of the path are two reindeer, one of which is wearing sunglasses. The distance from the Christmas tree to the reindeer appears to have been carefully measured, perhaps to test the outer limits of the reindeer-proximity rule. There also is a Frosty the Snowman near the display, the tree, reindeer and snowman forming a roughly equilateral triangle. Overseeing it all is a hovering flying pig, perhaps a comment on the foolishness of most Establishment Clause jurisprudence.

Clearly a great deal of thought went into this. I am mightily impressed.

The Austin American-Statesman writes:

John Corvino was visiting Austin three months ago when he met a man at a Congress Avenue coffee shop and decided to take a walk with him on the nearby Capitol grounds.

They spent several minutes chatting and occasionally kissing. Then, according to a written complaint, they were interrupted by a state trooper who told them twice that "homosexual conduct is against the law in Texas."

Texas Department of Public Safety officials said Friday that they have placed the trooper, Michael Carlson, on probation for six months and issued a written reprimand. Carlson also has been ordered to undergo more training on Texas laws. . . .

Texas law does not prohibit gay people from kissing. . . .

I'm not sure that public kissing, regardless of the parties' sex (and whether or not on the first date), has ever been illegal in Texas. It would take a strikingly misinfored police officer to assume that it is illegal today -- either that, or an officer who thinks his job is to enforce his personal preference, rather than the law.

David Kravitz writes (go to his post for the links):

Predictably, Bernard Kerik's abrupt withdrawal as Bush's nominee for Director of Homeland Security, ostensibly for nanny-type problems (but see the New York Daily News in particular for Kerik's other "difficulties"), has led our friends in the mainstream media to recall that some Clinton nominees had to withdraw for similar reasons.

Amazingly, though, some of the reporting is completely wrong. I refer in particular to several stories (and there are dozens more out there - Google it yourself) stating that Lani Guinier withdrew as Clinton's nominee for head of the Justice Department's Civil Rights Division because she had failed to pay taxes for a domestic worker.

As anyone with even a few brain cells left should recall, however, Lani Guinier withdrew because some of her writings were wildly misrepresented, she was smeared as a "quota queen," and Clinton backed down in the face of right-wing pressure. (It was not Bubba's finest moment.) Maybe I'm wrong, but I don't remember anything about Guinier having "domestic worker" problems. If you can find a source from the relevant time period (1993) referring to any such problems, I'd like to know about it.

This is really scary. The Guinier business was extremely well-publicized at the time, and it was not that long ago. If reporters and editors working for CBS and MSNBC (and many others) can't even get the basic facts about it right, can we really expect them to report intelligently and accurately about social security, income tax reform, judicial nominations, and a host of other important but complex issues coming down the pike?

I express no views on whether Guinier's work was in fact misrepresented; but the rest of the item seems quite right to me. Unless there's something about the Guinier story that I had also missed — and if there is, please let me know so that I can correct the post — this seems like a nontrivial error by the media. They're not just wrong here, but they're wrong in a way that falsely accuses someone of violating the law. That doesn't speak well of their trustworthiness in other fields.

UPDATE: Just to make it clear, Kravitz and I of course know that Zoe Baird, Kimba Wood, and Stephen Breyer were torpedoed by similar objections, as eventually was Linda Chavez. (This happened to Breyer the first time he was talked about for a vacancy, which Clinton filled with Ruth Bader Ginsburg.) The first three were Kravitz's "some Clinton nominees had to withdraw for similar reasons." Our point is that the media seems to be confusing Guinier with them.

FURTHER UPDATE: I did a bit more looking through news stories that came out in 1993, when Clinton nominated Guinier and then withdrew support for her. (I had done some when first posting this, but I've done more since.) None mention any "nanny problems" for her, even though some mention the Baird/Wood/Breyer nanny problems and then describe Guinier as having lost support because of statements in her published works. Again, I may be mistaken -- if you have contrary evidence, please let me know. But it looks like this is indeed an error by a bunch of media outlets (Washington Post, AP, Knight Ridder, CBSNews.com, MSNBC.com, Houston Chronicle, Washington Times, and others).

My article draft (quite rough) is here.

Rick Hasen and David Kravitz suggest reasons why some Democrats might support Scalia for Chief Justice.

Just finished a draft of my Child Custody Speech Restrictions paper -- it's been very interesting, but time-consuming, which is why I haven't been blogging much recently. Hope to post some things that have been backed up in my queue, though their news hooks may have gotten a little stale.

There's a RealPlayer recording of a debate on this subject, between Richard Epstein and Eben Moglen, here, and a post here. The debate was sponsored by the Columbia Law School Federalist Society.

Rutgers-Camden Law School and the Constitution Center are organizing a very interesting sounding conference on this subject. It's inspired by University of Chicago Law Professor Geoffrey Stone's recently published book, Perilous Times: Free Speech in Wartime (Norton, 2004), and it will include many noted experts, including Federal Third Circuit Judge Michael Chertoff and First Amendment lawyer Floyd Abrams. Details are here; admission is free, though you must register.