My friend Rob Morris reports that Henry "Lighthorse Harry" Lee (Robert E. Lee's father), has been renamed:

[Lighthorse Harry] earned his nickname during the American War of Independence as commander of the Legion of Virginia. The nickname Lighthorse Harry has followed the man for over 200 years. Imagine dashing the dashing Lighthorse Harry, rallying his legionnaires as they complete the encirclement of Fort Watson in April, 1781. With a nickname like that, history remembers Lee as a man of action, forever in motion.

That is until spell-checking software anchored him on a rocky shore. It seems that "Lighthorse" isn't an English word spoken in Redmond, Washington (home of Microsoft Word) or Ottawa, Ontario (Home of Corel WordPerfect). Their spell checkers want to change it from "Lighthorse" to "Lighthouse," and they have.

Now various Web sites, including some at reputable locations -- the University of Houston Library, the Texas Archival Resources Online, and other places -- talk about Lighthouse Harry. As someone whose last name is changed by spell-checkers to Moloch, I empathize and protest.

has taken the view that "[t]he Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias." The document is dated Aug. 24, 2004, but it has apparently just been put on the Web site very recently. The opinion is long and detailed, and I suspect will be quite influential -- OLC opinions tend to be. I also hope it gets some media attention: Certainly this sort of reasoned opinion by the Justice Department office charged with opining on such questions ought to be pretty newsworthy.

Here's the closing paragraph:

For the foregoing reasons, we conclude that the Second Amendment secures an individual right to keep and to bear arms. Current case law leaves open and unsettled the question of whose right is secured by the Amendment. Although we do not address the scope of the right, our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views. The text of the Amendment's operative clause, setting out a "right of the people to keep and bear Arms," is clear and is reinforced by the Constitution's structure. The Amendment's prefatory clause, properly understood, is fully consistent with this interpretation. The broader history of the Anglo-American right of individuals to have and use arms, from England's Revolution of 1688-1689 to the ratification of the Second Amendment a hundred years later, leads to the same conclusion. Finally, the first hundred years of interpretations of the Amendment, and especially the commentaries and case law in the pre-Civil War period closest to the Amendment's ratification, confirm what the text and history of the Second Amendment require.

The second edition of my Academic Legal Writing textbook has just been published, and it now covers how to get onto law review — with, among other things, lots of tips on write-on competitions — as well as how to write the student articles that law review members (and others) write. Most first-year law students think about participating in law review write-on competitions; at UCLA, for instance, about 1/3 actually compete, and more seriously consider it. This means that your friends or relatives who just started law school would likely find the book to be a great present.

Of course, the book also continues to be helpful for second and third year law students, too, whether they're on law review, in a seminar, writing their mandatory upper-division paper, or working on an independent writing project. The book should be available from amazon; make sure you order the Third Edition (that's the link to which I just pointed).

For the Third Edition, the publisher is no longer sending me author's copies for signing and resale; but if you'd like me to send you a free personalized bookplate (basically just a label) to be pasted inside the book, just e-mail me at [email protected] and tell me (1) the name and address to which you want the bookplate sent, and (2) the inscription you'd like me to use.

And you can still order a personally signed version from me (I just got 25 copies from the publisher) — just send to [email protected] a paypal draft for $27.99 [UPDATE: price revised to equal the amazon cost, including shipping], together with (1) the name and address to which you want the book sent, and (2) the inscription you'd like me to use. Or, if you prefer snail-mail, just send a check and those two all-important pieces of information to:

Eugene Volokh
UCLA School of Law
405 Hilgard Ave.
Los Angeles, CA 90095

I thought I'd chime in with a few thoughts on Orin's questions below, which is whether conservatives, who tend to support state autonomy, are hypocritical for favoring tort reform.

1. Tort liability for commercial activity is a form of regulation of commerce. As economists have pointed out, tort liability is another way to regulate behavior. Congress can require that all fans have certain safety screens, and fine manufacturers who don't comply. (I mean the rotating fans that make breezes, not the basketball fans who want to get into fights.) Or Congress could empower the Consumer Product Safety Commission to enact regulations to this effect. Or states could do the same. Or state or federal courts could allow product liability lawsuits against fan manufacturers, which may lead to liability awards for fans that lack such screens. There are pluses and minuses for each approach. But all approaches are forms of regulation.

2. Conservatives as well as liberals believe Congress should have pretty broad powers. The debate isn't between 100% Congressional power and 0%; rather, it's more like between 100% and 95% (as a constitutional law matter) and maybe 60% and 30% (as a matter of what the policy ought to be). In particular, conservatives do believe that Congress should have and use the power to regulate interstate commerce — which includes the power to deregulate ("regulate" here meaning "make up rules," which may be more laissez faire than state rules). Many also believe that Congress should be able to keep states from regulating even intrastate commerce in ways that cause serious harmful effects in other states, though that is somewhat more controversial.

3. Product liability does have substantial interstate effects. The Ninth Circuit decision in 2003 holding Glock potentially liable for violating California law by its sale of products in Washington State is a great example. California law was applied in a way that would lead reasonably cautious distributors to have to change their behavior throughout the country, not just in California; California law was thus in effect regulating commerce in other states. (The federal court was purporting to apply California law, since in this case the court's jurisdiction stemmed only from the parties' being citizens of different states, not from the lawsuit's being based on federal law.) It thus makes sense for Congress to step in, in order to keep state law from having such extraterritorial effects.

The same is often true in other product liability cases. First, product distributors can often be held liable in state A based on sales in state B. Second, local juries may prefer to redistribute wealth from out-of-state corporations to in-state consumers, which also interferes with interstate commerce.

Now this argument doesn't always work. The case for federal regulation is weaker as to medical malpractice, for instance, since much medical care is provided intrastate. Likewise, some hard-core federalists would argue that Congress should only preempt product liability when the lawsuit is based on out-of-state sales (or possibly when the lawsuit is against an out-of-state distributor). But softer-core federalists might conclude that it's enough that product distribution is generally a national business, just like transportation and communications (which are primarily federally regulated) are national businesses, and that it therefore makes sense for the regulations of the entire sector to be basically federal rather than state.

4. Federalists don't care just about federalism. As I mentioned, even people who care about maintaining state autonomy do think that Congress should have some power, and should exercise some of the power that it has — they just take a narrower view of it than people who don't care as much about state autonomy. This means that, so long as Congress has the constitutional authority to enter a field, federalists care both about state autonomy and about other values that might lead them to favor federal action.

One of the values that conservative federalists tend to like, alongside state autonomy, is relative deregulation of economic transactions (not zero regulation, but generally less regulation). They might not be wild either about administrative regulation of product features or about jury regulation. Another value is the rule of law, in the sense of having relatively clear and predictable rules about what people ought to do. This might make them conclude that if any regulation is proper, it should indeed be clear rulemaking by the legislature or by administrative agencies, and not ad hoc application of vague "reasonableness" standards by juries.

So some conservatives might reasonably say: "We do prefer state autonomy over federal power. But when Congress has the constitutional power, as it does with regard to interstate commerce, and even as to commerce generally, given the current state of constitutional law, we may conclude that the values of deregulation and legal clarity should trump state autonomy."

Incidentally, principled people on all sides of the political debate sometimes have to make such judgments. Liberals may care both about liberty and equality, and so long as they think the Constitution allows certain restraints on liberty, they may favor such restraints (for instance, on freedom of association) in the name of equality. They may be morally mistaken in doing so; but they may well be quite true to their principles, even when they err in figuring out how to reconcile those principles.

So for all those reasons, I think there's ample justification for conservative calls to limit product liability, since this would generally involve Congress changing the regulatory scheme for interstate commerce to make it less restrictive and more predictable. There is less justification for conservative calls to limit medical malpractice liability, but there is still some, given that medical care does have important interstate dimensions. I agree — as one who does value state autonomy quite a bit — that it would be good if all these preemptive schemes were crafted to minimize the effect on purely intrastate commercial transactions. But the big picture project of restricting the regulation of interstate commerce imposed by the tort liability system strikes me as quite proper for federalist conservatives.

Andrew Sullivan writes:

DEAR PRUDENCE: Slate's often diverting advice columnist answers a gay correspondent who's offended when someone finds out he's gay and says: "What a waste." Here's Prudence's reply:

Prudie believes you are misinterpreting the remark. Rather than implying that the gay person has "no sort of life of their own," Prudie finds it to mean, "You are GORGEOUS." (And it's the straight person's loss that you bat for the other team.) It is meant both as a compliment and a lighthearted statement. As you may have divined, Prudie has made this comment, herself, and always to a big smile in response.

Well, almost. The key way to figure this out is to reverse roles. If it emerges in conversation that a man is married to a woman, would he be offended if a gay guy were to say, "What a waste"? I think he would. Or am I wrong?

Here's my take: If a straight man is offended by a gay guy's saying "What a waste," I suspect that it's because the straight man is a bit put off by the idea of the gay guy being attracted to him. Remember that "what a waste" here would be shorthand for "what a waste that you [a man] are having sex with women, rather than having sex with men." The straight man isn't being insulted as such — there's nothing pejorative about the statement. Rather, he's being asked to confront a mental image that he may find (rightly or wrongly) somewhat disgusting.

Are gay men likewise disgusted by the mental image created by "what a waste that you [a man] are having sex with men, rather than having sex with women"? Do they think "sex with women, yuck, I wish I wasn't led to think about that"? If so, then I can see why they'd be offended, though again it's a "disgusted" sort of offense rather than an "insulted" sort.

But if not — if, for instance, gay men are more used to (and thus less bothered by) the mental image of men having sex with women, because it's more pervasive in society, than straight men are to the mental image of men having sex with men — then there doesn't seem anything much offensive about it. The question might or might not have a different answer for lesbians.

At the same time, it's not clear to me that "what a waste" is likely to be particularly charming -- even if not offensive -- in either context. Compliments on one's sex appeal are pleasant in part because one likes the idea of being appealing to people like the complimenter. Even if a straight woman is happily married, she likes to know that men find her attractive; even if a straight man is happily married, he likes to know that women find him attractive. But I suspect that many gay men aren't as interested in knowing that women think them to be hot (though I might be mistaken); it's just kind of pointless, so don't expect the gay man to be especially thrilled by such a compliment.

On the other hand, here's something we can all agree on: If a woman says to a man "what a waste," after being told that the man is straight, then the man isn't going to be thrilled.

Tom Palmer has several posts on this (see here, here, and here). Thanks to Jacob Levy for the pointers.

Incidentally, I'm not opposed to helping foreign bad guys on occasion -- consider helping Stalin against Hitler, or helping dictators against Communists. (Sometimes this may have been mistaken, but often it was not; the South Koreans are, I suspect, much better off because we supported their leaders against the North Koreans, even though for decades South Korea was indeed ruled dictatorially.) But that you sometimes have to choose a lesser evil against a greater evil is no excuse for choosing the greater evil against the lesser. I am not an expert on Eastern Europe, but from my lay perspective, Yushchenko et al. are surely better than their rivals; and it's a shame that some Americans are backing those rivals.

I've often heard that line from gun control advocates, who are trying to pooh-pooh people's concerns that some seemingly modest gun controls are just the prelude to much broader gun bans. Well, here's what the AP reports reports:

San Francisco supervisors want voters to approve a sweeping handgun ban that would prohibit almost everyone except law enforcement officers, security guards and military members from possessing firearms [I assume they just mean handguns -EV] in the city.

The measure, which will appear on the municipal ballot next year, would bar residents from keeping guns in their homes or businesses . . . .

Under the language of the measure, the ban would not apply police officers, security guards, members of the military, and anyone else "actually employed and engaged in protecting and preserving property or life within the scope of his or her employment." . . .

So in Washington, D.C., handguns are generally banned, and people may not even keep rifles or shotguns loaded and ready for self-defense. In Chicago, handguns are generally banned. San Francisco is trying to do the same. And no-one is trying to take people's guns?

Of course, some might argue to pro-gun-rights people living in (say) Texas or Florida or Virginia, "no-one is trying to take your guns — only those of people in more pro-gun-control places, like San Francisco." That, though, presupposes that gun rights activists are only interested in their own rights. Why should anyone assume that?

I take it that abortion rights activists in California wouldn't be persuaded by anti-abortion activists' arguments that "Oh, don't worry, we won't ban abortions in California, since obviously we wouldn't have the votes; we're just trying to ban them in Texas." Presumably the abortion rights activists would say that they care about what they see as the fundamental rights of people all over the country. Likewise, I would think, with gun rights activists.

(It's possible that courts will conclude that the ordinance is preempted by state law, as they did with a similar San Francisco ordinance passed in 1982, and backed by then-Mayor Dianne Feinstein; but given recent developments in state law, including the upholding of a West Hollywood ban on sales of so-called Saturday Night Specials, it's not clear that the courts would indeed do so.)

UPDATE: The ordinance is even broader than it sounded like at first -- it would ban the sales of all firearms and ammunition, including shotguns and rifles, though it would only ban the possession of handguns. Of course, this wouldn't keep people from buying them out of town, but presumably its backers would like to see similar law enacted in other cities, too. Here are the operative provisions:

[2.] Within the limits of the City and County of San Francisco, the sale, distribution, transfer and manufacture of all firearms and ammunition shall be prohibited.

[3.] Within the limits of the City and County of San Francisco, no resident of the City and County of San Francisco shall possess any handgun unless required for professional purposes, as enumerated herein. [The law then exempts various government employees, armed forces members, and professional security guards doing their jobs.] . . .

In State v. Aloi, Connecticut Appellate Court, Dec. 14, 2004,

Officer Jay Salvatore approached and advised the defendant that [a witness] had complained that the defendant was trespassing and possibly had damaged [a] fire truck. Salvatore requested that the defendant produce identification. The defendant did not immediately hand over his identification. The defendant also stated that he did not need to produce identification, that he was on public property and that "this isn't Russia. I'm not showing you any . . . ."

The defendant was convicted, based on these actions, of interfering with a police officer, but the Appellate Court reversed. Refusing to identify oneself and saying "this isn't Russia. I'm not showing you any [identification]" was perfectly legal under Connecticut law. Though Connecticut might have enacted laws that require certain people to identify themselves (though not necessarily to show an identification document) when told to do so by the police -- see the Supreme Court Hiibel case from several months ago -- the court concluded that Connecticut law didn't require this, and that in any event the "this isn't Russia" line wasn't threatening and thus wasn't criminal obstruction. (The defendant's convictions for actually damaging the fire truck were upheld — as best I can tell, the defendant was indeed guilty of that.)

Or, in the words of Judge Kozinski, quoting a Russian,

There are places where, until recently, "everything which [was] not permitted [was] forbidden. . . . [W]hatever [was] permitted [was] mandatory. . . . Citizens were shackled in their actions by the universal passion for banning things." Yeltsin Addresses RSFSR Congress of People's Deputies, BBC Summary of World Broadcasts, Apr. 1, 1991, available in LEXIS, Nexis Library, OMNI file. Fortunately, the United States is not such a place, and we plan to keep it that way.

Here it is:

In a Dec. 10 brief and story about Bernard Kerik's withdrawal as homeland security secretary-designate, The Associated Press reported erroneously that Lani Guinier, who was President Clinton's choice to head the Justice Department's civil rights division in 1993, had not paid taxes for a domestic worker. A spokesman for her at Harvard Law School said there was no such problem, and the White House never indicated that there was. Clinton said he withdrew her nomination because of her legal writings on racial issues. The same incorrect reference to Guinier and unpaid taxes on a domestic worker was in a 1995 AP item about Clinton choices who had problems in the confirmation process.

Early this year, I blogged about a controversy related to The Vagina Monologues, in a post titled "Life Imitates The Onion." An excerpt:

David Kaufman points to this fantastic story:

They silently stood hand in hand with gray duct tape pasted across their lips and "Vagina Warriors" emblazoned on the back of their white shirts. The front of the shirts had different messages: "Warning: Hostile Vagina," "Not all vaginas are skinny, white + straight" and "My cunt is not represented here."

About 10 people gathered in front of Agate Hall on Friday to protest what they called a lack of representation of different kinds of women in "The Vagina Monologues" production, which ran Thursday through Saturday at the Agate Hall auditorium.

In flyers handed out to audience members at the show, University graduate Nicole Sangsuree Barrett wrote that while there was "diversity" in the show, it was minimal. Women of "a variety of skin colors, body sizes, abilities and gender expressions" were not adequately represented, she said.

"I would just like to call attention to the fact that this could have been a more diverse cast, but a safe and welcoming environment was not created for people that I consider to be 'underrepresented,'" Barrett said in the statement. . . .

[Barrett] added that the show's organizers didn't offer a safe space for people of different backgrounds.

"Know that what you are seeing tonight is not the result of an inclusive process," Barrett said in the statement. "Know that this space was not one where honest questions and concerns about race were tolerated." . . .

[Senior Melissa Ballard said] only one . . . woman of color remained in the show. "Plus size" and queer women were also not well-represented, she said.

[Senior Natalie Mays, the show's assistant director,] said she completely understands and supports the need for diversity.

"No way would I intentionally alienate anyone," she said. "It breaks my heart that different people feel alienated by this show."

Mays said about 85 people auditioned for the show and there wasn't a large pool of "visible" people of color to choose from. She said it is also not always possible to tell one's ethnicity or sexual orientation just by looking at the person, adding that she does not usually ask people what their sexual orientation is at an audition.

Mays, who is part Native American herself, said she mainly wanted strong women with passion and dedication when she made the casting decisions. . . .

Breaks my heart! Where's that safe and welcoming space? All cunts should be represented. And women of a variety of abilities, too (it took me a while to get this, but I think this is a euphemism for disabled women, rather than a call for women with different acting abilities, or, er, sexual skills). Priceless. If you're looking for more, check out this follow-up story in the Oregon Daily Emerald, "Tensions explode at 'Vagina' discussion." My favorite quote is in the closing paragraph: "'Nobody here is a bad person,' she said. 'Nobody here failed at the show. We failed as a community.'" It obviously takes a village to put on the Vagina Monologues.

Oh, and readers: Know that what you are seeing on this blog is not the result of an inclusive process.

I was wrong, wrong, wrong! It turns out that variety of abilities really did mean variety of abilities. Olly Ruff (Oregon Commentator Online) pointed to this article which revealed, among other things, that:

In addition to securing a more diverse cast, the selection committee will also be looking to include activists and community members who are involved with women's issues.

Pete said the committee will select people who are "not necessarily drama-oriented" in favor of "people who work (toward) 'The Vagina Monologues' mission of ending violence against women."

Women's Center spokeswoman Stefanie Loh said the de-emphasis on acting ability will provide a "down to earth" feel to the production as well as allow the producers to be more inclusive in their casting.

"The fact that they had auditions means that some people are automatically excluded," she said.

Not just some people — some vaginas! "Not all vaginas are skinny, white + straight," or, apparently, have acting ability.

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.