is now available on amazon.com, though they say it takes 1 to 2 weeks for delivery.

If you want personalized copies, follow the instructions here; I have only copy left right now (24 have been bought since I got the box Friday), but the publisher says that 30 more are on their way.

And remember, some people appreciate New Year's gifts as well as Christmas gifts. (I'm not making this up, that's indeed the way we always did it in my family.) And some people appreciate gifts on any day.

Seriously, one thing I mention in the chapter on getting on law review is that people should start preparing several weeks before the competition. So if the competition is in March (as it is at UCLA, for instance), it would be good for a student to have the book well before then.

A really cool site for First Amendment junkies -- thanks to my former student Matthew Liebman for the pointer. Here's a list of what they have:

. . .

The "Conscription" cartoon in Masses Publishing . . .

The two-sided circular in Schenck . . .

The speech in Debs . . .

The circulars in Abrams . . .

The Left Wing Manifesto in Gitlow . . .

An article used as evidence in Near . . .

Examples of the documents in Herndon [v. Lowry] . . .

Transcript of the phonograph record in Cantwell . . .

The handbills in Valentine . . .

The speech in Terminiello . . .

Accounts of the speech in Feiner . . .

The leaflet in Beauharnais . . .

The advertisement in New York Times Co. v. Sullivan . . .

Photographs of the protest in O'Brien . . .

The letter to the newspaper in Pickering . . .

Examples of gender-segregated want-ads in Pittsburgh Press . . .

Transcript of the monologue in FCC v. Pacifica . . .

Photographs of the display in Lynch v. Donnelly . . .

Page proofs of the student articles in Kuhlmeier . . .

The "ad parody—not to be taken seriously" in Hustler v. Falwell . . .

Pictures of the displays in Allegheny v. ACLU . . .

The newspaper articles in Cohen v. Cowles Media Co. . . .

The city council resolutions and ordinances in Lukumi . . .

The anonymous leaflets in McIntyre . . .

A picture of crosses in the square in Pinette . . .

The school's student-activity-fee policy in Rosenberger . . .

Correspondence and the newspaper article in Boy Scouts v. Dale . . .

Transcript of the intercepted telephone conversation in Bartnicki . . .

I much appreciated Orin's post criticizing the "Nearly Half in U.S. Say Restrict Muslims" reporting of a recent survey. As Orin pointed out, here's what the survey actually measured, quoting this report:

1) Muslim civic and volunteer organizations should be infiltrated by undercover law enforcement agents to keep watch on their activities and fundraising.

2) U.S. government agencies should profile citizens as potential threats based on being Muslim or having Middle Eastern heritage.

3) Mosques should be closely monitored and surveilled by U.S. law enforcement agencies.

4) All Muslim Americans should be required to register their whereabouts with the federal government.

44% of respondents said yes to at least one of these questions.

To Orin's criticisms, let me add this one: Options 1 through 3 say nothing about under what conditions these procedures are to happen. People can have lots of views on them. Consider, for instance, option 1. Some people might say that all Muslim organizations should be infiltrated. Others might say that most should be. Others might say that the government should infiltrate those that it has some reason to believe are being used as recruiting centers for jihadism (that's my view). Still others might say that the government should never infiltrate any religious groups.

But the question lets people choose either "yes" or "no." So the count of those who would "restrict[] . . . civil liberties of Muslim Americans" would include those who would infiltrate all Muslim organizations, as well as those who would simply reject the extreme opposite position that any religious or political organization must be immune from surveillance. (Plus, of course, it's a judgment call whether one's "civil liberties" include immunity from government infiltration of groups to which one belongs -- there are arguments on both sides, but the Supreme Court has generally held that such infiltration doesn't violate either the First Amendment or the Fourth Amendment.)

The hypothetical proposal in "All Muslim Americans should be required to register their whereabouts with the federal government" would be pretty clearly a restriction on civil liberties; I'd reject it myself, and I share Orin's regret that it polled 29%. But it's also the only option that specifies "all," and that would clearly be unconstitutional.

Reader Kieran Jadiker-Smith writes:

I am a gay man, and, on a few occasions, I've gotten the "what a waste" remark from straight women. I haven't found this offensive; generally it's said in a playful, joking manner, and is not meant all that seriously. I suppose if someone said it with wide-eyed seriousness, I would be a bit annoyed, but I've never encountered it in that context.

For the record, I do find the idea of my having sex with women quite disgusting. But somehow, when someone makes a joke like this, I don't feel compelled to conjure up some graphic and explicit image of heterosexual sex. I take it simply as someone saying, in a humorous way, that she finds me attractive.

It's possible to rationalize indignance at any kidding involving issues of identity, but I don't think it helps in a society where we increasingly expect people who are different from one another to get along and even be friendly with one another. I should also mention, at this point, that I am 20 years old and grew up in two highly diverse, cosmopolitan urban areas (Vancouver, BC and San Francisco) and my friends have always been a mix of races, religions, backgrounds, and, starting in high school, sexual orientations. In general — even in oh-so-PC San Francisco — I've found that people prefer being able to joke about these issues a little bit rather than walk on eggshells, afraid to say anything about them lest they give offense. I came out of the closet when I was 15, and I think the ability to joke about it — up to a point, anyway — helped ease tensions as friends and acquaintances (some of whom had never had a gay friend before!) adjusted to the idea.

This whole discussion — perhaps because it's that time of year — reminds me of an item you ran some time ago about whether Jewish people might take offense at being wished a merry Christmas. I, too, am Jewish. But, like you, I've chosen — sensibly, I think — to interpret "Merry Christmas" as something other than an act of hostility or a subtle suggestion that I should convert to Christianity. I very much doubt than many people — Christian or otherwise — intend it as such. I simply accept it as I think it's offered — as a wish for a happy holiday season, even if I'm not celebrating the holiday to which they specifically refer.

So, too, do I accept "what a waste" as it's intended — a lighthearted, joking compliment. I know this world is full of people who come pre-offended, but I don't think they — or people who cater to them — are really advancing the causes of respect, friendship, comity, civility, or tolerance.

For all the same reasons, I don't see a reason in the world straight men shouldn't adopt the same attitude if they hear the same thing from a gay man. The interpretation of context shouldn't be impaired by one's sexual orientation.

Well put, and I wish more people had this attitude. At the same time, since the purpose of "what a waste" seems to be a compliment, its users should realize that at least with some listeners — though not Mr. Jadiker-Smith — it may not be a very effective compliment.

We've been using Chris Lansdown's PowerBlogs service for several months now, and I've been very pleased -- pleased enough that I wanted to pitch it to all of you. The interface has lots of nifty features: tools to help create tables, bulleted lists, and numbered lists, a way to link related posts together, support for hidden text, easy blogroll maintenance, and a bunch of other things. (Of course, it also has all the normal stuff, such as support for comments, delivery of posts by e-mail, RSS feeds, multiple bloggers, customized layout, and more.) The system has been extremely reliable. And the technical support has been excellent. You can find more about the features here, and about the pricing here -- the cost is pretty reasonable, starting at only about $5/month, though it naturally goes up for higher-bandwidth or higher-space blogs. I highly recommend it.

My student Patricia Stringel -- who hastens to stress that her interest in this is purely academic -- passes along an interesting bit of trivia: In 19 states, including California, New York, and most of New England (so no Beverly Hillbillies jokes, please), first cousins are apparently perfectly free to marry.

While parent-child, sibling-sibling, and uncle/aunt-niece/nephew marriage and sex seem to be pretty broadly condemned in the U.S., there's much more disagreement on cousin-cousin relationships. Actually, it makes a good deal of sense, but it surprised me: I somehow assumed that cousin-cousin relationships were more broadly banned. (Note: The data is from a site dedicated to legitimizing cousin love, and I haven't checked it myself. I have no reason, however, to doubt its accuracy, since the site purports to provide helpful information for cousins and presumably wouldn't try to deceive them. The site also includes statutory language, which is another good sign, though it says it's only current as of 1999.)

Oh, and the most amusing part is the name of the domain -- "cuddleinternational.com," with the "cuddle" standing for "Cousins United to Defeat Discriminating Laws through Education."

I'm pleased to report that a couple of weeks ago, the California Supreme Court held that people are free to tell the truth about others' past crimes. Thirty years earlier, the court had held, in Briscoe v. Reader's Digest, that when a crime was long enough in the past, it would be an "invasion of privacy" for others to publish information about the supposedly "reformed" criminal, and the criminal could sue for lots of money over that. (California courts had also held that much earlier, in the 1930s, and some other state courts had followed suit.) Now the California Supreme Court has overruled Briscoe, and concluded that recent U.S. Supreme Court decisions protect accurate accounts of public records — such as people's past criminal convictions — despite the passage of time.

To explain why I think this is an excellent decision — and why I'm strongly opposed to some "privacy" and "paid his debt to society" rhetoric in such cases — I'm taking the liberty to exhume an old item of my own, from my 2000 article on Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, 52 Stanford L. Rev. 1049 (2000):

[In Briscoe, Reader's Digest was held liable for revealing that Briscoe had eleven years earlier been convicted of armed robbery (a robbery that involved his fighting "a gun battle with the local police"). The court acknowledged that the speech, while not related to any particular political controversy, was newsworthy; the public is properly concerned with crime, how it happens, how it's fought, and how it can be avoided. Moreover, revealing the identity of someone "currently charged with the commission of a crime" is itself newsworthy, because "it may legitimately put others on notice that the named individual is suspected of having committed a crime," thus presumably warning them that they may want to be cautious in their dealings with him.

But revealing Briscoe's identity eleven years after his crime, the court said, served no "public purpose" and was not "of legitimate public interest"; there was no "reason whatsoever" for it. The plaintiff was "rehabilitated" and had "paid his debt to society.") "[W]e, as right-thinking members of society, should permit him to continue in the path of rectitude rather than throw him back into a life of shame or crime" by revealing his past. "Ideally, [Briscoe's] neighbors should recognize his present worth and forget his past life of shame. But men are not so divine as to forgive the past trespasses of others, and plaintiff therefore endeavored to reveal as little as possible of his past life." And to assist Briscoe in what the court apparently thought was a worthy effort at concealment, the law may bar people from saying things that would interfere with Briscoe's plans.

Judges are of course entitled to have their own views about which things "right-thinking members of society" should "recognize" and which they should forget; but it seems to me that under the First Amendment members of society have a constitutional right to think things through in their own ways. And some people do take a view that differs from that of the Briscoe judges: While criminals can change their character, this view asserts, they often don't. Someone who was willing to fight a gun battle with the police eleven years ago may be more willing than the average person to do something bad today, even if he has led a blameless life since then (something that no court can assure us of, since it may be that he has continued acting violently on occasion, but just hasn't yet been caught).

Under this ideology, it's perfectly proper to keep this possibility in mind in one's dealings with the supposedly "reformed" felon. While the government may want to give him a second chance by releasing him from prison, restoring his right to vote and possess firearms, and even erasing its publicly accessible records related to the conviction, his friends, acquaintances, and business associates are entitled to adopt a different attitude. Most presumably wouldn't treat him as a total pariah, but they might use extra caution in dealing with him, especially when it comes to trusting their business welfare or even their physical safety (or that of their children) to his care. And, as Richard Epstein has pointed out, they might use extra caution in dealing with him precisely because he has for the last eleven years hidden this history and denied them the chance to judge him for themselves based on the whole truth about his past. Those who think such concealment is wrong will see it as direct evidence of present bad character (since the concealment was continuing) and not just of past bad character. . . .

[W]hich viewpoint about our neighbors' past crimes is "right-thinking" and which is "wrong-thinking" is the subject of a longstanding moral debate. Surely it is not up to the government to conclude that the latter view is so wrong, that Briscoe's conviction was so "[il]legitimate" a subject for consideration, that the government can suppress speech that undermines its highly controversial policy of forgive-and-forget. I can certainly see why all of us might want to suppress "information about [our] remote and forgotten past[s]" in order "to change . . . others' definitions of [ourselves]." But in a free speech regime, others' definitions of me should primarily be molded by their own judgments, rather than by my using legal coercion to keep them in the dark.

So the new California Supreme Court's decision (Gates v. Discovery Communications, Inc.) is a victory for free speech. And to the extent that it's a defeat for "privacy," it's a defeat for a form of privacy that the law ought not recognize — a putative right to stop people from telling the truth about what you've done.

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.