AltaVista, I recall, let you search for a word or phrase near another word or phrase -- but now that feature is gone. Can anyone recommend some search engines that have this useful feature, and that don't have huge countervailing handicaps?

If you have a specific (and verified) suggestion, please respond in the comments to this post. Thanks!

AND THE AGE OF CONSENT: [UPDATE: Since posting this, I have concluded that Justice Ginsburg was likely the victim of a drafting error, and the report's critics, including me, themselves erred in not seeing the error. More here.]

Several days ago, I ran across an allegation — one which has been repeated in quite a few places — that a 1977 U.S. Commission on Civil Rights report, co-drafted by then-Professor Ruth Bader Ginsburg, suggested that the age of consent be lowered to 12. That struck me as a likely myth or an out-of-context quote, so I decided to look into it.

To my surprise, the allegation seems largely accurate, though in the limited context of the federal territorial and maritime jurisdiction. (The report was referring only to federal law, and most sex crimes are covered by state law rather than federal law.) The report was Sex Bias in the U.S. Code, and it was prepared for the Commission by former ACLU lawyer Brenda Feigen-Fasteau, then-professor Ruth Bader Ginsburg, and 15 Columbia Law School students working under their supervision. The reporters went through federal statutes, identified various sex-based classifications and terms, and suggested ways to eliminate them. In the process, here's what the report said on p. 95 about the relevant statue, 18 U.S.C. § 2032:

Under 18 U.S.C. §§1153 and 2032, it is a crime for a person to have carnal knowledge of a female not his wife who has not reached 16 years of age. "Rape" is defined [as limited to female victims]. . . . The "statutory rape" offense is defined in these sections in much the same way: the victim must be a female and the offender a male . . . .

These provisions clearly fail to comply with the equal rights principle. They fail to recognize that women of all ages are not the only targets of sexual assault; men and boys can also be the victims of rape. In the case of statutory rape, the immaturity and vul[n]erability of young people of both sexes could be protected through appropriately drawn, sex-neutral proscriptions. The Model Penal Code and S. 1400 §1633 require a substantial age differental between the offender and victim, thus declaring criminal only those situations in which overbearing or coercion may play a part.

So far, not a proposal to generally lower the age of consent — it's a call for sex-neutral statutes, and for making the statutory rape rules turn on the difference in age between the parties. One can argue against this on various grounds, and it's not clear why the age differential vs. clear cutoff issue is relevant to the "Sex Bias in the U.S. Code" issue. Moreover, S. 1400 §1633 provided (at least in the version that I could find), that "sexual abuse of a minor" (essentially statutory rape) be limited to victims who are under 16, and who are "at least five years younger than" the defendant. This could be criticized, since it would allow 17-year-olds to have sex with 12-year-olds, which many people would treat as child molestation and not just young love. But at least it doesn't make 12-year-olds fair game for adults.

But here's the suggestion on p. 102:

18 U.S.C. §2032 — Eliminate the phrase "carnal knowledge of any female, not his wife who has not attained the age of sixteen years" and substitute a Federal, sex-neutral definition of the offense patterned after S. 1400 §1633: A person is guilty of an offense if he engages in a sexual act with another person, not his spouse, and (1) compels the other person to participate: (A) by force or (B) by threatening or placing the other person in fear that any person will imminently be subjected to death, serious bodily injury, or kidnapping; (2) has substantially impaired the other person's power to appraise or control the conduct by administering or employing a drug or intoxicant without the knowledge or against the will of such other person, or by other means; or (3) the other person is, in fact, less than 12 years old.

Under this proposal, it seems to me that sex with 12-year-olds and older would be legalized in the federal territorial and maritime jurisdiction, regardless of the age of the other party. This wouldn't be a "Romeo-and-Juliet" law aimed at preventing prosecution of young lovers — it would equally be a dirty-old-man-and-Juliet law. And while there are plausible debates about what the age of consent should be, it seems to me that simply lowering it to 12 would be quite a striking and unjustified change.

Now this all happened nearly 30 years ago; but I'm still curious about what was happening here. Am I misreading the proposal? Am I missing some important statutory context, such as other federal statutes that would have banned sex by adults with 12-year-olds even when this statute had been relaxed to allow it?

If I'm not mistaken or reading this out of context, then were many in the late 1970s feminist movement really in favor of lowering the age of consent to 12? Did Justice Ginsburg hold this view? Or was this something that was added by an overzealous student and not caught by her (of course she had the responsibility of checking everything produced by the people she was supervising or even by her coauthor, but mistakes happen)? Might it even have been an inadvertent drafting error? (As to 18 U.S.C. §1153 — which applied to Indian country — the other section mentioned alongside §2032 on p. 95, the report on p. 103 simply suggests that it be changed to the S. 1400, §1633 version.)

In any event, when I investigate improbable-sounding accusations and find them to be bunk, I like to post about that; so it seems to me that when they prove to be true, it's worth noting them. Again, I'm not sure what this says about Justice Ginsburg's past views, or for that matter her present views; but I'd love to hear any perspective that readers who are familiar with the late 1970s debate might be able to provide (preferably with details and citations).

A New York Times article on how some Democrats are suggesting that the party de-emphasize abortion in its political message contains this quote:

And Senator Dianne Feinstein, Democrat of California, said Republicans had "been successful at painting the view of the pro-choice movement as abortion on demand — and nothing can be farther from the truth."

Really? To the best of my knowledge, the leading players in the pro-choice movement do indeed favor abortion on demand, or something very close to it. According to the Random House Unabridged Dictionary, "abortion-on-demand" means "the right of a woman to have an abortion during the first six months of a pregnancy." As best I can tell, the views of leading pro-choice organizations, such as NARAL Pro-Choice America, are quite close to that.

The groups may say "before viability" rather than "during the first six months," and I suppose this might, depending on the state of a particular fetus and the progress of medical technology, be something of a difference — but not a very great one, given how close viability and six months tend to be (plus I take it the "six months" dividing line was chosen partly because it tracked viability during the time when the definition was being developed, so it was at least intended to reflect the viable/nonviable distinction). I suspect, incidentally, that most pro-choice advocates would insist that even post-viability abortions be legal when needed to protect the woman's life, physical health, or psychological health, with the latter category seeming like a pretty broad escape hatch. Also, while I'm not positive whether most leading pro-choice groups would allow any restrictions at all on minors' access to abortion, I'm pretty sure they oppose parental consent or even parental notificaiton requirements. So their position seems to be either abortion-on-demand or very close to it.

Now one may well argue that abortion on demand, or abortion on demand with these two narrow exceptions, is the morally, constitutionally, or pragmatically correct position. But it seems to me a mistake to deny that the pro-choice movement's view, or at least the view of many leading groups in the movement, is pretty close to that position — and even more of a mistake to fault people for being supposedly untruthful when they characterize the pro-choice movement's position that way.

A reader writes, apropos my recent post on parody and fair use,

Dear Mr. Copyright Expert,

So Ghettopoly loses while "The Wind Done Gone" prevails.

Is there a principle at work here other than measuring your revulsion and working backwards to get the desired result?

I can see why people are sometimes cynical about judges' decisionmaking, but it's good to check the facts to see whether they bear out the cynicism. And in fact, the leading modern parody cases don't seem to support the cynical view. In Campbell v. Acuff-Rose (1994), the leading Supreme Court case on the subject, the Justices basically accepted a fair use defense by the rap group 2 Live Crew -- not a very appealling defendant, that created a pretty vulgar parody of Roy Orbison's "Pretty Woman." (Look here for the lyrics, especially Verse 4 and the bridge preceding it.) On the other hand, in the most prominent recent case rejecting the fair use defense, Dr. Seuss Enterprises v. Penguin Books (9th Cir. 1997), involved a comparatively inoffensive Seuss-styled account of the O.J. trial, called "The Cat NOT in the Hat!" Hard to see much "revulsion" at the copyrighted work in the court's opinion there.

What is the principle, then? Here's the key argument from Campbell, which the Dr. Seuss court cited (and the bottom line of which I briefly summarized in my initial post, though without the supporting argument):

For the purposes of copyright law, . . . the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. . . . If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish) . . . .

Parody [which comments on the original] needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire [which doesn't comment on the original] can stand on its own two feet and so requires justification for the very act of borrowing. . . .

Now as it happens this "parody/satire" distinction can certainly be criticized (though it can also be defended). First, many works, especially humorous ones, are ambiguous; they don't articulate the point of their commentary in so many words, but leave it to the audience to figure things out, and different members of the audience can perceive things differently. Some people might well see any poem that uses Seussian style to discuss accused murderers as poking fun at Seussian conventions of childish innocence. How is a judge or jury to figure that out, especially if the work was aimed at people whose sensibilities and senses of humor are quite different from the judge's or the jurors' sensibilities?

Second, because of this, authors might be deterred from writing material that does implicitly comment on the original, for fear that this will lead to an expensive lawsuit. Third, it does indeed open the door to judges and juries acting based on their own like or dislike for the defendant's work -- vague rules do indeed risk such viewpoint discrimination. And indeed in some pre-Campbell cases, it did seem that some courts improperly counted a work's vulgarity or sexual theme against it.

But to my knowledge there's no reason to think that modern courts are in fact applying the test based on "revulsion" towards the defendant's work. There's much to criticize in the parody/satire distinction, but no reason to just assume the most cynical explanation of how it's been applied.

Several readers pointed out to me that Allen Ginsberg had much to say about Moloch — which, to remind people, is what the MS Word spell checker changes Sasha's, Benjamin's, and my last name to. This makes me realize that Allen Ginsberg must have actually been writing about us, but his spell-checker screwed things up. Wow! In any case, here are his views of our clan, from Howl:

Moloch! Solitude! Filth! Ugliness! Ashcans and unob-
   tainable dollars! Children screaming under the
   stairways! Boys sobbing in armies! Old men
   weeping in the parks!
Moloch! Moloch! Nightmare of Moloch! Moloch the
   loveless! Mental Moloch! Moloch the heavy
   judger of men!
Moloch the incomprehensible prison! Moloch the
   crossbone soulless jailhouse and Congress of
   sorrows! Moloch whose buildings are judgment!
   Moloch the vast stone of war! Moloch the stun-
   ned governments!
Moloch whose mind is pure machinery! Moloch whose
   blood is running money! Moloch whose fingers
   are ten armies! Moloch whose breast is a canni-
   bal dynamo! Moloch whose ear is a smoking
   tomb!
Moloch whose eyes are a thousand blind windows!
   Moloch whose skyscrapers stand in the long
   streets like endless Jehovahs! Moloch whose fac-
   tories dream and croak in the fog! Moloch whose
   smokestacks and antennae crown the cities!
Moloch whose love is endless oil and stone! Moloch
   whose soul is electricity and banks! Moloch
   whose poverty is the specter of genius! Moloch
   whose fate is a cloud of sexless hydrogen!
   Moloch whose name is the Mind!
Moloch in whom I sit lonely! Moloch in whom I dream
   Angels! Crazy in Moloch! Cocksucker in
   Moloch! Lacklove and manless in Moloch!
Moloch who entered my soul early! Moloch in whom
   I am a consciousness without a body! Moloch
   who frightened me out of my natural ecstasy!
   Moloch whom I abandon! Wake up in Moloch!
   Light streaming out of the sky!
Moloch! Moloch! Robot apartments! invisible suburbs!
   skeleton treasuries! blind capitals! demonic
   industries! spectral nations! invincible mad
   houses! granite cocks! monstrous bombs!
They broke their backs lifting Moloch to Heaven! Pave-
   ments, trees, radios, tons! lifting the city to
   Heaven which exists and is everywhere about
   us!

I should be on MSNBC's Abrams Report today, debating about the Second Amendment. I'm not sure whether it will be live or taped, but I'll be doing the taping at 3:15 pm Pacific.

In an earlier post, I complained that Microsoft Word's spell-checker suggested that "Volokh" be changed to "Moloch." I wasn't wild about the connection to a spiny-scaled lizard ("Moloch horridus") and especially not to a god to whom the Phoenicians and Canaanites supposedly sacrificed children.

But Seth Goldman points out the deep truth underlying Word's suggestion! A second definition of "Moloch" is:

Something possessing the power to exact severe sacrifice.

Around exam time, my students may well find this to be highly apt.

Stephen Bainbridge. Stephen asks me whether he can get away with posting fan fiction that crosses Elric of Melniboné (created by Michael Moorcock) with Anita Blake (of Laurell Hamilton's Anita Blake, Vampire Hunter series).

I'd counsel against it. The fan fiction would use enough of the Moorcock and Hamilton material -- enough character attributes and allusions -- to constitute "copying" for copyright purposes (even if the only things that they literally copy are the names).

To avoid liability, Stephen would have to argue fair use. But while parody that pokes fun at the original, or otherwise comments on it, is often a fair use (see the 2 Live Crew case, Campbell v. Acuff-Rose), parody that simply uses the original to poke fun at something else is generally not a fair use. Thus, for instance, the Ninth Circuit held that an item about the O.J. trial that borrowed from Dr. Seuss infringed the Seuss copyright, because it commented on O.J. but not on Dr. Seuss. And while one can often argue that any use of someone else's work (especially a humorous use of a serious work) in some way comments on the original, the Ninth Circuit case shows that courts are often skeptical of such arguments. It sounds like Stephen may be trying to mock Hamilton's work, but unless the submitted item comments (in a way that the court will recognize) on both Hamilton and Moorcock, then he's in trouble.

Finally, note that this analysis relies on the fact that Stephen's blog has advertising, and thus would be treated as commercial, which is a big strike against a fair use. Parody and commentary that critique the original may be fair use even if they're commercial; and other uses may be fair use if they're noncommercial. But if a court rejects the parody/commentary argument and the use is commercial, then the fair use claim becomes quite weak.

All this is just a general answer. It's hard to tell for sure if one hasn't seen the actual work, and with fair use it's hard to tell for sure even after one has seen the actual work. Still, I'd warn my colleague off his plan -- at least unless he insists that the submitted fiction pretty clearly mock both Moorcock and Hamilton.

Yes, you might think that's an oxymoron, but it really is pretty amusing. See here for an excerpt and a pointer to the PDF file.

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.