According to the Washington Post,

A Swedish appeals court on Friday overturned the conviction of a Pentecostal pastor found guilty of violating the country's strict hate-speech law with a sermon that labeled homosexuality "a deep cancerous tumor in the entire society" and equated it with pedophilia.

The appeals court ruled that Sweden's law, which was enacted after World War II to protect Jews and other minorities from neo-Nazi propaganda and was only recently extended to gays, was never intended to stifle open discussion of homosexuality or restrict a pastor's right to preach. . . .

Thanks to How Apealing for the pointer.

UPDATE: Just to make clear, this is good news but not great news; great news would be if these sorts of "hate speech" laws were repealed altogether. A summary of the decision by the Swedish-speaking blogger Stefan Geens suggests that the decision would provide a good deal of protection for discussion about homosexuality, including denunciation of homosexuality -- but not complete protection, and vaguely defined incomplete protection at that. Still, things look better for free speech in Sweden than they did before this decision. (Thanks to reader Dennis Josefsson for the pointer to Stefan Geens' site.)

by Gerard van der Leun (American Digest), based on one of my favorite poems, Kipling's Law of the Jungle:

NOW this is the Law of the Blogger - as old and as true as the sky; And the blogger that keeps it may prosper, but the blogger that breaks it must die.

As the visits that pump up the hit count, the Law runneth forward and back -- For the strength of the Blogs is the Blogger that never cuts anyone slack.

Blog daily from news-tip and hat-tip; blog long, but blog not too deep; And remember the Pundit's for linking, and forget not that he has to sleep.

The new blog may free flame the Jordan, but, Cub, when thy archives have grown, Remember the Big Blogs are hunters -- go forth and get scoops of thine own. . . .

For the rest, go here. Note that "URL" is indeed sometimes pronounced "earl," as it needs to be for two of the stanzas to work.

The Corner (National Review Online) reports, pointing to an AP story that says:

CNN chief news executive Eason Jordan quit Friday amidst a furor over remarks he made in Switzerland last month about journalists killed by the U.S. military in Iraq.

Jordan said he was quitting to avoid CNN being "unfairly tarnished" by the controversy. . . .

If you haven't been following the story, go to InstaPundit, search for Eason, and look at each of the post — Glenn Reynolds has been one of the people who has helped keep the story alive.

This looks like a classic example of the power of blogging: Though many of Jordan's critics have been politicians and journalists, as best I can tell the mainstream media initially paid little attention to the story. In an earlier era, it might have died from lack of attention, if it weren't for the bloggers' talking about the story, and making it hard for people to ignore.

Michigan's recently enacted anti-same-sex-marriage amendment reads:

To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

According to the Detroit News (Oct. 27, 2004), the amendment's chief supporters said it was just about marriage, not about domestic partner benefits and the like:

"Same-sex marriage is illegal (in Michigan) and will remain against the law after the election," said [Dana House, political direct for the anti-proposition forces]. "However, there are some folk who seem to want to distract the voters by talking about same-sex marriage so that they can take away domestic partner benefits and actually change the definition of marriage. Our job is to alert the voters to that risk. It will have the same affect on heterosexual couples." . . .

Citizens for the Protection of Marriage, the group that ram-rodded the petition drive to get the issue on the ballot, said it is not focused on benefits or discrimination. Members don't want same-sex marriages validated here like judges and politicians have done in Massachusetts and California.

"This is about defining marriage of one man and one woman," said Kristina Hemphill, of Southfield, a communications director for Citizens for the Protection of Marriage. As for people losing benefits, "nothing that's on the books is going to change. We continue to confuse this issue by bringing in speculation."

However, now the amendment is in fact being used to challenge domestic partner benefits:

As opponents of Proposal 2 predicted, the constitutional amendment approved by Michigan voters last November to define marriage is being used to challenge same-sex benefits provided to partners of gay public employees. . . .

The Ann Arbor-based Thomas More Law Center and 17 taxpayers are asking the Michigan Court of Appeals to stop the local school district from providing medical benefits to gay couples. In court papers, they cite the November constitutional amendment known as Proposal 2, which says the union between a man and a woman "shall be the only agreement recognized as a marriage or similar union for any purpose." The lawsuit was filed in 2003, before Proposal 2 passed, but the Thomas More Law Center wants the constitutional amendment considered in its appeal. . . .

Now it may well be that the More Center will lose, and the amendment will be interpreted the way Ms. Hemphill predicted. And it may well be that the agenda of the More Center is indeed broader than that of Citizens for the Protection of Marriage. Nonetheless, the language of Amendment 2 is potentially broad enough that it may well have the effect the More Center urges, and that Citizens for the Protection of Marriage pooh-poohed. So just a reminder that voters and other observers need to look at the text of the provision, and not be lulled by the disclaimers by the provision's backers.

For an example of a similar phenomenon, but from the opposite directions, see my "Phyllis Schlafly Said It Would Be Like This" post.

Thanks to my fellow lawprof Michael Froomkin for the pointer to this, and to Don Herzog (Left2Right) for the post to which Michael pointed me, and which this post in some measure echoes.

Reason's Hit & Run posts Eric Alterman's response to Cathy Young, regarding her criticisms of his "the suffering of . . . bigots" column, and Cathy Young's rejoinder. I find Cathy Young's statements much more persuasive. As she points out:

After all, the ceremony that the British Muslim Council boycotted was not meant to honor (say) the memory of fallen Israeli soldiers, or even of the Israeli victims of Palestinian terrorism; it was commemorating the victims of the Holocaust. It is those victims whom Alterman says Muslims have the moral right to view the way gays would view dead "gay-bashing bigots" (how else does one interpret his analogy?) -- simply because those victims were Jews, just like the Israelis and their supporters.

To its credit, Slate today published, in its Corrections e-column, the following:

A "Bushism of the Day" item posted on Feb, 10 reported that President Bush said on Sept. 23, 2004, "Listen, the other day I was asked about the National Intelligence Estimate, which is a National Intelligence Estimate." Though this is the version reported in several transcripts, an audiotape of the speech makes clear that Bush's more coherent actual words were, "Listen, the other day I was asked about the NIE, which is a National Intelligence Estimate."

It's to Slate's credit that it promptly published the correction. Yet I wonder: Given the way Slate is organized — and the same goes for some other online journals — wouldn't it be better to post a correction in the same e-column (which is to say under the rubric on the front screen) as the error appeared?

The front screen naturally doesn't indicate exactly what the corrections are. I suspect that many readers don't normally read the Corrections section. So as a result many readers who do habitually read the Bushisms column, and who read yesterday's column, will never learn that what they were told yesterday wasn't actually so.

Am I mistaken? I realize that newspaper tradition is to segregate corrections in a special corrections section. I'm not sure that's right even for print newspapers, but does it really make sense online? Or is it the case that lots of people do read the Corrections section, and that the best way to reach Bushism readers — again, to un-mislead them — is through an entry in Corrections, rather than a new entry in Bushisms?

I live in what one might call Greater Hollywood — an area that overlaps only slightly with the actual neighborhood called Hollywood, but that in fact houses many Hollywoodchiks. Driving to school this morning, I saw this billboard on Sunset, right near the West Hollywood / Beverly Hills border:

Apparently the plan is also to have such a billboard outside the Academy Awards venue. I know nothing about the group that's putting these out, and I can't say that the billboards constitute High-Minded Productive Political Discourse. But I can't deny being amused . . . .

A friend of mine is planning to take the LSAT, and I'd like to get her a book that can help her prepare for the Logical Reasoning section. That's the only section I'm interested in right now. Can anyone recommend a book that's worth trying on this, or tell me to stay away from certain books?

Other readers, I'm sure, would also find this helpful, so I've enabled comments; please post your recommendations there. Thanks!

Some posts on a lawprofs' discussion list led me get a copy of Behrens, Uggen & Manza, "Ballot Manipulation and the 'Menace of Negro Domination': Racial Threat and Felon Disenfranchisement in the United States, 1850-2002," which claims that many laws barring felons and ex-felons from voting were motivated by a desire to diminish the number of black voters.

It may well be the case that this was indeed the motivation behind some such laws; I'm told there's pretty solid evidence for that. Nonetheless, I was wondering about some particular items that the articles cited, and I wonder whether there are any experts on antebellum election laws in the South who might help me with this.

The article lists, for each state, the year in which the state's first felon disenfranchisement law was supposedly passed. Many such laws — for instance, in Delaware, Kentucky, Louisiana, Maryland, and Virginia (for the rest of this post I focus only on the slave states, chiefly because I lacked the time to check for all states) — were first enacted before the Civil War. Since at the time blacks could be and were often disenfranchised simply based on their race, presumably the disenfranchisement of felons didn't have to do with race.

According to the article, many the laws were indeed enacted in the South right after the Civil War, so that's consistent with the theory that they were motivated by a desire to disenfranchise blacks. But the article also has an intriguing footnote alongside many such laws, stating that "The first state constitution gave the state legislature the power to restrict suffrage for criminal activity."

According to the article, Alabama, Florida, Missouri, and Texas (of the slave states) fall into this category. The article seems to erroneously omit such a footnote as to Mississippi, which it turns out also fell into this category (see Miss. Const. 1817, art. VI, sec. 5). It also doesn't note that Tennessee had a similar provision in its 1834 Constitution, though not in its original constitution. It also doesn't note that the South Carolina Constitution of 1865, which explicitly disqualified blacks as voters, also gave the legislature the power to "impose disqualification to vote as a punishment for crime." This suggests that the drafters of that particular constitution saw disqualification of felons as valuable itself, independently of its effect on blacks voters. (I understand why the authors of the article may have omitted this, but it still seems worth noting.)

Now here is what puzzles me: The earlier Alabama, Florida, Mississippi, and Texas constitutions not only gave the legislature such power, but actually seemed to order the legislature to deny ex-felons the vote: "Laws shall be made by the general assembly to exclude from office, and from suffrage, those who shall have been, or may thereafter be, convicted of bribery, perjury, forgery, or other high crime or misdemeanor (Fla. Const. 1838, art. VI, sec. 13; see also Alabama Const. 1819, art. VI, sec. 5; Miss. Const. 1817, art. VI, sec. 5; Texas Const. 1845, art. VII, sec. 4.) Only the Missouri Constitution of 1820 (art. III, sec. 14) and the Tennessee Constitution of 1834 (art. IV, sec. 2) spoke of legislative discretion ("The general assembly shall have power to exclude . . . from the right of suffrage, all persons convicted of bribery, perjury, or other infamous crime," to quote the Missouri provision).

So my main question: Did the Alabama, Florida, Mississippi, and Texas legislatures indeed fail to comply with the constitutional command until after the Civil War, and did the Missouri and Tennessee legislatures fail to exercise their powers?

And a supplementary question: The 1835 amendments to the North Carolina Constitution, sec. 4, part Four, say that the legislature "shall not have power to pass any private law . . . to restore to the rights of citizenship, any person convicted of an infamous crime; but shall have power to pass general laws regulating the same." This suggests that felons might have lost the vote by having more generally lost the rights of citizenship, even before the Civil War (the Behrens et al. article lists the first felon disenfranchisement law as 1876, but I wonder whether this might therefore be mistaken). State v. Surles, 230 N.C. 272 (1949), notes that in 1854 the North Carolina legislature in fact passed a law providing for a procedure for restoring the rights of citizenship, but doesn't specifically discuss the right to vote. Might North Carolina have in fact disqualified felons from voting before the Civil War?

These turn out to be important questions to the debate about whether some, many, or most felon disenfranchisement laws were originally intended to disproportionately burden blacks, since such a motivation might render them unconstitutional. If you know about antebellum election laws, and thus know the answers to these questions, please e-mail me at volokh at law.ucla.edu. (I'm not planning to blog on the entirely separate question of whether felon disenfranchisement is good policy; right now, I'm just curious about when the statutes were first enacted in the states I identify.)

UPDATE: The post originally said that the 1865 South Carolina was a proposed constitution; it appears, though, that it was indeed enacted, though without popular ratification.

I'm speaking on Slippery Slopes at UCLA Law School Monday, February 14, at 4:30 in room 1430; many thanks to the Federalist Society for organizing this, and to my colleague Mark Greenberg for agreeing to comment on the talk.

Everyone is welcome to attend, though note that parking at UCLA costs $7.

UPDATE: I originally wrongly said Monday the 15th; the talk is Monday the 14th, which is to say this coming Monday.

Slate's Bushism of the Day for today is:

"Listen, the other day I was asked about the National Intelligence Estimate, which is a National Intelligence Estimate." — Washington, D.C., Sep. 23, 2004

Ha ha ha. That President of ours, he's such a doofus. Why would he say "about the National Intelligence Estimate, which is a National Intelligence Estimate"? Hard to believe, but there it is. Or, wait a minute, maybe because it's hard to believe, we should double-check before believing it, no? That is, unless we're so wedded to the "Bush Talks Funny" meme that we've relaxed our normal skepticism and journalistic caution.

Fortunately, reader Jacob Kaufman's skepticism and caution hadn't relaxed, so he found the White House transcript (remember, Slate's Bushism of the Day column never includes pointers to the transcripts). That site happens to have the audio. And the audio, at a little after 30:54, shows that Bush said:

Listen, the other day I was asked about the NIE, which is a National Intelligence Estimate.

Yup, that's right. President Bush used the abbreviation, and then explained what the abbreviation meant. The official transcript erroneously spelled out the abbreviation, though it rendered it in all caps, which — together with the improbability of the President's just saying "the National Intelligence Estimate, which is the National Intelligence Estimate" — might have led a cautious journalist to check into it:

Listen, the other day I was asked about the NATIONAL INTELLIGENCE ESTIMATE, which is a National Intelligence Estimate.

A cautious journalist might also have checked what other sources say. A quick LEXIS search for "Listen, the other day I was asked about the" revealed 10 references, of which 8 contained the term "NIE," and 2 contained "NATIONAL INTELLIGENCE ESTIMATE" (again, in all caps). But apparently the author of the Bushisms column didn't do this check; if he had, then maybe he would have realized that he should try to find the audio, which would have settled the matter.

As I've said before, part of the problem with the Bushisms column is that they often fault the President for things that aren't much worth faulting. But the broader problem is that once a journalist gets into the mindset of "Let me catch Bush misspeaking," it's very easy to start seeing errors where no errors exist. Instead of the normal "Someone says Bush erred, so let's investigate this skeptically" view that journalists should have, the author falls into the habit of assuming that all claimed Bush misstatements are in fact misstatements. And the consequence is screw-ups like this. Shouldn't we expect better from the editor of a leading magazine?

UPDATE: The item is now gone from the Slate table of contents, and its text has been blanked out on the original page; it's to Slate's credit that they so promptly removed the error. I assume Slate will also post another item explicitly acknowledging the error, so that people who read and understandably believed the original item could learn that they'd been misinformed.

It seems to me that this should go both in Slate's Corrections column and as a separate Bushism of the Day item: I take it that many readers who read Bushisms don't regularly look at the Corrections, but will look at the next Bushisms entry. In any event, I take it that Slate will indeed publish an official correction.

An Oklahoma legislator is proposing this bill (see here for a news story); the new provision is italicized:

Section 1111. A. Rape is an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator [the spousal rape ban is in another section -EV] . . . under any of the following circumstances:

1. Where the victim is under sixteen (16) years of age;

2. Where the victim is incapable through mental illness or any other unsoundness of mind, whether temporary or permanent, of giving legal consent;

3. Where force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person;

4. Where the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit;

5. Where the victim is at the time unconscious of the nature of the act and this fact is known to the accused;

6. Where the victim submits to sexual intercourse under the [fraudulently induced] belief that the person committing the act is a spouse, and this belief is induced by artifice, pretense, or concealment practiced by the accused or by the accused in collusion with the spouse with intent to induce that belief . . .

7. Where the victim is under the legal custody or supervision of a state agency, a federal agency, a county, a municipality or a political subdivision and engages in sexual intercourse with a state, federal, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim; or

8. Where the victim is at least sixteen (16) years of age and is less than eighteen (18) years of age and is a student, or under the legal custody or supervision of any public or private elementary or secondary school, junior high or high school, or public vocational school, and engages in sexual intercourse with a person who is eighteen (18) years of age or older and is an employee of the same school system; and

9. Where the victim is an undergraduate student under twenty-one (21) years of age attending any college or university in this state or the victim is attending any public or private secondary school in this state, regardless of the person's age, and engages in sexual intercourse with a person who is an employee of the same college, university or school system unless the two persons were legally married prior to enrollment or employment in such college, university or school. . . . .

So it would be a crime, for instance, for (1) a university professor, (2) a staff member, (3) a student (undergraduate or graduate) who works as a research assistant or a teaching assistant, (4) a student who works in a university cafeteria to have sex with a 20-year-old undergraduate man or a woman. These are 20-year-olds, folks, in a state where it's usually perfectly legal to have sex with a 16-year-old.

Now perhaps this was just a drafting error, though a huge drafting error. Maybe they're just looking to go after those awful lecherous professors who prey on students. That is to say "prey" on adult, 20-year-old students, who are legally grownups, and who are constitutionally entitled to make their own decisions about whom to sleep with (see Lawrence v. Texas). These are not 14-year-olds. They aren't mental patients. They aren't drugged or unconscious. They are old enough to fight in a war. They are old enough to marry without anyone's permission. And the state of Oklahoma is seeking to "protect" themselves against their own decisions about whom to have sex with.

Now I should say that I think schools can quite properly prohibit professors from sleeping with their current students, on threat of administrative sanction or even dismissal. If I were an administrator, I wouldn't trust a professor's evaluations of his own lovers. Such restrictions are legitimate for employers to impose on their employees, though there are also costs when the restrictions are too broad. (I wouldn't, for instance, prohibit all sex that might possibly indirectly cause a conflict of interest — for instance on the theory that this student, while not in your class, may one day take a class from you — or that might in some situations involve coercion. That, I think, is too much of a burden on consenting adult employees' and students' behavior, even if it does help avoid some problems for the university and for some other students.)

But all this is in any event no reason to make sex between professors and students criminal. And it certainly is no reason to criminalize sex between professors and students who are in completely different classes and even completely different departments. Twenty-year-olds are not foolish children. If they're fools, they're fools like the rest of us can be fools, and are entitled to the costs and benefits of their own folly.

(No, I've never had an affair with a student, whether or not my own, while I was a professor, even before I was married.)

Thanks to reader Sydney Henderson for the pointer.

I have in the past criticized law schools' attempts to exclude military recruiters from campus. But I have to also criticize this reaction by a federal district judge (thanks to How Appealing for the pointer):

An Alabama federal judge has told Yale Law School he won't accept its graduates for clerkships because the school blocks military recruiters from campus. . . .

Is it really fair to take the school's actions out on innocent Yale law students? Yes, I realize that the school's actions might themselves be seen as hurting innocent Yale law students to send a message — but that doesn't make it right, nor does it make Yale students responsible for what the law school does.

As unfairnesses go, it's hardly the worst: The students will doubtless have other places to go, and no-one is entitled to a clerkship job. Nor is there anything illegal or unconstitutional about this; federal judges are entitled to discriminate based on the law school an applicant went to (and often do so) unless the discrimination is utterly irrational, and I suppose this probably passes the minimum rationality test. Still, it seems to me that federal judges should strive for a higher level of fairness to applicants than the minimum required by the rational basis test — and should try hard to distinguish the guilty parties from the innocent.

UPDATE: My colleague Stephen Bainbridge has a somewhat different take.

In honor of the 100th anniversary of Ayn Rand's birth, I thought I'd reprise something I posted in the very early days of this blog (though I realize the audience for the following is limited) . . . .

Where Is John Galt? Our tour through the Law of Atlas Shrugged begins with this question, which was the heart of the noteworthy case Temple v. John Galt Co.[1] The Temples (note the antirational religious connection) sued the John Galt Co., but failed in their attempts to serve process by mail. Had they been better read, they would have realized the intrepid hero was harder to find than that. Suffice it to say that, in the ringing words of the Court of Appeals, "the trial court filed a judgment entry, granting John Galt's motion and vacating the default judgment."

But this just returns us to the more familiar Who Is John Galt? Is it indeed the John Galt Co.? Or is it John Galt Associates, of Pakwood Industries v. John Galt Associates?[2] Here, John Galt, a commercial landlord who refused to let tenant Pakwood assign a commercial lease, won again. Galt's refusal to assign, the court said, was "reasonable." (But of course.) Pakwood should consider it lucky that Galt agreed to go to court, rather than just dynamiting the whole property. Whoops, wrong book.

Who else might John Galt be? Surely not John Galt, Ltd. of Assistant United States Trustee v. John Galt, Ltd.[3] or John Galt Energy, Inc. of In re John Galt Energy, Inc.[4] If there's one thing we know, it's that John Galt would never flee his contractual obligations by declaring bankruptcy.

Could he be the plaintiff in Galt v. City of Sparks?[5] The decision is a one-line order which provides only the tantalizing clue that a co-defendant was Policeman Henderson (Badge # 9516 of the City of Sparks). That John, always getting into trouble. Or perhaps the answer lies in Rolfe v. Galt,[6] where John and his wife Lorraine Galt -- how come we never heard about her? -- triumphed over a baseless personal injury lawsuit.

Curiously, I could find no appearance by the rest of John's merry band in the published cases, except for one shadowy figure: none other than Ragnar Danneskjold. Danneskjold v. Brown[7] acknowledges that Ragnar was a veteran (naturally), though apparently one suffering from post-traumatic stress disorder, which seems much less like the Ragnar we know and love.

Ragnar next shows up in Danneskjold v. Hausrath,[8] the case that first revealed this fascinating subject to your humble author, who stumbled on it when doing research for an article he was writing. Here Danneskjold is found to be an inmate at Attica State Prison, suing to challenge, of all things, the Prison's failure to pay him minimum wage for certain work that he was doing. Such a suit may at first sound distinctly unobjectivist, but bear in mind that Danneskjold is demanding a minimum wage from the government, not a private business. (Danneskjold's crime of conviction is not indicated, but since he's being kept in state prison, it probably doesn't involve the high seas -- or could there be an inter-governmental conspiracy afoot?)

Finally, we return to the questions we started with: Where Is John Galt? Who Is John Galt? And a new one, What Ever Became of John Galt?

Here is where John's story draws to a close; for though he emerged a resounding winner from the book, everyone, even (perhaps especially) man qua man, loses in the end. But what a fitting end, as chronicled in State ex rel. Smith v. Greene.[9] "On September 14, 1970," the court explains, "Tri-State Motor Transit was struck by members of Teamsters Local 823." On September 30, "a truck, carrying explosives, owned by Tri-State Motor Transit Company and driven by Galt was struck by rifle fire and exploded. Galt was killed and his clothing, pocket book, money and personal effects, valued at $100.00 were destroyed." "[T]wo teamsters [were] subsequently convicted for the second degree murder of Galt."

Even in death Galt struck a blow for what he held most dear; for State ex rel. Smith is a case about private property. "[T]he substance of the claim here is not wrongful death," the Court said: "It is property damage." And that the "value of the property destroyed . . . was small" could make no difference: The "wrong is just as great as the wrong done to the owner of property of great value."

Property is property. Not only actual damages, but even punitive ones were available, see id. at 60, to punish those who tamper with this sacred principle. Ayn Rand couldn't have written it better herself.

[1] 1997 WL 177627 (Ohio. App.), appeal not allowed, 79 Ohio St. 3d 1491 (1997).

[2] 219 Ga. App. 527 (1995).

[3] 130 B.R. 464 (S.D. W. Va. 1989).

[4] 75 B.R. 658 (Bankr. E.D.N.Y. 1987).

[5] 848 F.2d 1242, 1988 WL 58008 (9th Cir.).

[6] 477 N.Y.S.2d 790 (App. Div. 1984).

[7] 1996 WL 695524 (Vet. App.).

[8] 82 F.3d 37 (2nd Cir. 1996).

[9] 494 S.W.2d 55 (Mo. 1973).

The Times (London) reported last Sunday -- thanks to Phil Carter for the pointer -- that

LAWYERS acting for J K Rowling are heading for a legal battle with the US army over a training manual that features characters similar to those in the Harry Potter books and films. . . .

The magazine, The Preventive Maintenance Monthly, includes a cartoon character called Topper, a boy wizard, who attends Mogmarts school of magic. Harry Potter, Rowling's boy wizard creation, attends the Hogwarts school of magic.

In the magazine, army officials are given a lesson from Professor Rumbledoore and his staff, a name strikingly similar to Rowling's Professor Dumbledore. Other characters in the magazine include professors McDonagal and Snappy, and a Miss Ranger. The Harry Potter books feature professors McGonagall and Snape and Hermione Granger.

I'm not sure that the similarity of names alone would constitute infringement, but it would be close, and if they also borrow the characters' character traits, then it probably would be infringement. The military has a decent fair use claim, but far from an open-and-shut one -- they seem to be using Rowling's characters to make their own point, rather than commenting on them, and this cuts substantially against their fair use argument.

Nonetheless, what struck me most about the article is this:

A spokesman for the American defence force said: "Each copy of our magazine is reviewed by our legal office.

"After reviewing this copy they judged that we were doing nothing wrong and that these characters were in parity use."

Pretty clearly it must have been "a parody use," not the nonsensical "in parity use." Maybe the spokesman jumbled this himself, but more likely the reporter mistranscribed it. Just further evidence that you can't always trust even supposedly direct quotes, especially when they talk about Judge Ito with the wet nose.

The Foundation for Individual Rights in Education reports the outcome of a controversy I noted a while back:

The University of California at Santa Barbara (UCSB) has abandoned an attempt to force the owner of a website called The Dark Side of UCSB from using the letters "UCSB" in his web address. UCSB threatened Mr. James Baron, the site's owner, with criminal sanctions if he did not change the site's address. The Foundation for Individual Rights in Education (FIRE) protested UCSB's unconstitutional threats, and on the very same day that UCSB received FIRE's letter, the university notified Mr. Baron that it would pursue the matter no further.

"We are relieved that UCSB has come to its senses and realized that it may not prohibit those who might criticize the university from using the university's name," remarked FIRE President David French. "UCSB twice told Mr. Baron, whose website is critical of the university, that it was a crime to use the UCSB name without the university's permission. It is simply absurd for a public university to claim that it cannot be criticized by name."

Mr. Baron created www.thedarksideofucsb.com to draw public attention to what he and others see as a dangerous and lawless campus culture at UCSB. The website criticizes USCB administrators for not doing enough to change this culture. In November 2004, UCSB sent Mr. Baron two notices claiming that he had violated California law by including the letters "UCSB" in the web address, and that using the letters without permission could make him "guilty of a misdemeanor" under Section 92000 of the California Education Code. Asked about the university's actions in an article in UCSB's campus newspaper, administrator Margaret Clow claimed that the university was concerned that Internet users would believe The Dark Side of UCSB was an official UCSB website. . . .

I was hoping that someone who lives around Glendale, California might take a photo of something in Glendale and send (or, better yet, e-mail) me the photo. If you might be willing to help me out with this, I'd be much obliged; just let me know, please, at volokh at law.ucla.edu, and I'll give you the details.

UPDATE: Reader David Reed has taken care of this; many thanks to him!

Orin's post reminds me of this mind-reading card trick. Except this one really works -- it actually does read your mind. I'm a believer. It's magic, man, magic.

(This skeptical explanation is obviously a fraud, created by dry, boring rationalists who are trying to suck the mystery out of life.)

and for group blog editors (like me): The New Jersey Appellate Division has just held (Donato v. Moldow, decided on Jan. 31) that a federal statute — 47 U.S.C. sec. 230 — makes Web site operators immune from defamation liability based on items posted by users, even when the operator keeps some messages and deletes others, changes some messages, sets ground rules for the discussion, and so on. This would also mean that bloggers are immune from liability based on comments posted by others on their blogs. And I'm pretty sure that it means that group blog editors are immune from liability based on things posted by their cobloggers (not that I ever worried about my cobloggers' actions!). Of course, bloggers and others remain liable for statements that they themselves have made.

For an earlier case that foreshadowed this, and that was in fact cited by the New Jersey court, see here. There have been one or two court decisions that have taken a narrower view of 47 U.S.C. sec. 230, but the dominant approach is the one that the New Jersey court accepted.

The Mommy Blawger asked me something that I'd wondered about, too: Why do legal works tend to use Id. to mean "same source as last time" rather than the Ibid. that's more common in other disciplines? I asked my brother Sasha, who is generally The Man Who Knew Too Much but in particular my Latin expert. Here's his answer:

"Id." is short for "idem," meaning "the same (man or thing)." "Ibid." is short for "ibidem," meaning "in the same (place)."

So you can find usages where "id." is for people and "ibid." is for books. For instance, see here. So I've seen things like "Jefferson, Book A" and then "id., Book B."

While that last source says "ibid." should stand in for the entire source (author + book), hereyou can see someone using "Id., ibid." to mean "The same author, in the same book." here you can see "Kant, ibid." where "id." would be inappropriate for Kant since the preceding source wasn't Kant. That's problematic (just like another old-style citation term, "op. cit.", since the reader might have to leaf through several pages to find the last time you cited Kant and see what book you were talking about),

Some (for instance, here) say that "ibid." means "EXACTLY in the same place," so you can say "ibid." for the same page of the same book, while if you're changing pages you should say "id. at 581" or similar (see here).

The bottom line, though, is that even though some disciplines use both "id." and "ibid.", and various style guides will explain the difference, there's really no reason to have both of them. Of course, the Bluebook has entirely dropped the distinction; and I read a president's introduction to an old volume of Law Reviews where he announced that they were finally dropping the "id."/"ibid." distinction which no one could really understand anymore.

but you might have lost it by having ads or a tipjar.

This surprised me, too, but it seems to be so. Here are the details. (Thanks to Kurt Opsahl of the Electronic Frontier Foundation for first suggesting this point, and to my wife for her advice on insurance law. Please note, though, that I'm not an insurance lawyer, though I've done a bit of research on this subject. Don't take this to the bank, and do let me know if you are an insurance lawyer and have some corrections. Consider this general speculation about the lay of the land, and not individualized legal advice.)

1. It turns out that homeowner's insurance policies, and possibly also some renter's insurance policies, generally cover libel lawsuits. That may sound odd, but the policies tend to cover both damage to your property (the main reason, I suspect, that most people buy these) and liability for unintentional harm that you inflict on others. One policy that I read, for instance, says that

If a claim is made or a suit is brought against any insured for damages because of bodily injury . . . caused by an occurrence to which this coverage applies, we will:

1. pay up to our limit of liability for the damages for which the insured is legally liable; and

2. provide a defense at our expense by counsel of our choice even if the allegations are groundless, false, or fraudulent. . . .

POLICY DEFINITIONS . . .

"Bodily injury" means; . . . personal injury . . . arising out of . . . libel, slander or defamation of character; or . . . invasion of privacy.

If you have an umbrella liability policy, it may provide extra monetary coverage. Of course, you're only covered if your insurance contract does indeed specify this, explicitly or implicitly. You ought to read your policy (they are often quite readable), and pay close attention both to the body of the policy and any separate definitions section.

2. These policies generally don't cover punitive damages, but they do cover both compensatory damages and litigation defense costs. Fortunately, that's what you most want to have covered.

Libel cases are hard for plaintiffs to win, and punitive damages are especially hard to get. If you're writing on matters of public concern, and are sued for libel, you can't be liable for punitive damages unless a jury finds that you knew your statement was false or at least knew it was quite likely false but blithely published it without any investigation. So chances are you won't be on the hook for punitive damages, or even for compensatory damages.

But even if you win, you could spend huge amounts of money defending yourself. That's where the insurance can be especially handy.

3. However, these policies generally explicitly exclude liability related to "business pursuits." The exclusion and the definition of "business pursuits" may vary from policy to policy, so check yours (and again check both the homeowners' insurance and your umbrella policy, if you have it). Still, I'm told that most policies just say "business pursuits," and sometimes define them as referring to a "trade, occupation, or profession."

If your blog is entirely noncommercial — you neither have ads nor solicit donations for a tip jar, and you don't systematically use your blog as primarily promotion for your business — then you should be covered for libel lawsuits arising out of your blog posts, because the blogging wouldn't be a business pursuit. (Possible exception: If your primary occupation is a professor or a journalist, then even noncommercial posting on topics related to your specialty may conceivably be seen as part of your main occupational "business pursuit"; I know of no precedents one way or the other about this.)

But if you make some money out of it, even a small amount, then in many states you probably won't be covered. In a few states (as best I can tell, Georgia, Indiana, Minnesota, Mississippi, North Carolina), even a blog that makes some money will be covered if blogging isn't your primary occupation. In Arkansas, Idaho, Louisiana, and Michigan, you might be able to get coverage on the theory that making money wasn't your primary motive in blogging, and that you were instead doing it as a hobby with money being only a side consideration. Still, the majority view, as I understand it, is that any moneymaking component (so long as it's regular, rather than just one-time or highly intermittent) makes your blogging into business activity and thus excludes it from coverage. This isn't entirely clear, but that's my sense from reading some cases and a couple of reference works.

4. This means that if you're worried about the risk of libel lawsuits, you might want to consider staying entirely noncommercial. Naturally, you wouldn't have to do it if you live in a state which reads the "business pursuits" exception narrowly. (Most homeowner's insurance policies, I'm told, don't have a separate provision indicating what state law would be used to interpret them, so courts would generally apply the law of where you live.) And if you figure that you'll make lots of money from the ads or the tip jar, you might be willing to run the risk, especially because libel lawsuits against bloggers are thankfully rare, and because you might think that your posts would be unlikely to trigger a lawsuit.

But if you think that having libel insurance will let you sleep better at night, you might conclude that it's better to forego, say, $500 worth of advertising income in a year in order to remain insured.

5. What should you do if you get a threatening letter?

1. Read your insurance policy. As I said, it may not be a hard read. Pay close attention to all the sections, to see if there might be some unexpected exclusion that may apply. Also pay close to attention to the definitions section, since some terms may be defined in counterintuitive ways.

2. Immediately notify your insurance company, in writing, that there might be a claim against you; send them a copy of the nastygram you received, and a dated cover letter. Tell the company that you need to consult a lawyer to deal with the threatening letter, and ask them to get you a lawyer right away, or to authorize you to consult one yourself on their dime. The insurance company may not have an obligation to pay your lawyer's bills until the lawsuit is filed, but it doesn't hurt to ask.

   I'm told that you can usually do the notification through your insurance broker, who knows how to deal with the company, and whom to talk to there. In any case, talk to your broker and see whether he'll do the notification for you or whether you ought to notify them yourself.

   Always communicate in writing, keep copies of all communications, and date all your communications. You can also call them (particularly important if you need to nag them), but confirm any substantive communications in writing.

3. If the other side's gripe with you is sound — if you did indeed err — post a correction. It's the right thing to do, and it may avoid a lawsuit.

4. If a Complaint is filed against you in court, notify the insurance company about that, too, by sending them a copy of the Complaint with a dated cover letter. Demand that they get back to you quickly about whether they're hiring a lawyer on your behalf.

   If they don't tell you quickly, hire a lawyer yourself, and show him a copy of the insurance policy. Then inform the company that you've hired the lawyer, and that you expect them to pay the bills. Bug them repeatedly, if necessary, including through your insurance broker. If your policy covers libel, and you aren't within the business pursuits exclusion, you likely have a very strong case for coverage; but they can still be slow, and you need to be the squeaky wheel.

5. If you do hire a lawyer, show him the policy, and negotiate with him in light of the policy. See if he would agree to represent you for rates that he's pretty sure the insurance company would pay. See if he would agree not to charge you if the insurance company denies coverage. That, of course, depends on his sense of how likely coverage seems to be. But cyber-libel cases are potentially pretty interesting, even glamorous. Some lawyers may be willing to take a small risk of nonpayment to do a fun case like that.

In any case, these are just a few thoughts; use these numbers for comparison, your mileage may vary. But keep in mind that (1) you may already have libel insurance for your blogging, (2) you might lose it, depending on the state you're in, if you sell ads, have a tipjar, or otherwise make even small sums of money from your blog, (3) you may therefore want to plan your blog financing accordingly, if you're the worrying sort (or for that matter the libeling sort), and (4) if you are sued or threatened with a lawsuit, look carefully at your insurance policies, notify your insurance company immediately and in writing, and bug them repeatedly for an answer.

Another example of the conflict between the two (and not the first instance of veteran status harassment claims being brought as a means to restrict speech):

Political bumper stickers and articles posted on a professor's office door are raising questions about free speech and harassment at Keene State College.

Shane Calchera, a student and military veteran, accused associate history professor David Stowell of harassment, saying the anti-war, anti-Bush administration statements on his office door created a learning environment that is hostile to veterans.

The college cleared Stowell of the charge . . . but the professor said that the investigation itself was an attack on his free-speech rights.

"I was investigated because of my political views because someone objected to them, and that's frightening," Stowell said. "Everyone on campus should be concerned."

"Regime change begins at home," "Stop the war," and "How many Iraqi children did we kill today?" read some of the 15 items on his door. . . .

Calchera said he didn't realize he had filed a formal complaint. He said he simply wanted his concern addressed: that state property was being used to create what he felt was an environment hostile to military veterans.

The school's harassment policy defines "veterans status" as a protected group.

He said he wouldn't have a problem with the postings if they were on Stowell's own property, but he objects to them being in a place he is forced to go as a student — a professor's office door. . . .

Professor Stowell's speech of course shouldn't be censored — but neither should postings by professors or students that offend people based on race, religion, sex, and the like.

Incidentally, the Keene harassment policy prohibits (among other things) "jokes" and "remarks made in the person's presence" that "creat[e] a hostile or offensive working or academic environment" based on "race, color, religion, sex, age, national origin, sexual orientation, marital status, veteran's status or disability." Pretty clearly unconstitutional as applied to speech (except speech that falls within exceptions such as threats).

The college was probably right in concluding that these posters weren't enough to violate the policy, since they probably weren't severe or pervasive enough to create an offensive environment, and in any event they need not be especially offensive to veterans because they are veterans. But even if the speech had been more common and explicitly anti-veteran, the way to deal with wrongfully offensive environments is for the school to speak up in condemnation of the rude and in defense of the offended, not for it to forcibly suppress such speech. (The matter may be different as to direct speech by professors to particular students, especially in class -- a complex question -- but posted materials on people's offices should be protected even if they are offensive to some passersby.)

The University of Colorado doesn't fire him, and in exchange he promises to change his last name to anything but Churchill. (You decide which wartime political leader's name you might suggest to him instead.)

in the challenge to the D.C. gun ban, holding that citizens can't challenge the ban unless they're being prosecuted for violating it, or at least have shown some serious threat of imminent prosecution. Haven't closely read the whole decision yet, but that's the gist.

Neither the majority nor the dissent express a firm view on the Second Amendment issue. Both opinions acknowledge that the Second Amendment challenge raises an arguable constitutional question, but they don't explain their views on that question (which makes sense given that the debate is about the procedural issue).

Thanks to Matt Rustler for the news.

We've occasionally had glitches with the blog's appearance on Macs. If you've had such problems in the past (but are still reading the blog, for instance because the problems are intermittent or bearable, or because you can read it on a PC at the office), could you please check again on your Mac, and e-mail me at volokh at law.ucla.edu if you're still having problems? If everything is fine, then no need to e-mail. Thanks!

just wait five minutes and then reload. At around 8 pm Pacific, we're rolling in a slight formatting change -- it should fix a few glitches, but for a few minutes it will make the text look odd. Thanks, and please bear with us.

photoblogs, by popular demand.

Several people have e-mailed asking whether I still have copies of the book left to sign and send. (Yes, seriously, they have asked this; I'm not just making this up for another chance to plug the book.) I have sold most of the 60 books I got from the publisher, but I do have 12 left, and when I run out, I can get more. So if you're inclined to order a personalized copy, just follow the instructions here. And of course unpersonalized copies are available on amazon.com.

Here's a good, though necessarily incomplete list.

A friend pointed me to this expression by Karl May (1842-1912), a German novelist: "Mitgegangen, mitgefangen, mitgehangen," which basically means "gone with, caught with, hanged with." Naturally, like "trust but verify" (dover'ay no prover'ay) and "forewarned is forearmed" (praemonitus, praemunitus), it works best in the original.

Lawprof Peggy McGuinness has an interesting post on this at Opinio Juris, "A weblog dedicated to reports, commentary, and debate on current developments and scholarship in the fields of international law and politics." In general, if you're interested in international law, Opinio Juris is much worth reading.

I do hope to blog some more about the academic freedom questions raised by the Churchill case (plus some of the other matters we've recently discussed, such as the LeMoyne and the UNLV controversies), but I'm afraid I've gotten so much e-mail on the subject -- 25 messages that I haven't yet responded to, in addition to others that have already prompted follow-up posts -- that I'm sure I won't be able to get to all the issues. My apologies for not responding to those items, though as I said I hope to have some more general responses in the days to come.

Clayton Cramer writes about, among other things, holding Paul Revere's hunting gun and pocket pistol in his hands.

Eric Alterman has a remarkable post defending Muslim groups' decision not to attend commemorations of the Holocaust. (Thanks to Cathy Young's column, which also criticizes Alterman on similar grounds, for the pointer.) The post is mostly a rant against Andrew Sullivan's condemnation of the groups, but here's the key part:

Look, unlike[ Andrew Sullivan], I'm a Jew, but I don't expect Arabs to pay tribute to my people's suffering while Jews, in the form of Israel and its supporters -— and in this I include myself — are causing much of theirs. Would Andrew want to go to a service in honor of the suffering of gay bashing bigots? . . . Anyway, I'm sure what I'm saying will be twisted beyond recognition, and so I suppose that makes it stupid to do, but I'm sorry. The Palestinians have also suffered because of the Holocaust. They lost their homeland as the world — in the form of the United Nations — reacted to European crimes by awarding half of Palestine to the Zionists. They call this the "Nakba" or the "Catastrophe." To ask Arabs to participate in a ceremony that does not recognize their own suffering but implicitly endorses the view that caused their catastrophe is morally idiotic — which is why, I guess, I'm not surprised Andrew's doing it.

Now let's briefly analyze this: Alterman is not just saying that Muslim groups are not interested in commemorating the harm done to a group that they're now hostile to. (He is partly saying that, which acknowledges that many Muslims are hostile to Jews, and not just to Israel, but that's not all he's saying.) I should say that such a view would be understandable, though not laudable; it's human nature not to much feel the suffering of others, especially if you have some hostility to them.

Rather, he's analogizing the victims of the Holocaust (those who suffering is honored) to "[Muslim]-bashing bigots." It's not the Israelis who are being honored, it's the slaughtered and nearly slaughtered European Jews. Yet somehow they reverse-inherit the supposed guilt of Israelis and other Jews today. Men, women, children butchered in Auschwitz, even ones who had never had much interest in Palestine and who had no opinions at all to Muslims — quite analogous to "[Muslim]-bashing bigots," yes, indeed.

This strikes me as the classic morality of group guilt. Jews of the 1940s are morally tainted by their supposed sins today; we should hate ethnically Japanese because of Pearl Harbor; Jews killed Christ (assume for a moment that this is historically accurate — the hostility to Jews would remain wrong even then) so Jews today are culpable; many Arabs support suicide bombers, so I shouldn't care about wrongs being done to completely innocent Arab-Americans.

As to who suffered from the Holocaust, it seems to me that the U.N. partition of that part of the world — followed shortly by the 1948 war in which the Arabs tried to destroy Israel, and Israel won and obtained the customary spoils of war — is quite a bit different from the Holocaust. (Among other things, there were Jews living there, who had something of a claim to their own state, too.)

But if you really want to take the "who suffered" perspective, well, many innocent Germans surely suffered a great deal from World War II. Some of them may have various grounds for complaint against the Allies, from the Dresden bombings (I'm not an expert on them, but I know there are plausible claims that they went beyond what should be done even in a total war) to what I understand was a massive and largely unpunished wave of rapes of German women by many Soviet soldiers. So I take it that it would be "morally idiotic" to ask those innocent Germans "to participate in a [Holocaust commemoration] ceremony that does not recognize their own suffering but implicitly endorses the view that caused their catastrophe" (i.e., that many Germans were guilty of heinous crimes)?

I would have thought that good people should generally mark with sadness the mass murder of innocents, and set aside for another day the debate about what other wrongs should be commemorated or righted. Now I realize that people (whether Jews, Arabs, Germans, Americans, Russians, or anyone else), even people who are otherwise good, sometimes don't rise to the occasion this way. Again, if Alterman had simply pointed out that this is human nature, and doesn't merit harsh condemnation, I wouldn't be criticizing him.

But instead, Alterman descends into ascribing ethnic guilt, the very moral fallacy that has helped cause so much mindless slaughter. And on top of that, he ascribes the guilt to the slaughtered innocents of the Holocaust. Shameless, and shameful. In the words of Cathy Young, "Alterman frets that his words will be 'twisted beyond recognition,' but it's hard to see how they can be twisted into something more indecent than they already are."

I just got a mass e-mail from the American Conservative Union that says:

Dear Friend of ACU:

QUESTION: Who made the following statement?

"(The U.S.) military and the insurgents (in Iraq) are fighting for the same thing, the hearts and minds of the people."

A) Terrorist Leader Abu Musab Al-zarqawi B) Osama Bin-Laden C) Saddam Hussein D) Ted Kennedy

The correct answer is D.

I'll be frank. Ted Kennedy he has simply gone too far.

Ted Kennedy should be held to account for his words and actions.

Use the hyperlink below to send your personalized Blast Fax message to Senator Ted Kennedy, Vice-President Dick Cheney and the remaining five Members of the Senate Leadership, all six Members of the Senate Ethics Committee and the remaining twenty-three Members of the Senate Armed Services Committee. Tell them that Senator Kennedy has given aid and comfort to the terrorists and that he is unfit to sit on the Armed Services Committee.

http://www.grasstopsusa.com/acukennedy.html

The trouble is that whatever bad things Kennedy might have said -- and I'm sure he's said plenty -- this isn't one. First, some context from Kennedy's remarks (made Friday, February 4):

Too many Iraqi people do not believe that America intends no long-term military presence in their country. Our reluctance to make that clear has fueled suspicions among Iraqis that our motives are not pure, that we want their oil, and that we will never leave. As long as our presence seems ongoing, America's commitment to their democracy sounds unconvincing.

Other indications of anti-American sentiment are clear. CDs with photographs of the insurgents are spread across the country. Songs glorify combatants. Poems written decades ago during the British occupation after World War I are popular again.

We have the finest military in the world. But we can't defeat the insurgents militarily if we don't effectively address the political context in which the insurgency flourishes. Our military and the insurgents are fighting for the same thing -- the hearts and minds of the people -- and it is a battle we are not winning.

The goal of our military presence should be to allow the creation of a legitimate, functioning Iraqi government, not to dictate it and not to micromanage it.

Kennedy is complaining that the Iraqi insurgents (a fairly neutral term, not as harsh as I might like, but nothing I can complain about) are trying to get the Iraqi population to sympathize with them and to hate us. That seems quite right. Of course, the Iraqi insurgents are also trying to influence the Iraqi people by terror, not just sweet reason; but they surely are trying to win people over as well as frightening them.

Kennedy is also claiming that we aren't winning the public relations battle in Iraq. I don't know if he's right or wrong, but it seems to me like a plausible position. The election suggests that the Iraqi insurgents haven't won over or intimidated all Iraqis. But my sense is that we aren't vastly loved there, either, and that in some areas a considerable chunk of the public (enough to cause serious problems for us and for the new Iraqi government) is indeed on the insurgents' side.

Now Kennedy may well have been wrong in some of the other things he said in that speech. He surely has been wrong in lots of other things. Fault him for that. But this statement is hard to see as "go[ing] too far" (unless one reads it as a claim of moral equivalence between us and the insurgents, which neither the context nor the text supports).

Even if you think Kennedy deserves whatever criticism he gets, the viewpoint expressed in that particular phrase is a plausible and quite possibly correct viewpoint. The viewpoint shouldn't be denounced simply because we might not like the person who conveys it.

In the past, we've sometimes posted about how various people don't seem to give Justice Thomas a fair shake (see, e.g., here and here). Here's another example, from a panel that I was on a while back. Another panelist, a noted constitutional law scholar and expert on — among other things — the First Amendment and the Supreme Court, said (this is a transcription from an audiotape I have of the panel; emphasis added):

Here again I want to make three quick comments. The first concerns the lineup of the Justices. And specifically, I want to talk about Justice Thomas' vote. After all Justice Thomas would be thought of as probably the most conservative or one of the two most conservative Justices on this Court; on any Supreme Court case in history. And yet I think there are two principles that explain Justice Thomas' votes. Not all of the votes, but some of them. First he'll consistently vote in favor of pornography under the First Amendment and second he'll always vote against plaintiffs in sexual harassment cases. As to the former, this case illustrates it, a case from a couple of years ago, Free Speech Coalition v. Ashcroft illustrates it. And to the latter with regard to sexual harassment there's a Supreme Court case this term, Pennsylvania State Police v. Suders, which was an 8-1 with only Justice Thomas voting against the sexual harassment victim. Now if one thinks back to Justice Thomas' confirmation hearing, one might predict an opposite set of votes, but I think this says something very revealing about Justice Thomas' personality, what he's trying to say, with regard to his reaction to his confirmation battle.

As it happens, Justice Thomas does indeed take a narrower view of hostile environment harassment law than do some other Justices; he's mostly with Justice Scalia and Chief Justice Rehnquist on this, though occasionally he does write alone. He has voted for sexual harassment plaintiffs in the unanimous Oncale v. Sundowner Offshore Services (writing a one-line concurrence that didn't disagree with the bottom line) and Harris v. Forklift Systems, so "always" is wrong. But let's set that aside for now.

The trouble is that it's simply false to say that Justice Thomas "consistently vote[s] in favor of pornography under the First Amendment." I give below a list of what I think are all the porn-related cases that Justice Thomas has considered while on the Court, and here they are. When Justice Thomas's vote would clearly protect porn or clearly authorize its restriction, I've just used one word "protect" or "restrict"; when it was based on a more pro-restriction approach than some of the other pro-restriction votes, I've said "restrict+"; when it was based on a less pro-protection approach than some of the pro-protection votes, I've said "protect-":

Surely this is not "consistently vot[ing] in favor of pornography" — it's voting for protecting pornography in some situations (though not as often as, say, Justices Kennedy or Ginsburg, or even Stevens or Souter) and against it in others. So I said as much in my exchange with the other professor, though with many fewer details than I give above; I cited X-Citement and Denver Area, pointed out that Justice Thomas's pro-protection votes in Free Speech Coalition and Playboy were quite narrow, and explained that in Playboy Justice Thomas basically took a formalist view that obscenity could be defined broadly and was unprotected, but material outside the obscenity definition was protected.

Here's what the other professor said in response:

As to the second point about Justice Thomas, he is not going to position me into rationalizing or defending Justice Thomas' opinions. I do find it curious that Justice Thomas does often, does not always vote in favor of, the pornography position and he consistently votes against plaintiffs in sexual harassment cases. I leave you to draw your own conclusions.

So this professor — who knows the First Amendment caselaw quite well — says that he won't be "position[ed] into rationalizing or defending Justice Thomas' opinions," not even to the extent of squarely acknowledging his error. He seemed happy to insinuate that Justice Thomas's supposed affection for pornography leads him to "consistently" vote to protect pornographers, even though that turns out to be false. But then when confronted with his error, the chief response is that he won't rationalize or defend Justice Thomas's opinions.

Now I suspect that the professor sincerely believed he was right when he made his initial statement. But in fact he was wrong, and as a constitutional scholar who often opines on the First Amendment, he should have known better.

Yet I also suspect that his contempt for Justice Thomas blinded him to this reality: Rather than looking squarely at the facts, the professor selectively ignored those that were inconsistent with his pejorative theory.

The professor's hostility was intense enough that it kept him from thinking straight, as intense hostility often does. And I think this is pretty emblematic of how some on the left react to Justice Thomas.

A google search for Eugene Volokh Climate Change Skeptics yields as the first item a page with the header "Factsheet: Eugene Volokh." The left sidebar begins with:

EXXONSECRETS.ORG

Documenting Exxon-Mobil's funding of climate change skeptics.

The body of the page points out the apparent reason for my being listed: I'm an Academic Advisory Board Member for the Reason Foundation, and I'm on some similar boards for the Heartland Institute and the Pacific Research Institute for Public Policy.

Except I've never been funded, to my knowledge, either by Exxon-Mobil, the Reason Foundation, the Heartland Institute, and the Pacific Research Institute for Public Policy. My board membership is entirely unpaid. I have been paid for two articles in Reason Magazine, and I spoke once at a Reason Foundation event, for which I must have been paid an honorarium; but in that respect I'm equally funded by the New York Times, Hofstra University Law School, and dozens of others. This is not, I suspect, what "Exxon-Mobil's funding" would normally mean to people.

What's more, I'm not even a climate change skeptic in any significant sense. I don't believe I've ever publicly spoken out about climate change, largely because I know next to nothing about the subject. If "climate change skeptic" means someone who has publicly taken a position skeptical of various climate change theory (which I suspect is the normal meaning of the phrase), I'm not it.

Now if they want to maintain a database of people who are affiliated with various groups that have gotten money from Exxon-Mobil, on the chance that these people may at some time speak out about climate change, that's fine. They should just make sure that the Web pages make that clear. But if the Web page lists my name alongside the phrase "Documenting Exxon-Mobil's funding of climate change skeptics," then facts aren't what the page is conveying.

WTVH reports:

A graduate student at LeMoyne College has been expelled for writing a paper on his opinion that corporal punishment should be allowed in the classroom. Scott McConnell was working on his master's degree in the science education program at LeMoyne. He wrote his "Classroom Management Plan" paper in November. After receiving an A- on the paper from his professor, the college decided to expel McConnell. . . .

LeMoyne released the following statement on the matter: "If we believe a student is not suitable for classroom instruction based on his or her educational philosophy we have an obligation that is consistent with the College's mission and that upholds New York State law and education regulations." . . .

Now it's possible there's something omitted from the story, and LeMoyne's actions were based on something other than just McConnell's opinion about what should be allowed. But if the story is accurate and reasonably complete, this seems just appalling: A student expresses his views that some education policy is changed, and then he's expelled?

Here, in fact, is a powerful criticism of LeMoyne College's actions:

A college or university is a marketplace of ideas, and it cannot fulfill its purposes of transmitting, evaluating, and extending knowledge if it requires conformity with any orthodoxy of content and method. In the words of the United States Supreme Court, "Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die."

These words come from The LeMoyne College Faculty Handbook — Regulations on Academic Freedom and Tenure.

Thanks to InstaPundit for the pointer.

UPDATE: This news story provides more data. First, it suggests that the student wasn't expelled as such, but rather that he had been "conditionally accepted last summer and fall and was expecting to be fully accepted this spring," had taken classes at the school (including the one for which he read this paper), but then had his conditional acceptance revoked. I don't think this changes the academic freedom issue, but I thought I'd note it in any case.

The story also quotes the acceptance withdrawal letter, written by the program's director, as saying that "I have grave concerns regarding the mismatch between your personal beliefs regarding teaching and learning and the Le Moyne College program goals." It goes on to say that the student "said he's also been trying to find out what Leogrande meant by 'mismatch.' College administrators have told him, he said, that it stems from the four-page 'Classroom Management Plan' he submitted Nov. 2 for his Planning, Assessing and Managing Inclusive Classrooms class.

"In the opening paragraph of his essay, McConnell wrote: 'I do not feel that multicultural education has a philosophical place or standing in an American classroom, especially one that I will teach. I also feel that corporal punishment has a place in the classroom and should be implemented when needed.' He got an A for the course."

The story goes on to give more details; please read it here. Nonetheless, this suggests to me that the initial press accounts were substantially true: The student expressed a view about the way education ought to be conducted that was contrary to the established orthodoxy; and as a result he was kicked out of the program to which he'd been conditionally admitted. Sounds like the university is "requir[ing] conformity with . . . orthodoxy of content and method."

If they want to insist on such conformity, they are legally free to do so (as a private university, they aren't bound by the First Amendment). But if that's so, then they should make it clear to students, donors, and others, rather than singing paeans to academic freedom and then kicking out students for the very "inquir[y]," "evaluat[ion]," and participation in "a marketplace of ideas" that the university supposedly praises.