An excerpt:

My generation turned against authority in a huge way. And, it must be said, with some justification. Watergate, Vietnam, and so on all called into question the legitimacy of most authority figures. As boomers entered the media, the [mainstream media] evolved from bastions — even defenders — of authority into authority's chief public critic. Woodward and Bernstein defined the wet dreams of every subsequent journalist — to take down authority figures. And so it has been ever since, with every minor scandal being elevated into "[fill in the blank]-gate."

But now this particular pigeon has come home to roost. . . . [T]he media has reaped what it sowed. The media legitimated and perpetuated the Sixties' radicals critique of authority. In doing so, however, it sowed the seeds of its own loss of authority. Since some of those seeds turned out to be dragons' teeth, the media is now reaping the whirlwind. . . .

Read the ">whole post for more.

The New York Times reports, in an article about the Eason Jordan resignation from CNN and bloggers:

[S]ome in the traditional media are growing alarmed as they watch careers being destroyed by what they see as the growing power of rampant, unedited dialogue.

Steve Lovelady, a former editor at The Philadelphia Inquirer and The Wall Street Journal and now managing editor of CJR Daily, the Web site of The Columbia Journalism Review, has been among the most outspoken.

"The salivating morons who make up the lynch mob prevail," he lamented online after Mr. Jordan's resignation. He said that Mr. Jordan cared deeply about the reporters he had sent into battle and was "haunted by the fact that not all of them came back."

Now I realize that "lynch mob" is figurative, and hyperbole at that. Still, figurative references and analogies (even hyperbolic ones) only make sense to the extent that the analogy is apt -- to the extent that the figurative usage, while literally false, reflects a deeper truth.

The trouble is that here the analogy is extremely weak. What's wrong with lynch mobs? It's that the mob itself has the power to kill. They could be completely wrong, and entirely unpersuasive to reasonable people or to the rest of the public. Yet by their physical power, they can impose their will without regard to the law.

But bloggers, or critics generally, have power only to the extent that they are persuasive. Jordan's resignation didn't come because he was afraid that bloggers will fire him. They can't fire him. I assume that to the extent the bloggers' speech led him to resign, it did so by persuading the public that he wasn't trustworthy.

So Jordan's critics (bloggers or not) aren't a lynch mob: If they're a mob, they're at most a "persuasion mob." What's more, since they're generally a very small group, they're really a "persuasion bunch."

Maybe if a persuasion bunch tries to persuade people by using factual falsehoods, they could be faulted on those grounds (though that too has little to do with lynch mobs). But I've seen no evidence that their criticisms were factually unfounded, or that Jordan quit because of any factual errors in the criticisms. (Plus presumably releasing the video of the panel would have been the best way to fight the factual errors.)

We should love persuasion bunches, who operate through peaceful persuasion, while hating lynch mobs, who operate through violence and coercion. What's more, journalists -- to the extent that they love the First Amendment's premise that broad public debate helps discover the truth, and improve society -- ought to love persuasion bunches, too. When the only power you wield is the power to speak, and persuade others through the force of your arguments (and not through the force of your guns, clubs, or fists), that's just fine. Come to think of it, isn't that the power that opinion journalists themselves wield?

In any of event, figurative usages and analogies are good when they help us engage in clear thinking. Unsound analogies lead to muddled thinking -- and, come to think of it, they usually flow from muddled thinking, too.

A law-blogger writes me:

In [Academic Legal Writing] you stress that authors should tell people about their articles. Here's a funny story about a failure to do so.

I read [an article in a recent issue of a law journal]. I liked it and linked to it -- and I e-mailed the author to tell him.

Turns out he reads my blogs, and even relied on them for some research (I suspected as much) and was very pleased I linked to his article.

The issue, of course, is why he didn't e-mail me a link to his article? . . . [L]egal bloggers are about the best people to let know about new articles.

I don't think I'm a big player or anything, but it's odd that someone who reads my blogs and writes an article related to their subject matter wouldn't tip me off. (I also noticed that the article has been viewed by a substantially larger number of people since I linked to it.)

I think the answer is that lawyers just don't know much about marketing their legal articles, it seems.

Great advice -- and a great admonition to me, since the Publicizing chapter in my book doesn't mention publicizing to law bloggers. Sounds like I have a thing or two to learn about marketing, even though I'm a law blogger myself, and someone who's interested (and moderately experienced) in promoting ideas. D'oh.

In any event, this tip is going into the Third Edition, when (if) it gets produced, but in the meantime, I place it here. Many thanks to my correspondent for pointing it out.

The Clovis (New Mexico) News Journal reports:

Stickers on a Clovis man's car portray cartoon images of bare-breasted female devils in sexually compromising positions. [See here for an image of what seems likely to be the sticker.-EV] And the images have caught the attention of Clovis police.

Officials have charged 31-year-old Dean Young, the owner of a yellow Ford Focus displaying the images, with distribution of sexually oriented materials to minors. The charge is a misdemeanor carrying a maximum punishment of 364 days in jail and $1,000 fine. Young is scheduled to appear in magistrate court on the charges in the next few weeks. . . .

[State prosecutor Chris] Chandler said the case came to light after the young son of Clovis police Detective Kirk Roberts saw the stickers. Roberts saw his son staring at the images during a family outing to an area restaurant, where Young works as a waiter, Chandler said.

Young said he would have removed the stickers if Roberts hadn't threatened to charge him with a felony. He said Roberts told him to remove the stickers, and came back to the restaurant two weeks later. When they weren't removed, police issued the citation to Young, who said Roberts is the first person to approach him with concerns over the stickers. . . .

(Matt Welch (at Reason's Hit & Run) also reports on this.)

Now it turns out that lower courts have mostly upheld against First Amendment challenge fairly narrowly crafted restrictions on the public display, in places where minors may be present, of sexually themed material that's constitutionally protected for adults but that is deemed unsuitable for minors. (See here for citations to some cases.) It's hard to tell which material would be restrictable this way, since the standard is so vague, and since there have been few prosecutions under such statutes and thus little clarification; so it's not clear whether the sticker qualifies. For whatever it's worth, here's the New Mexico standard, which is similar to the one lower courts have generally upheld:

"[H]armful to minors" means that quality of any description of representation, in whatever form, of nudity, sexual conduct, sexual excitement or sado-masochistic abuse, when it: (1) predominantly appeals to the prurient, shameful or morbid interest of minors; and (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and (3) is utterly without redeeming social importance for minors.

("Harmful to minors" is the legal label for this; there doesn't have to be proof that it's actually likely to cause psychological harm.)

But this post isn't about the First Amendment issue, which isn't involved here. Under current First Amendment rules, states can bar such material, and while I think there are problems with this — chiefly related to the vagueness of the law — I don't get too worked up about it.

However, as best I can tell, New Mexico hasn't outlawed what this guy did. The relevant part of the New Mexico statutes (30-37-2) expressly bars (1) "sell[ing], deliver[ing], distribut[ing], display[ing] for sale or provid[ing] to a minor" such material, (2) exhibiting movies or shows containing such material to a minor, (3) disseminating such material to a minor using a computer, or (4) displaying in an outdoors movie theater a movie containing unclothed sexual conduct, if a minor can see it without taking extraordinary measures or having a ticket (in the latter case, presumably the minor would be accompanied by a parent). The statute does not outlaw noncommercial display of such material, which is what Dean Young seems to have done.

The prosecutor's theory is that Young was distributing the material to a minor by displaying it. But that's not the way the term "distributing" is usually meant; would we say that a billboard, a T-shirt, or a sign is being "distributed" to viewers? And on top of that, the statute says "sell[ing], deliver[ing], distribut[ing], display[ing] for sale or provid[ing] to a minor" — the inclusion of "display for sale" as a separate item suggests that display not for sale is not covered.

So maybe there oughtta be a law — but it looks like there isn't one. If anyone who knows New Mexico law can point out errors in my analysis, please let me know. But that's my tentative thinking on this.

A reader writes:

Your "Law Review Lara" series is well-timed for me. I am currently a "staffer" on law review -- cite checking and finishing up a comment (2L). At my school, running for a board position (a 3L position) is optional. . . . My quandary is this: What is the career benefit of a "high board" position?

After following the LR debates and being a staffer, I am not sure I see any. Or at least see any for the majority of us at non-Harvard, Yale, Columbia etc. schools that have no hope of a legal-academic career. Wouldn't a law student be better off getting a job during their third year [externing] for a judge or in [some other] externship? Or doing anything that teaches them about how to be a lawyer rather than doing administrative work for journals that don't appear to be that well put together in the first place.

If you think board positions are valuable, a related question: Is any board position worth taking? There seems to be hierarchy within everything in law and law reviews are no exception. Are regular assistant editor positions viewed differently than editor-in-chief, etc. positions?

These are hard questions, for two reasons. First, there's been little or no systematic study of what benefits one gets from a "high board" position; so everyone's opinion is based on her own experience, which may be highly unrepresentative. (Plus, Law Review Lara was a mid-board assistant managing editor, in charge of proofreading, bluebooking, and coordinating cite-checking; naturally, she thinks this is fascinating and fantastically useful stuff.) Second, as the reader points out, the question is one of opportunity costs: Even if a high board position gives one some advantages, would your time be better spent on something else?

With that, a few tentative thoughts:

1. Law firms are desperate for some tips about how good a lawyer you'll be, so even fine gradations in a hierarchy tend to make a difference to them. They don't care that being a Chief Articles Editor has made you a much better lawyer; but they suspect that it means you were smarter -- or harder-working or more politically savvy, all important factors for a young lawyer -- than the average person who doesn't have that credential. This may or many not apply to specialty journals, which have a reputation as being not terribly selective; but it's likely true for high editorial board positions (Editor-in-Chief, one of the department chiefs, and to a lesser extent one of the department Indians) on the school's main journal.

2. Being on the law review board actually does give you practice in skills that are important for lawyers. Whether you primarily do editing, proofreading, articles selection, or supervision of student Notes, you'll be exposed to a lot of written work, which you'll have to critique or improve. Writing is one of the most important skills a lawyer needs, and we don't teach it nearly enough in law school; editing is the key to good writing; and editing others' work helps you learn how to better edit your own. Being an articles selection editor is probably the least useful here, but the compensation is that you'll then be exposed to lots of novel ideas on a variety of topics, and some of them may well come in handy in the future. (Warning: Others are just plain wrong, and may deceive you more than helping you.)

3. The law review is an extended, cooperative task, and participating in it -- especially as managers, which the editors-in-chief and the department chiefs are -- is important training in dealing with people (and in particular future lawyers). It's not quite like working in a law firm (the money isn't as good, for instance), but it does involve working with lawyers, being responsible for others' work, acting responsibly with your own work, and other things that do help prepare you for the working world. If you haven't had much work experience of that sort, being on a law review board can be useful.

All this having been said, "making law review" -- getting on the journal in the first place, and then working on it for a year as a staffer -- is probably the more important credential than getting a high editorial board position. And, as with many other things, if you expect to dislike the task, don't do it unless you think it will be really helpful. Life is too short to work for nothing on something that leaves you cold and that likely will be at best a moderately helpful credential. But at the same time don't exaggerate the value of, for instance, being a judicial extern during law school; that could be fun, but it's not a terribly helpful credential either. (Being a judicial clerk after law school is a good credential, but being an extern for a semester during law school generally isn't.)

Finally, to answer the last question: The credential value, from highest to lowest, tends to be Editor-in-Chief, department head (Chief Articles Editor, Chief Notes Editor, Chief Managing Editor or Executive Editor), then positions in the departments (Articles Editor, Notes Editor, Book Review Editor, and the like), then the unnamed editorial positions. This is a rough cut, and note that the board structure -- and particularly the position names -- vary from school to school.

In any event, Lara wishes she could have given you a more definite answer; but this is the best she's got. Lara is enabling comments so that others who are knowledgeable -- especially people who are practicing lawyers and are thus on the hiring side -- can speak to this question. (Recall that the question is the educational and credential value of having a high editorial board position, or any editorial board position when the board year is optional, not of being on law review in the first place.)

The remarkable thing about attempts to outlaw anti-gay speech (see the post about Sweden) is that only a few decades ago the orthodox belief throughout much of the West was that homosexuality was so awful that it needed to be outlawed. On this basis, governments (at least in the U.S.) tried to enforce the then-existing orthodoxy by suppressing pro-homosexuality speech. Now, the dominant view, which I share, is that the past perspective was mistaken. And now some governments are trying to enforce the now-existing orthodoxy by suppressing anti-homosexuality speech.

Yet shouldn't our experience of throwing away the formerly unchallenged verities of the past lead us to a bit more skepticism? What if today's elite majority view is wrong: What if it turns out that homosexuality is indeed morally reprehensible, bad for society, or both? I realize that there are good reasons to protect speech even if one is sure that it's mistaken. But if experience suggests that certainties are oftenmistaken, isn't that all the more reason to let speech be protected? And shouldn't the vast changes in formerly orthodox social attitudes over the past half century -- attitudes towards non-whites, towards women, towards gays, and so on -- remind us that a lot less is morally certain than the majority might think?

All this brings us back to Justice Holmes' words in Abrams v. United States (1919), which strike me as right even today:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises.

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country...

Naturally, the Swedes have their own Constitution; but the principle that Holmes articulated is suitable, I think, ought to be adopted in constitutions more generally.

A reader e-mailed to ask how he could put a tip in our tip jar, and I realized that we didn't have one. While we were entirely noncommercial, income would have just caused hassles (I'm thinking blood-covered knives around the monthly Volokh Co-Bloggers Campfire); but now that we've started having ads, shifted to a commercial service provider, and worked out a way of splitting the loot, I thought we might as well make it easy for people to give to us if they want to.

Naturally, you shouldn't feel remotely obligated to. If you're in California or Virginia, you might conclude that you're giving to us enough already by helping pay the UCLA or GMU cobloggers' salary with your tax money. Plus, we're tickled pink that you read us in the first place — your eyeballs are present enough for us.

Nonetheless, if you do want to hit the tip jar, we would naturally be pleased and grateful. Just click on the Amazon Honor System graphic in our right sidebar.

"Latest Bin Laden Videotape Wishes America 'A Crappy Valentine's Day'":

Bin Laden called for "romantic humiliation for all Americans of courting and betrothal age."

"Allah willing, embarrassment and tearful rejection shall rule this day," bin Laden said. "Paper hearts shall be rent and trod upon, and dreams of love delivered stillborn. Body language shall be misinterpreted, crushes unrequited, and sincere expressions of affection mocked. Invitations to dinner will be rejected, just as Americans have rejected Allah, the one true God." . . .

Bin Laden added: "May your special Valentine's Day dinner be spent at an overrated restaurant that impoverishes your purse and leaves your stomach churning with indigestible Western cuisine."

Bin Laden did not overlook the innocuous custom of giving stuffed animals as gifts.

"The teddy bear that holds the 'I love you' heart does not love you at all," Bin Laden said. "It is an unliving, unholy thing filled only with stuffing. Just as the Western infidel is not bestowed with the blessings of Allah, so shall he go unloved by the false bear." . . .

Read the whole thing, as they say.

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!