So it seems, from this news account. "Judge Rayford Means . . . said he factored in McIntosh's important work with stroke victims and brain injuries, and sentenced McIntosh to a year of house arrest and 12 years' probation."

There is some uncertainty about the facts of the case, but the man did plead guilty to sexual assault and possession of a controlled substance (presumably the sodium pentobarbital that the man was accused of slipping the woman to knock her out). Seems quite troubling, if the news account is accurate.

from lawprof Jack Balkin.

in the New Orleans Times-Picayune this morning. (I just love the name "Times-Picayune.")

I've been in New Orleans for a couple of days, by the way, visiting at Tulane Law School, giving several talks and much enjoying the time here (and not just the delicious food!).

A reminder of our linking policy: If you want to send us a post or op-ed of yours that you think we might want to read and link to, please include both (a) the text of the post and (b) the URL of that particular post (also known as a permalink).

When we're working from home, often on slow connections, this makes it much easier for us to read the post -- and thus much likelier that we will read it and consider linking to it.

I suspect that many other bloggers have similar preferences to these. Sorry to be so demanding, but the volume of e-mail that we get has ended up requiring this. Thanks!

Alice, who is in an Atlantic seaboard state (one of the states of the USA, that is) is talking on the phone to Bob, who is in a Pacific seaboard state (again, one of the states of the USA). "What time is there?," Alice says. Bob gives the correct time where he is. "Funny, it's the same time here," says Alice. How is that possible?

Thanks to Warren Usui for the problem.

My post yesterday on harsh ridicule of religion in Australia contained an important error: The law that I criticize is a law in the state of Victoria (home of Melbourne, and roughly a quarter of Australians), not a federal law that covers all Australia. D'oh! My apologies for the error, and my thanks to readers Jarrod Weir and Peter Laverick for setting me straight.

My criticism of the law, however, still stands.

One thing I noticed recently is the increasing sentiment among some American Jews in favor of "hate speech" restrictions, especially given the recent incidents of anti-Semitism at some universities. I just ran into that a couple of days ago on a Jewish academics' discussion list on which I'm a passive reader. The Australian decision that found harsh criticism of Islam illegal should, I think, be a reminder that hate speech bans can bite anyone.

Many people think such laws will ban criticism (which they think is hateful, and much of which may indeed be hateful) of their group. But they quickly discover that the laws easily spread, and soon spread to criticisms that you yourself may want to make — though of course you'll make such criticisms much more fairly and temperately, and naturally you're completely sure that a hostile judiciary will recognize this and find your speech to be different, right?

Justice Douglas put it well when dissenting from Beauharnais v. Illinois, a 1952 case that upheld a law that banned libels of races and religions (and that is fortunately widely believed to have been implicitly overruled):

Today a white man stands convicted for protesting in unseemly language against our decisions invalidating restrictive covenants. Tomorrow a negro will be hailed before a court for denouncing lynch law in heated terms. Farm laborers in the west who compete with field hands drifting up from Mexico; whites who feel the pressure of orientals; a minority which finds employment going to members of the dominant religious group — all of these are caught in the mesh of today’s decision.

Today you may want Aryan racists or Muslim radicals to be convicted for condemning Jews. Tomorrow a Christian will be haled before a court for denouncing Islam in heated terms. The next day someone with perfectly fair and sensible criticisms of Islam will be convicted because his views seem too radical or not sufficiently balanced for the judicial elites of the time.

I think the Supreme Court's decision holding that the death penalty may not be imposed on killers who were 16 or 17 at the time of their crimes was unsound, for the reasons that Orin has noted here, and that Justice Scalia noted in dissent. I'm not sure what I think of the execution of such killers as a policy matter, but I think Justice Scalia is right that this is not unconstitutional.

Nonetheless, I'm not persuaded by the link that some readers have drawn between this and a point in yesterday's post about the killings of Muslim women by their families:

In many cases, fathers -- and sometimes even mothers -- single out their youngest son to do the killing, Boehmecke said, "because they know minors will get lighter sentences from German judges." . . . Currently, six boys are serving time in Berlin's juvenile prison for honor killings.

I think many would-be killers (and those who influence them) may be swayed by the possibility of relatively light sentences, especially if they are just several years (which is my tentative sense from the paragraph above). But I think few would-be killers, especially teenagers, would think "I won't commit this crime if there's a small chance I'll get the death penalty; but I will do it if all it means is that I'll get life without parole." The marginal difference in deterrent, I suspect, is pretty modest there -- whereas the marginal difference between several years in prison and many more years, which it sounds like is the situation in Germany, would be quite substantial.

This is my intuitive sense; I haven't read the studies, about which I hear conflicting things. Nonetheless, it's a pretty strong intuition. I don't think we're going to have many more honor killings (or other killings) by 17-year-olds as a result of this decision.

At the same time, I do agree on one point: I don't think the U.S. Constitution should be interpreted in light of the moral judgments of Germans or Englishmen (or perhaps more precisely the members of German or English legal elites), who may have very different cultural and moral assumptions about the propriety of punishment. That 20 American states endorse something strikes me as more significant for interpreting our Constitution (if present views are to be considered) than 50 to 100 foreign countries' endorsing something. (I say 50 to 100 rather than the full complement of 200+ because 50 to 100 is the upper limit of the number of countries that are democratic enough that we should see their "views" as anything other than the political judgments of the strongmen or cliques that run them.)

This article on "honor killings" of Muslim women -- in Germany -- is generally shocking. There are many important points there, for instance:

One of the unsettling truths about Hatin's death and the plight of many Muslim women is that it took the comments of three Turkish boys and the outrage of a male school director to get people to notice. When the murder first happened, it sent no shock waves through the mainstream German press. It only became big news when a group of 14-year-old Turkish boys mocked Hatin during a class discussion at a school near the crime scene. One boy said, "She only had herself to blame," while another insisted, "She deserved what she got. The whore lived like a German." The enraged school director not only sent a letter home to parents, but also to teachers across Germany. The letter ignited a media fury. Less known, however, is that the letter also hit a nerve among educators. "Teachers from across the country wrote back saying they had had similar experiences," Boehmecke said. They reported Turkish boys taunting Turkish girls who don't wear headscarves as "German sluts." . . .

"People were afraid they would be called Nazis if they dared to bring up issues of human rights in the Turkish community," said Serap Cileli, a Turkish author and filmmaker who at 15 was forced into an arranged marriage. . . . She has written prodigiously about her experiences and now helps Turkish women escape oppressive families. For the greater part of a decade, however, Cileli was unable to find a publisher for her work. "Everything I wrote from 1994 to 1999 was rejected, even by newspapers," she said. "They told me I was writing about a minority issue and they were afraid of appearing racist." . . .

But this paragraph struck me as particularly troubling (thanks to InstaPundit for the pointer) -- "demented" (from the quote below) and "death cult" (from the comments of others) are apt terms:

In many cases, fathers -- and sometimes even mothers -- single out their youngest son to do the killing, Boehmecke said, "because they know minors will get lighter sentences from German judges." In some cases, these boys are revered by their community and fellow inmates as "honor heroes" -- a dementedly skewed status they carry with them for the rest of their lives. Currently, six boys are serving time in Berlin's juvenile prison for honor killings. "In a way, these boys are victims, too," she said. Sometimes they are forced to kill their favorite sister.

I mention below that state courts may read Bill of Rights provisions differently than the analogous federal provision is read. Sometimes the text clearly mandates this, in which case I take it that many advocates of judicial restraint wouldn't object. For instance, many state right to bear arms provisions explicitly secure an individual right to have arms for self-defense; whatever you think of the proper interpretation of the Second Amendment, state courts have to interpret those provisions as barring at least some gun controls. Likewise, some states, including California and Florida, have an expressly secured "right to privacy"; one may debate what that should mean, but one can't complain that the judges who enforce such a right to privacy under the state constitution are just making it up.

But what if the text is vague or ambiguous? Should people who fault the U.S. Supreme Court for reading federal Bill of Rights provisions too broadly -- especially when they strike down legislative enactments -- do the same as to the state supreme courts reading state Bill of Rights provisions too broadly?

The answer could of course be yes: One could argue that such state decisions illegitimately interfere with the democratic will, as expressed by the state legislature. One could also argue that such different interpretations may cause some confusion, and one could appeal to the U.S. Supreme Court's authority to argue that the state court's decision intepreting similar constitutional language is mistaken. (As I note below, state courts are legally entitled to interpret state provisions differently from similarly worded federal provisions, but critics may argue that those interpretations are erroneous, and may call on the U.S. Supreme Court Justices' authority to buttress those arguments.)

But here are three reasons why we should be less worried about state judges' broad readings of vague or ambiguous constitutional language -- I'm not saying "not worried at all," since some such readings may still be viewed as wrong for various reasons, but less worried, for instance if the case is close and there's a plausible argument that the state constitutional provision should indeed be read to restrict the state legislature:

1. We often hear complaints about unelected judges imposing their views on the democratic process. But in many states (most, I think), state supreme court judges are elected, and can be voted out of office (though that rarely happens, and sometimes the system is set up to minimize the chances of that, for instance by barring contested races and only providing for a Yes or No vote, as in California). They may not be elected on a platform of imposing their own views on the law; but their election -- and possibility of electoral removal -- does, I think, give their decisions more democratic legitimacy.

2. We also sometimes hear complaints about a state's law being invalidated by the will of those nine Justices in Washington, who may have very different views than the state's residents do. This cultural disconnect argument is a harder (though not impossible) argument to make against state supreme court Justices.

3. A related argument is that when the U.S. Supreme Court invalidates a state law on Bill of Rights grounds, it sets the law in stone for the 50 states, and prevents useful state-by-state experimentation (with innovative police procedures, for instances). This argument doesn't apply to state supreme court decisions.

4. Federal constitutional decisions are very hard to dislodge through the democratic process -- it (usually) takes a 2/3 vote in each house of Congress, and then the votes of 3/4 of the state legislatures. But state constitutional decisions can often be changed by a simple majority vote of the people (though that varies from state to state) preceded by a vote of the state Legislature (though sometimes that has to be a supermajority, or two successive majorities in successive sessions) or a citizens' petition with a suitable number of signatures. So if the state supreme court interprets a provision in a way that the people dislike, they can change it with less difficulty than they can as to the federal constitution.

Again, one can surely criticize state court decisions on various grounds, for instance that they are illogical, or inconsistent with the provision's text, original meaning, or historical interpretation. I have, for instance, criticized a Nevada Supreme Court's state constitutional decision related to taxes, and I don't agree with the Massachusetts Supreme Judicial Court's same-sex marriage decision, just to give two examples. And one even when the text is vague or ambiguous, one can argue that state courts should err on the side of giving the legislature more flexibility. But I do think that the four points cited above make this latter argument less persuasive (though don't by any means entirely defeat it) as to state constitutional decisions than it is as to federal constitutional decisions.

Reader Robert Woolley writes:

Why did the Missouri Supreme Court, in the juvenile death-penalty case (State ex rel. Simmons v. Roper (112 S.W.3d 397)), invoke the federal 8th amendment, rather than using Missouri's own state constitutional provision of the same language?

The Missouri justices had to go through pages of rhetoric to explain its justification for concluding that the US Supreme Court "would" now overrule its own 1989 Stanford precedent. They happen to have guessed correctly, as it turned out, but I can't figure out why they did it that way. It seems like a politically and legally risky move, virtually inviting reversal, if they have guessed the higher court's mood incorrectly. And whether they guessed right or now, they were pretty clearly violating principles of how precedent should work. But had they decided the case on the Missouri constitution, the decision would be essentially immune from reversal by any federal court. The Missouri court clearly had that option, as evidenced by this footnote [20:] "Because the Eighth and Fourteenth Amendments afford Mr. Simmons relief, this Court need not reach Mr. Simmons' alternative argument that, even if his execution is not barred by the Eighth Amendment, it is barred by article 1, section 21 of the Missouri Constitution." In the face of a fairly recent, directly contradictory holding of the supreme court, why take the uphill, against-the-wind path, when they could by fiat interpret the state constitution to achieve the desired result, and be done with it, with much less hand-waving justification needed, and no chance of reversal?

I had the same question myself.

First, a bit of background: Recall that there are 51 Constitutions in the U.S. — one federal and 50 state (I set aside D.C. and the Territories). Each of them has a Bill of Rights.

When a state government is dealing with its citizens, it must follow both the federal Constitution and the state Constitution. It follows that the person litigating against the state can win if he can prevail under either the federal or the state provision. And state courts may interpret provisions of the state Bill of Rights more protectively than courts have interpreted the federal Bill of Rights, either because the provision's text or history is different, or just because they think the federal provision has been interpreted incorrectly, and they don't want to perpetuate that error in reading the state constitution.

What's more, the state's highest court (usually but not always called the state Supreme Court) is the ultimate expositor of the meaning of the state constitution. The U.S. Supreme Court may not reverse the state court's judgment on that question — it may not say "Well, you think your state constitution's Cruel and Unusual Punishment Clause means one thing, but we disagree, and we're higher than you are." As to the meaning of state constitutional provisions (and state statutes), the U.S. Supreme Court is not higher than the state supreme court; the U.S. Supreme Court may reverse state decisions when they violate someone else's federally secured rights, but not just because the Court disagrees with the interpretation of state law. In fact, many states have read state free speech provisions, freedom from search and seizure provisions, right to bear arms provisions, non-impairment of contracts provisions, and other provisions more broadly than similar federal provisions have been read.

With that background, on to the reader's question. I have two guesses (assuming that the state constitutional claim wasn't foreclosed either by the litigant's failure to properly raise it or by contrary state precedent — a fair assumption given the note the reader quotes):

1. The Missouri Justices wanted to insulate their decision from revision by a state constitutional amendment. State voters can pretty easily revise state constitutional decisions, by simply enacting an amendment that modifies the underlying clause, for instance to say that "however, an execution shall not be considered Cruel or Unusual Punishment on the grounds of the person's age, if his or her age is 16 or above." The amendment wouldn't change the result in Simmons' case, but it would change the result for the future. Such amendments often (I don't know the Missouri rule) just require a majority vote of the voting public, and a majority in the state legislature (or some number of signatures from the public instead of the legislative majority).

2. The Missouri Justices wanted to prompt the Court to revisit the case. Then, if the Court affirmed (as it did), they would have helped make a national rule. And if the Court reversed, then they might have been able to decide based on the Missouri Constitution on remand (though then their decision might be even less popular with Missouri voters, if Missouri voters worry about such things, because it would be a departure from an influential institution's very recently expressed views, not just the views that institution expressed a decade ago).

It's also possible that the Missouri Justices just turned to the federal constitution out of force of habit. Many lawyers don't think of raising state constitutional arguments — something I try to remedy for the future in my constitutional law classes — and some state supreme court Justices might have a similar mindset. But I doubt it; here it's pretty obvious that the Missouri Justices at least knew of the option. (If Missouri courts have recently done a good deal of state constitutional law, something that I don't know, then it would be even less plausible that they turned to the federal question reflexively.)

No, not by the mullahs; not by Ashcroft; rather, by the Parliament. of Victoria, the Australian state that's home of Melbourne and a quarter of all Australians. The Victoria Racial and Religious Tolerance Act of 2001 provides that "A person must not, on the ground of the religious belief or activity of another person or class of persons engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons."

There's a defense for people who, among other things, are "reasonably and in good faith" engaging in "genuine academic, artistic, religious or scientific" commentary, or otherwise acting "in the public interest." But the Victorian Civil and Administrative Tribunal held two months ago that this defense is available only to those who speak "reasonabl[y]" and who "honestly and conscientiously endeavour to have regard to and minimise the harm [the speech] . . . will . . . inflict," as opposed to "us[ing the freedom of speech] as a cover to offend, insult, humiliate or intimidate people."

Among other things, speech that isn't "a fair representation of [another group's] religious beliefs" is punishable, as is speech that fails to "distinguish between moderate and extremist" members of a religion. Likewise, the tribunal seemed particularly troubled by speech that "mock[s] what [members of a religious group believe," or "repeatly invoke[s] laughter from the audience when describing apparent [religious] beliefs." (Naturally, the decision and the statute give little guidance as to what exactly you can say in order that your comments be found "reasonable" and "fair.") The decision (Islamic Council of Victoria v Catch the Fire Ministries Inc) held some Christian speakers liable for harshly criticizing and mocking Islam — among other things, saying "that the Qur'an promotes violence, killing and looting," "that it treats women badly," "that Allah is not merciful and a thief's hand is cut off for stealing," and more. But of course, if the law is applied evenhandedly, it would equally apply to atheists criticizing religious people generally (think "religion is the opium of the masses" but with some more elaboration), or at least members of a particular religion. It would apply to people criticizing Catholicism for its supposed oppression of women or historical crimes. It would apply to people mocking beliefs like those of Catch the Fire Ministries, or harshly criticizing the Falwells and the Robertsons.

This is an awful position for a democracy to take. Religions are ideologies, and need to be subject to criticism like any other ideology — especially when the religions are motive forces for important political and moral movements. Some of this criticism will involve mockery, laughter, and severe ridicule; and ridiculing religious ideologies will naturally implicitly or explicitly ridicule people who hold those views, especially when the speaker gives examples of folly that the ideology supposedly causes. Yet if you take religion seriously, as a set of ideas that, if true, should affect people's lives, you have to accept the possibility that some religious ideas are false and harmful, and deserve harsh criticism and not just bland ecumenical toleration.

I would prefer that such criticisms be fair, polite, and measured; but it's impossible for the law to punish only the rude and excessive form without also punishing and deterring important content. John Stuart Mill dealt with all this a century and a half ago, and his position is as sound today as it was then.

In any event, this is just another reminder to be cautious about proposals to create a new "hate speech" exception in U.S. constitutional law, by replacing the supposed excessive rigidity of modern First Amendment law with a more balanced and nuanced approach. Seems to me that our rigidity on this score is far superior to Euro-Canado-Australian flexibility.

UPDATE: My original post erroneously said that the law was enacted by the Australian Parliament; it turns out that it is a state law, which covers only the state of Victoria. Thanks to readers Jarrod Weir and Peter Laverick for correcting me.

A recent edit that I got from a law review reminded me that not everyone knows the distinction between these two.

"E.g." means "for example"; it's short for the Latin exempli gratia. "I.e." means "that is" or "that is to say"; it's short for the Latin id est.

So you might say, for instance "European countries (e.g., France and Germany)" but "Benelux countries (i.e., Belgium, Netherlands, and Luxembourg)." Or you might stick with the purely English equivalents, though "e.g." at least is common enough that people should get it from context, and also has the merit of brevity.

UPDATE: Reader Ken White reminds me about this exchange from Get Shorty:

Ray "Bones" Barboni: Let me explain something to you. Momo is dead. Which means everything he had now belongs to Jimmy Cap, including you. Which also means, when I speak, I speak for Jimmy. E.g., from now on, you start showing me the proper fuckin' respect.

Chili Palmer: "E.g." means "for example". What I think you want to use is "i.e."

Ray "Bones" Barboni: Bullshit! That's short for "ergo."

Chili Palmer: Ask your man.

Bodyguard: To the best of my knowledge, "e.g." means "for example."

Ray "Bones" Barboni: "E.g., i.e., fuck you! The point is this: When I say "jump", you say "OK", okay?

So I'm going to try my hand at some Volokh Conspiracy designs -- I'll probably pick a few that sound promising and provide them as options. Have it your way, that's our slogan here at The Volokh Conspiracy, though for intellectual property reasons we probably won't use that one on the T-shirts.

But the question: What service to use? I'd heard good things about CafePress, but then ran across some negative reviews (first in a comment on the Paraphernalia post, and then in some comments I found online). Zazzle sounds like an alternative, but I've only heard a little about them. I'm not looking for a place that will do the design; I'm planning on having something pretty simple, so I can do it myself. I'm looking for something that will take orders, create the goods, and ship them.

The priorities:

1. High-quality stuff, not cheapo iron-ons that will crack or peel after a few washings.

2. As low a price as possible, given constraint #1.

3. Good customer service for buyers.

4. Ease of use for me (so for instance having all the products on one service is better than splitting among two).

5. No or low cost for us.

6. Variety of products -- for instance, polo shirts as well as T-shirts, coffee mugs and mousepads as well as clothes, and the like.

7. Whatever else I'm forgetting, though that might have to be a higher priority.

Any suggestions? Please post them in the comments, since I think other readers might be looking for similar information, for their blogs, for their other projects, or just for something noncommercial for themselves and friends.

here's a sweet and interesting obituary -- with a personal touch -- for Eleanor Gould, the New Yorker's Grammarian. Thanks to reader Michael Greenspan for the pointer.