One reader writes, apropos my defense of the ACLU against charges of "frivolous" and "criminal" litigation:

If the ACLU is successful in their New York subway suit, we all lose our most basic freedom -- not to be killed by a bomb. If they are successful, it will be the end of riding on the subway (following a successful train bombing in the USA).

I usually agree with Eugene but in this case I think he has lost his usual common sense and is thinking only of the legal technicalities.

Distinguishing fair criticisms of one's adversaries from unfair criticisms is not a technicality. I've seen lots of people, left, right, or elsewhere, make the same mistake: Just because they think their adversaries are wrong in one way (e.g., propose an unsound view of the Constitution), they feel free to just throw a barrage of epithets at them -- their arguments are criminal, frivolous, pro-terrorist, dishonest, corrupt, Nazi, or what have you. And then, when a third party defends the targets against the unfair criticisms, the critics seem upset. How can you defend these bad people? They're clearly wrong!

Well, that our adversaries are wrong doesn't justify our making wrong (and unfair) arguments ourselves. Consider the message I quote above: My correspondent is complaining about what would happen if the ACLU is successful in their suit. That is flatly inconsistent with the argument that the ACLU's position is "frivolous." (To be frivolous, a legal position has to be not just a loser, but such a sure loser that it can't be justified as a good faith attempt to change the law.) If the ACLU's positions were really frivolous -- which is the supposed essence of the Christians Reviving America's Value call for "the US Congress to investigate the ACLU for widespread use of frivolous lawsuits" -- then why worry about the ACLU's lawsuit being successful?

If you think the ACLU's legal position is mistaken, explain why you think it's mistaken. Labeling that position with epithets that it doesn't deserve is, I think, on balance ineffective, since it undermines your own credibility. But effective or not, it's just wrong.

One commenter on my earlier ACLU post writes:

The ACLU may not be a criminal organization but it is certainly dishonest. It is not looking out for the interests of Americans, just a select group of Americans. The ACLU stood silent through decades of speech codes and 'verbal harassment' regulations on American campuses, all aimed toward non-liberal voices. It supports gender and racial discrimination, including outright quota systems. It excuses violations of the Constitution against non preferred groups while pretending to protect everyone's rights.

First, while I strongly disagree with the ACLU's position favoring race and sex preferences, I don't think this position is dishonest. There's a perfectly credible argument that discrimination against historically disfavored groups should be judged under a different constitutional rule than discrimination against historically favored groups. Again, I think this argument is mistaken, but reasonable minds can surely differ about this -- and one can certainly look out for the interests of Americans generally (for instance, as to the Fourth Amendment, Sixth Amendment, and the like) and yet take the view that discrimination against some groups is worse than discrimination against others. The ACLU is wrong here, but not dishonest.

Second, the ACLU most certainly did not stand silent as to campus speech codes. In Iota Xi v. GMU, the first federal court of appeals case striking down college speech codes (in 1993), the ACLU of Virginia filed an amicus brief in favor of the plaintiffs, who were punished for putting on a skit in blackface. According to a Nat Hentoff column -- and Hentoff has long been a vocal opponent of speech codes -- the two earlier district court cases that ultimately struck down campus speech codes, in Michigan and in Wisconsin, were filed by local ACLU affiliates.

In Newsom v. Albemarle County School Bd., a 2003 court of appeals, the ACLU backed a high school student's right to wear an NRA T-shirt (surely a "non-liberal voice[]"). For another recent example of an ACLU chapter's interceding on behalf of allegedly racially offensive speakers, see here. And the national ACLU's 1994 position statement on the subject condemns campus speech codes; I believe the national ACLU's anti-speech-code policy was adopted in 1991 (though there was a good deal of dissent within the ACLU about it, especially, I'm told, in the California chapters).

One can (and, in my view, often should) disagree with the ACLU's substantive positions. One can criticize them as dishonest, if one can really point to actual dishonesty, rather than just substantive disagreement. But if one is to criticize them, one should first make sure that one's own arguments are factually accurate.

Thoughtful and well-written, as is characteristic of Jonathan's work.

My friend and colleague (and fellow Kozinski clerk) Victor Fleischer (Conglomerate) writes (see the post itself for links):

Paul Caron points me to S.1507, a Senate bill that would impose a 25% excise tax on Internet porn.

Is it good policy? I'm sure my libertarian friends will freak out, but the policy doesn't sound so bad to me. The bill is premised on the notion that teenagers are heavy consumers of internet pornography, and teenagers and younger children are often victims of the industry. These are unfortunate negative externalities of the product, and taxing a harmful product is one way to reach a socially optimal outcome without having to regulate the activity out of existence. Funds generated by the tax will go to things like a cyber-tip line and a task force to investigate internet-related crimes against children.

Complicating matters is the bill's questionable constitutionality. The Supreme Court has not been friendly to Congressional attempts to regulate internet porn. And the Supreme Court has, in the past, struck down taxes that differentially burdened constitutionally protected speech. See Minneapolis Star v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983). Still, the tax here seems targeted at addressing the negative externalities caused by the activity, not at stifling the speech for the sake of stifling speech. It probably helps that the funding is mostly earmarked for law enforcement activities, not general revenue. What's not at all clear is how Congress came up with the number of 25% and whether this bears some reasonable relation to the externalities caused by the activity. It is an excise tax based on revenue, and surely if the number were 100% the Court would strike down the bill as an unconstitutional restriction of protected speech. I don't know enough First Amendment jurisprudence to know how hard the Court will scrutinize the reasonableness of the tax and how it is targeted, and my semi-educated guess is that the tax would survive scrutiny, but it seems likely that an Internet Porn tax will be subject to judicial scrutiny in a way that a fat tax would not be.

Of course, this being Congress, there's some question whether dedicating funds to cyber-tip lines, etc. is mainly for show. The wheels start to fall of the wagon as you move further down the bill. The tax will generate a lot of money, and perhaps the bill's drafters were struggling to figure out where to send remaining funds. Section 212(a)(6)(A), after moving down the cascade of recipients past law enforcement, R&D (to develop better filtering software) and educational training, includes the following provision:

(A) FEDERAL AGENCY SUPPORT- 50 percent of remaining amounts shall be used to provide funding to support child Internet safety activities, as well as activities combating sex trafficking and sex crimes against children, on the part of the following Federal agencies:

(i) Department of Justice.
(ii) Department of Commerce.
(iii) Department of Defense.
. . . (xiii) National Aeronautics and Space Administration.

Yes, to protect children from sex crimes and sex trafficking, let's get NASA on the case. We all know what happened when Cartman was abducted by space aliens, and your child could be next.

I'll take up Victor's First Amendment invitation: The law seems probably, though not certainly unconstitutional. Content-based taxes on the sale of First-Amendment-protected materials (and recall that the law targets not just unprotected and illegal obscenity, but also constitutionally protected pornography) are generally forbidden, see Arkansas Writers' Project v. Ragland (1987).

Nor does it matter whether the government is trying to "address[] the negative externalities caused by the activity," as opposed to "stifling the speech for the sake of stifling speech." I don't think this sort of motivational distinction really works: Most times that the government seeks to "stifl[e] speech," it does so precisely because it sees speech as causing "negative externalities"; the two motivations aren't antonyms. And (perhaps because of this) the Court has specifically held that unconstitutional discrimination "can be established even where, as here, there is no evidence of an improper censorial motive. . . . Illicit legislative intent is not the sine qua non of a violation of the First Amendment."

Content-based taxes, like other content-based restriction, can generally be upheld only if the government can show that the law is necessary to serve a compelling government interest. But even if the interest in raising money to fight the allegedly harmful effects of Internet pornography (I take no position here on whether Internet porn is in fact substantially harmful) is compelling, it's pretty clear that content-based taxes aren't necessary to serve that interest; taxes that are unrelated to speech would do the job just as well.

The strongest defense of the tax would be that pornography, including constitutionally protected pornography, is different: Though it has some constitutional value, it's of lower value, and may therefore be more broadly restricted. The Court has seemingly adopted this view in some of its "erogenous zoning" cases and broadcast regulation cases.

Nonetheless, the Court has at other times disapproved of this "low-value speech" position; and more recently it has generally judged content-based regulations of nonobscene pornography pretty much as it has judged content-based regulations of fully protected speech. My guess, then, is that if the law is eancted, both lower courts and (if it comes to this) the Supreme Court will ultimately strike this tax down just as they would other content-based taxes.

I have many differences with the ACLU, but I find many of the attacks on the ACLU to be quite reprehensible. Consider, for instance, the following from the Stop the ACLU blog, quoting a letter from another group:

Yesterday the ACLU announced that they would be suing the city of New York for violating the rights of American citizens who use the public subways because they are subject to random searches. Whether you agree or disagree with the random searches, we all know they are intended for our security in a dangerous time. They are intended as a plan to thwart terrorists and protect Americans from harm.

Don Swarthout, President, Christians Reviving America’s Values, is releasing the following response:

“If the ACLU wins this battle in court they will receive a very large financial boost as they have from similar ‘victories’ in San Diego, Alabama and Virginia. When the ACLU wins their attorneys are paid hundreds of thousands of dollars by tax-payers.

“The never ceasing flow of litigation against cities, states, and the federal government is nothing more than fund-raising stunts. Many of the ACLU’s victories come not because their complaint is just, but because the municipality budget is inadequate to match the abusive onslaught.

“In New York, apparently the ACLU believes these searches are unconstitutional because they are random. Although the ACLU has also called metal detectors in airports an invasion of privacy. There is no pleasing the ACLU, because improving society or protecting the rights of American citizens is no longer its goal.

“Now the ACLU is coming against the Constitutional duty of the United States government which requires the protection of citizens. What is in question here is the definition of freedom. Freedom comes with responsibility. The ACLU has become an anti-Christian, pro-terrorist, entity whose only goal is to get the headlines to keep donations rolling in.

“The ACLU’s abuse of the legal system is criminal. For that reason Christians Reviving America’s Values is drafting a letter asking the US Congress to investigate the ACLU for widespread use of frivolous lawsuits. In the case of the New York lawsuit, the ACLU’s actions may also be dangerous to the citizens of New York City.”

I called Mr. Swarthout on the phone and I have full permission to reprint his statement here. He said he has come across our site when he was doing research a few times, and that he really appreciates what we are doing. Mr. Swarthout, we really appreciate what you are doing too. If people don’t wake up, this trojan horse named the ACLU may just destroy us from within. They consistently defend our enemies, and fight against our efforts to fight them. ACLU, root for the good guys for a change!

We wish Mr. Swarthout the best of luck in this letter to Congress. We hope it is successful, and that Congress will listen. And for those who want to defend the ACLU on this action…just remember…and if they are successful, and one day these terrorists blow up a few thousand in a subway, you will be able to thank the ACLU.

By filing lawsuits, the ACLU is exercising its (and its clients') legal rights and its (and its clients') constitutional rights: The Petition Clause, which protects the right to petition courts for redress of what one perceives as grievances. One may disagree with them. One may try to change the legal doctrines under which they're suing (by Congressional action, by persuading the courts to change the constitutional rules, or for that matter by constitutional amendment) to keep the ACLU from willing. One may call for changes to statutes that give prevailing plaintiffs in some civil rights actions the right to recover attorneys' fees, though I'm skeptical about that. But there's nothing remotely "criminal" about the ACLU's actions.

Filing an outright frivolous complaint -- which is to say one that is not "warranted by existing law or by a nonfrivolous [i.e., legally plausible] argument for the extension, modification, or reversal of existing law or the establishment of new law" -- is punishable. One can already get sanctions for the filing of such frivolous complaints. But I know of no systematic pattern of the ACLU's filing such frivolous complaints.

In fact, my sense is that most of the criticism that the ACLU faces comes because their arguments are too successful -- not only nonfrivolous, but actually ones that win in court. If the ACLU only filed complaints that were such clear losers to be frivolous, they wouldn't much bother people: At most, they'd waste some government lawyers' time, but since government entities tend to have lawyers on salary (and generally not very high salary), they wouldn't even waste much government money. In those frivolous cases, the government would fight the ACLU, win (by definition, since if the government lost, the case wouldn't be frivolous), and even get sanctions against the ACLU.

But in fact the ACLU often wins, and even when it doesn't, its arguments are generally quite plausible. For instance, the claim that random searches of people in subways are unconstitutional is an eminently plausible Fourth Amendment claim, perhaps even a winning one. Searches that aren't based on any individualized suspicion are usually unconstitutional; even some conservative Justices have said so. (See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (Thomas, J., dissenting) ("I rather doubt that the Framers of the Fourth Amendment would have considered 'reasonable' a program of indiscriminate stops of individuals not suspected of wrongdoing."); Minnesota v. Dickerson, 508 U.S. 366 (1993) (Scalia, J., concurring) (expressing "doubt" as to whether even suspicion-based searches for weapons are constitutional, unless the suspicion rises to the relatively high level of "probable cause": "I frankly doubt, moreover, whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity").

There are some exceptions, including one for airport searches. Perhaps courts should extend this exception to subway searches, especially aimed at finding bombs. But given the current law, the ACLU's argument is eminently credible.

If you don't like the Fourth Amendment rules that make it possible for the ACLU to sue, fault the Justices who have developed those rules. (In some situations, fault the Framers for setting up the constitutional provisions based on which these rules have been developed; while the Fourth Amendment's ban on unreasonable searches doesn't clearly prohibit the New York searches, it doesn't clearly authorize them, either.) Or fault the Framers for maintaining the English system of justice, in which people have legal rights against the government, and are entitled to go to court to vindicate those rights, even when the majority believes (for good reason or bad) that the rights are dangerous to the common good. Or perhaps, at most, argue that while the ACLU has a legal right to do what it's doing, it ought to (presumably in highly unusual circumstances) refrain from exercising its rights.

But stop calling them "criminal" for exercising their constitutional rights. Stop calling their lawsuits "frivolous" when the lawsuits bother you precisely because they may well prevail. Stop calling them "pro-terrorist" when there's absolutely no reason to think that they indeed favor terrorism, and lots of reason to think that they favor (whether soundly or misguidedly) legal rules -- such as limits on government power to search -- that unfortunately sometimes protect terrorists while at the same time protecting law-abiding citizens. (It's far from clear to me that random searches are going to do much good at stopping suicide bombers, or that bans on random searches will help terrorists; but I acknowledge that some constitutional rules that the ACLU defends do at times protect terrorists as well as protecting law-abiding citizens.)

What is in question here, indeed, is "the definition of freedom." There is lots of room for good faith disagreement about the scope of our freedoms. But that some people have a broader view than you do -- whether it relates to the right to bear arms, the right to be free from unreasonable searches and seizures, the right to counsel, the right to spend one's money for political causes -- doesn't make them criminals, doesn't make them pro-criminal or pro-terrorist, and doesn't make their arguments frivolous.

My colleague Ken Karst -- one of the nation's foremost constitutional scholars, a solid liberal, and as it happens my free speech law teacher -- e-mailed this to some colleagues; I asked him whether I could blog it, and he graciously agreed:

From: Karst, Kenneth
Sent: Friday, August 05, 2005 8:57 AM
To: . . .
Subject: FW: Judge Roberts

In case anyone cares, here's a note I sent in response to a query from a member of the ABA's committee on the federal judiciary. Think of this as a one-time mini-blog.

Ken

-----Original Message-----
From: Karst, Kenneth
Sent: Friday, August 05, 2005 8:37 AM
To: . . .
Subject: Judge Roberts

Dear Mr. Marshall,

Thanks for your letter asking for my views on the nomination of Judge Roberts to the Supreme Court. Alas, I have nothing useful to say about his history. I don't know Judge Roberts, nor have I seen him in action as an attorney or a judge. All I know about him, I have read in the press.

However, ignorance rarely prevents one from having a view, and I do have one. I am one of those liberal law academics whom Justice Scalia sometimes blames for the Supreme Court's straying from the True Path. Even so, I believe the Senate should confirm Judge Roberts's nomination. By all accounts, he is a first-rate lawyer, who listens carefully to arguments, even when they go against his initial inclinations. He seems to me to be a true conservative, who sees the judicial role as one in which courts conserve. I don't expect to agree with all his decisions, even on matters of intense controversy. I should compare him to the second Justice Harlan--with whom I often disagreed, but whom I still consider an excellent Justice.

Even though I have nothing to offer except opinion, I am grateful that you had me on your list, and I wish you and your ABA colleagues well in your deliberations.

Sincerely,

Ken Karst

Thanks to GeekPress for the pointer.

From his Blue Mass. Group site (blue to reflect his Democratic colors):

The LA Times reports today that Supreme Court nominee John Roberts gave substantial behind-the-scenes assistance, pro bono, to the activists who asked the Supreme Court to overturn Colorado's infamous "Amendment 2," which prohibited municipalities in Colorado from adopting any gay-friendly ordinances or policies. . . .

What to make of this? Is Roberts a clandestine agent of the dreaded "homosexual agenda"? Is he, in fact, secretly gay? (Perhaps that would explain his son's controversial pastel clothing?)

Maybe. But more likely, he was doing his job. A partner at Roberts's firm was working with the plaintiffs in Romer; the partner asked for Roberts's help (Roberts was, after all, the firm's best Supreme Court lawyer), and Roberts agreed. And having agreed, he gave it his all, reviewing briefs, preparing the lawyers for oral argument, and generally being "terrifically helpful." That is exactly what lawyers are supposed to do.

This is, in other words, an excellent illustration of how difficult it is to discern a lawyer's views from his professional activities. . . .

I will say this, though. It is of course always open to a lawyer to decline to participate in a case because for whatever reason the lawyer cannot in good conscience represent the client's interests in that case. The fact that Roberts agreed to participate in Romer at least suggests that he was not viscerally, fundamentally opposed to the pro-gay rights result that the plaintiffs sought in that case. . . .

More at David's site.

(a phrase that seems almost sacrilegious in the U.S., but that describes a common phemonenon, I'm told, in English newspapers): Eric Muller points to a good one, with an interesting anecdote about law, marijuana, and more.

The recent discovery of another Pluto-sized object orbiting the Sun brings up the question: Is Pluto even a Real Planet, in which case this new one has a similar claim to planethood (planetosity?), or is it merely one of thousands of minor-planet poor stepchildren of the solar system? And this brings up one of my favorite arguments on the subject, which I noted in 2002:

ALWAYS A PLANET TO ME (to the tune of Billy Joel's "She's Always A Woman to Me")

He can orbit the sun, he can look like a moon
He can leave the ecliptic from April to June
He'll be just a faint smudge, magnitude twenty-three
He hides in the sky, but he's always a planet to me

Ohhh...a potato-shaped ball...
He can drift where he wants
He's a relic of time
Ohhh...if he's made of pure ice
Or of vapor and dust
It's the same to my mind

If he zooms in near us, would he show us a tail?
Was the Kuiper Belt once the great home whence he sailed?
And if he gets demoted, who'll be next, Mercury?
And the most he can do is cast shadows, it's true
But he's always a planet to me

[Attributed to Steven DeRose, Chief Scientist, Brown Univ. Scholarly Technology Group; if anyone has reason to doubt this attribution, and can suggest a more accurate one, please let me know.]

I've been thinking of a particular kind of pun, which I can best describe using the quintessential example:

Have you heard? The Pillsbury Doughboy died. [Oh, how sad! How?] Yeast infection.

For want of a better term, I therefore call them "doughboys." The other example I know of is:

Have you heard? Cap'n Crunch died. [Oh, how sad! How?] Cereal killer.

No, I'm not claiming this is a high art form -- but I thought I'd open up the comments for people to add others. Remember, the goal isn't to mock someone (no matter how much they deserve it); it's just a pun, preferably a slightly absurdist one.

Another very amusing column by Cathy Seipp about my town's dysfunctional signature industry. It closes with this funny story:

Screaming actors, it seems, can be easier to deal with, perhaps because they are not always famous for their brains. Many years ago, I read a story about how Roger Moore (a nonscreamer) took a younger actor aside and suggested he stop attacking everyone on the set. “I'm not in this business to win a popularity contest,” the screamer fumed. “I just want to be a good actor.”

“Well, you've failed at being a good actor,” Moore replied reasonably. “Why not try for the popularity contest?”

Professor Bainbridge has a thoughtful post on Justices' religious faith and their legal decisions.

The New York Times Fashion section ran an opinion piece Sunday titled "Longing for a Cuss-Free Zone." Now I don't like profanity in conversation, though I have nothing against it in fiction or in humor. (I often much enjoy off-color jokes, if they're funny, and don't find that the profanity makes them inherently less -- or more -- funny.) But one thing I found interesting about the article is that it didn't really explain why the author longs for a cuss-free zone, or why we should.

So what exactly is wrong with profanity? Let's focus for now on "fuck," "shit," and the like, and set aside both insults and relatively light profanity (such as "damn" and "hell," which are at least pretty light in my big city secular circles); let's also set aside any legal questions about when such speech should be constitutionally protected. Why do I get annoyed -- not tremendously annoyed, but still annoyed -- by hearing a lot of it? Should I be annoyed?

One possible answer is that we shouldn't be annoyed by it. Perhaps we should teach our children not to use it, the theory would go, but only because other people are annoyed by it. Under this theory, the decision to use or not use profanity has become a shibboleth, much like whether one uses "ain't": By listening to whether a person uses profanity you might learn a bit about his social class or his affinity group, and you might want your children to signal membership in a particular class or group. Yet I don't think that's all there is to it.

Likewise, some people suggest that we disapprove of profanity just because we're too Puritanical; if only we realized that there was nothing wrong with sex, or for that matter with excretion, then we wouldn't view "fuck" or "shit" as bad at all.

Another possible answer, which I've heard from some people, is that use of profanity reveals lack of creativity or inarticulateness: If every other word from your mouth is "fucking," that shows that you don't know how to speak in a more interesting and precise way. But I don't think that's right; people's reaction to people who use profanity is quite different (and usually more negative) than their reaction to people who simply speak monotonously, or to people who use imprecise words.

Others say that profanity is wrong because it's vulgar, debasing, dirty, or what have you. But that's just a label or a metaphor -- it doesn't explain why profanity is bad.

Here's my tentative answer (with apologies in advance if it's too obvious): Profanities have historically been ways of conveying anger or contempt. "Fuck," for instance, is often (not always, but often) a reference not just to sex but to sex that involves contempt for one of the participants, and often a reference not to sex at all but simply a signal of anger. The deliberate transgression of taboos has intensified this emotional message: The implicit message is often (again, not always, but often) "I'm so angry or contemptuous that I'm going to use this taboo word precisely to convey the strength of my feeling." And this message remains of anger or contempt to some extent even if, from context, one can figure out that the person isn't angry or contemptuous -- the context can soften the emotional impact of the word, but it often doesn't eliminate it.

And many people are uncomfortable being around other people who are apparently angry or contemptuous. Anger and contempt are emotions that, we've learned, are sometimes followed by other things -- personal insults, or even fights. Hearing people express these emotions, even when one is not the target of those emotions, makes us uneasy and unhappy.

I noticed this most clearly once when I was playing a chess game against a classmate, who swore when he realized he'd made a bad move. I knew he wasn't really getting angry at me; if anything, he might have just been getting angry at himself, or maybe he was just swearing out of habit. But it was unpleasant for me to be around a person who was behaving in an angry-seeming way.

Of course, if people altogether stop using a word to convey a message of anger or contempt, then over time it will lose this connotation. My sense is that this is one reason why, at least in some circles, "damn" and "hell" don't really raise many eyebrows. Likewise for terms such as "bloody," which don't have a visceral effect on many Americans even if the Americans know that the term is (or at least was) a profanity in England.

But so long as these words are often used to convey these emotions, they will carry an angry or contemptuous connotation even if other contextual cues suggest the emotion is not intended. This may also explain why at least many people have a different reaction when they hear the words in a joke, or in something that's clearly playacting: That sort of contextual cue may be so strong that it becomes very clear to us that the anger or contempt isn't real, but purely fictional.

If I'm right, then the main problem with these words isn't "vulgarity" per se or reference to bodily functions per se. Rather, it's that the reference uses words that are often used to convey an emotion (as I suggested, anger or contempt) that people find unsettling and unpleasant.

This, though, is just a tentative thought on the subject -- I'd love to people's (polite!) views on the subject, in the comments thread.

from the July 22 issue?

I was just asked to do an interview for ABC's Guilt or Innocence spot, on a controversy involving the First Amendment. Sounds good; I like doing these things. As always, these gigs don't pay anything — perfectly fine by me.

To my surprise, though, while every other network I've dealt with sends a car to pick up and return the guest (based on my clear and fresh recollection, CNN, Fox, and MSNBC, but I'm sure that's been true of everyone else except perhaps the NewsHour with Jim Lehrer), the ABC people told me they didn't do this any more. What's more, their studio is way on the other side of Hollywood, which given afternoon traffic would likely be 45 minutes there and back.

If they had only sent a car, that would be one and a half hours that I could spend working. (Trust me, no-one wants this sort of a car for prestige, since there's no prestige to it; it's just a way of avoiding wasting more time than necessary.) If I have to drive myself, that would be one and a half hours that I'd spend driving through nasty traffic. And this so I can provide them a free service. I thus regretfully declined.

Seems like a pretty short-sighted move on ABC's part. They'll still get guests who have rarely done television, and see this as a great deal of fun. (I still see doing TV appearances as some fun, but not nearly as much as when I started.) They'll still get guests who have consulting careers they want to advance, or who are deeply ideologically invested in a position. But I suspect they'll lose quite a few people who are experienced, objective, and busy. Aren't those the very sorts of people they'd most want?

And, yes, I do see something amusing in a blogger complaining about a project that requires spending time with no payment . . . . Suffice it to say that blogging is fun, and driving isn't.

UPDATE: OK, score one for ABC, at least from my perspective: They're willing to have me on by phone, presumably with my picture on-screen. That might not be optimal television -- though given that they'll probably just have a sentence or two from me, I doubt it will matter much. But it sure is convenient for me.

Caller: Hello! I was hoping you folks could help me out.

Me: Yes? [Me, thinking: Sounds like someone is looking for legal advice, probably on employment law (those are the calls I mostly get from laypeople, because of my workplace harassment law online materials). Need to find someone to refer him to.]

Caller: I was just on a flight last night from Vancouver to Los Angeles . . . .

[Me, thinking: Some supposed illegal search, racial profiling, or whatever else? Why would he have called me?]

Caller: . . . and my bags were supposed to arrive . . .

[Me, thinking: Unconstitutional search and seizure.]

Caller: . . . but they didn't, and I was hoping you could help me find them.

It turns out he didn't dial 1 before the ten-digit phone number he was supposed to call, and thus called my number in the West L.A. 206 prefix instead of an Alaska Airlines number in Seattle. (I'd gotten calls like that before, I realized.)

Sometimes a looming constitutional question is really just a wrong number.