The Volokh Conspiracy

We're planning to be going with Pajamas Media for our advertising when that starts up, likely around October 1.

Until then, though, we're trying out Henry Copeland's BlogAds, about which I've heard many great things. So if you've wanted to advertise on the Conspiracy (185,000 page views per week, according to SiteMeter), the next few weeks are your big chance. We'll also be part of Jeralyn Merritt's lawyer blogads mininetwork.

In the meantime, many thanks to Box.net, our new temporary sponsor!

I got a couple of e-mails from readers who were appalled by this situation:

Just a few months ago, this ranch was known as Camp Thunderbird, the headquarters of a paramilitary group that promised to use force to keep illegal immigrants from sneaking across the border with Mexico.

Now, in a turnabout, the 70-acre property about two miles from the border is being given to two immigrants whom the group caught trying to enter the United States illegally.

The land transfer is being made to satisfy judgments in a lawsuit in which the immigrants had said that Casey Nethercott, the owner of the ranch and a former leader of the vigilante group Ranch Rescue, had harmed them. . . .

The two immigrants . . .accused Mr. Nethercott of threatening them and of hitting Mr. Mancía with a pistol, charges that Mr. Nethercott denied. The immigrants also said the group gave them cookies, water and a blanket and let them go after an hour or so. . . .

A few observations:

1. According to the story, Nethercott didn't defend the lawsuit against him, "so the judge issued [a] default judgment[] of $850,000" against him; the property was seized to satisfy the judgment. Whatever the merits of a lawsuit, you can't just refuse to appear in court. If you do, you'll essentially be ruled to have forfeited — the other side will get a default judgment, and unless you can get it set aside by showing some good reason for the default, it's as if you'd lost on the merits. That's true whatever you're accused of, and it makes it harder for me to sympathize with Nethercott.

2. Nethercott was not convicted of attacking the illegal aliens; the jury deadlocked on that. But a failure to convict doesn't dispose of a civil claim: Because conviction in criminal cases requires proof beyond a reasonable doubt, and liability in civil cases generally requires only proof by a preponderance of the evidence (a much lower standard), it may well be perfectly proper for a criminal jury to acquit (or deadlock) and for a civil claim to nonetheless prevail. (Recall that this is what happened in O.J. Simpson's killing of Ron Goldman.)

3. One could argue that illegal aliens shouldn't get a damages award when the circumstances flowed partly from their own crime — illegal entry into the country. But while I'm not an expert on this corner of tort law, my sense is that this isn't the law. Perhaps tort lawyers can clarify this for me.

Some states bar criminal trespassers from recovering damages flowing from the property owner's negligence, and possibly even the property owner's deliberate acts taken in self-defense. But I'm not sure this would apply to people whose crime is illegal presence in the country, rather than illegal entry into someone's house. And in any event, I doubt that this immunity applies to a defendant's deliberate acts not taken in self-defense, for instance if I catch a trespasser and then proceed to beat him with no self-defense justification.

4. Perhaps Nethercott really didn't beat the illegal aliens, or perhaps he was acting in self-defense — but if he refuses to come to court to give his side of the case, we can't really figure that out.

5. I'm not sure whether it's good that the illegal aliens might get "visas that are available to immigrants who are the victims of certain crimes and who cooperate with the authorities"; but I don't know what the relevant rules are, and what their chances of getting the visas are.

I can see why one might want to have such rules in some situations, in order to encourage illegal aliens to come forward to complain about crimes. I can also see why one might not want to have such rules, in order to keep illegal aliens from profiting — by getting visas, regardless of whether they also get damages awards — from their illegal entry into the U.S. I really can't speak to this without knowing more about what the immigration laws here are.

[UPDATE: I'm afraid I misentered the data in the table when I first posted this; please see the revised information. The analysis remains correct — but the data now matches it.]

AEI has a useful compilation of poll data on attitudes about homosexuality and related topics. Here's one particular interesting item, from p. 3, reporting on what percentage of respondents to a National Opinion Research Center survey said that homosexual sexual relations are "always wrong" (as opposed to almost always wrong, only sometimes wrong, or not wrong at all):

There are three obviously striking items here: First, 55% of Americans still think homosexual sexual relations are always wrong. Second, public attitudes have shifted considerably (by 18%) on this in the last thirty years. Third, younger people have always been less likely than older people to say that homosexual sexual relations are always wrong.

But the fourth thing may be less obvious, and yet I think just as important: If you look at the 18-29 age range in 1973 and the 45-59 range in 2002, which represent pretty much the same people (18-29-year-olds in 1973 would be 47-58 in 2002), the percentages are statistically identical, 56% and 55%. If you look at 30-59-year-olds in 1973 and 60-and-over in 2002, which should also be pretty much the same people (since only a small fraction of the 60-plus in 1973 survive in 2002), the change is from 74-75% to 68%, a significant change but a relatively small one.

So the primary reason for the 18% change does not seem to be that adults are hearing more about gay rights claims, seeing more out-of-the-closet gays at work or in social circles, and thus changing their views. There seems to be a modest such effect among those who were over 30 in 1973, but only a modest one.

Rather, the main change is in the views of the new generations (the ones who are now 18-44). And this change started with those who came of age in the 1960s and early 1970s (note that the "always wrong" figure has declined only from 56% to 48% from 1973 to 2002), and therefore seems likely to have been caused by the Sexual Revolution, which predated 1973, more than by the gay rights movement.

UPDATE: Many thanks to reader Marco Parillo, who gave the quote that this reminded me of, but the details and the author of which I couldn't remember: It's known as Planck's Principle (after it's author, physicist Max Planck), and it is that

A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die and a new generation grows up that is familiar with it.

I keep hearing arguments (most recently in the treason thread) that various war-time powers — for instance, the power to punish people for treasonously aiding our enemies — are applicable only if the war is declared.

No no no. Did I say, "no"? Just in case, "no." That is not and has not been U.S. law. I canvassed the caselaw on this here, but the short answer is that U.S. law has not treated our undeclared wars (e.g., the Civil War, the Korean War, the Vietnam War) differently from declared wars (e.g., World War I or World War II).

I realize that some people might argue that the law should distinguish declared wars from undeclared wars. But they should acknowledge that this is a change from longstanding American legal understanding, and they should also discuss how this would apply in situations where wars have generally not been declared (e.g., civil wars, wars in which we're attacked and conduct takes place before we have time to declare war, and so on).

But beyond this, the war against Iraq is a declared war. A declaration of war doesn't require magic words: A Congressional authorization to the President to use military force suffices. I blogged more about this here; but note in particular that Joe Biden, the drafter of the authorization of the use of force following Sept. 11, specifically said that he viewed it as a declaration of war. And the Iraq war is authorized by a very similar authorization of the use of force.

So the war has been declared; and even if it hadn't been declared, it would have still been a war for legal purposes.

A reader, responding to my post about treason and speech, writes:

If you think the Founders would approve of any test other than 1 or 2, you are nuts. It's a cliche, but its true: The Constitution is not a suicide pact.

I've long been troubled by the one-liner that "The Constitution is not a suicide pact"; let me explain why.

1. If we interpret the "suicide" in "suicide pact" in a strong sense -- the Constitution doesn't require government forbearance where such forbearance would mean the nation's death as a free and independent country -- then the one-liner is probably right. Yes, if some action was genuinely necessary to preserve the nation's very existence as an independent country, I doubt that the Framers contemplated that the government should be blocked from engaging in this action, even if it meant restricting speech, engaging in broad and otherwise forbidden searches and seizures, and the like.

Nor do I think that we should insist that the government remain powerless to do what needs to be done to preserve the country's existence. Let justice be done, I say, but not the point that the heavens fall. (Or perhaps if we let justice be done though the heavens fall, the result isn't really justice.)

2. But the trouble is that the one-liner is generally used about behavior that doesn't really significantly threaten the nation's death as a free and independent country. Axis Sally's speech didn't cause our nation's death or loss of independence; nor would it have seemed likely to do so; nor would the threat of treason prosecutions for such propaganda during World War II have materially increased our chances of national survival.

Yes, Axis-Sally-like speech might have hurt our war effort in some measure, and led to some decline in morale and some extra deaths of our soldiers. It may well have deserved punishment as a result (I think it did). Maybe even all speech that is intended to help the enemy in time of war deserves punishment, as my correspondent writes (though I don't think that such a broad speech restriction would be constitutional). But calling the toleration of such speech a matter of "national suicide" is hyperbole, not a reflection of reality. And I've found that the same is true in most cases where the "not a suicide pact" one-liner is deployed.

What's more, if the claim really is that the Constitution doesn't require government forebearance where such forbearance would cause some loss in warmaking effectiveness, or some threat of death to soldiers or others, I don't think this claim is sound. It seems to me that in the Constitution, and especially the Bill of Rights, the Framers deliberately sacrificed some government effectiveness in order to promote liberty. They thought that on balance liberty would make the nation more secure, against foreign enemies as well as domestic, but they must surely have realized that many of the amendments (the First, the Second, the Fourth, and others) would sometimes lead to pretty serious harms, including the death of soldiers.

To give just one example, a "peace with honor" Presidential candidacy during a wartime election may well embolden the enemy, prolong the war, and cost American lives. But the Constitution doesn't provide for suspending elections during wartime, and our traditions have in fact allowed such elections, even when they might have lengthened wars.

3. So the real issue is when certain behavior becomes so dangerous that this danger justifies a special constitutional rule that differs from the one used for normal dangers. That's a hard and important question (see pp. 97-100 of this article for my one brief attempt to grapple with it in one particular context). But assertions that "The Constitution is not a suicide pact," which usually rest on hyperbole about what constitutes "suicide," do not, I think, advance our thinking about this question.

For an illustration that I get similarly annoyed by some libertarian one-liners as well as conservative ones, see here (criticizing the frequent quotes of Benjamin Franklin's "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety").

A recent speech by the British Member of Parliament George Galloway (transcript by MEMRI; please let me know if you know of material errors in it) is truly remarkable: Galloway, apparently directing his remarks to Arabs in Arab countries, says, among other things,

Two of your beautiful daughters are in the hands of foreigners — Jerusalem and Baghdad. The foreigners are doing to your daughters as they will. The daughters are crying for help, and the Arab world is silent. And some of them are collaborating with the rape of these two beautiful Arab daughters. Why? Because they are too weak and too corrupt to do anything about it. So this is what Sykes-Picot will do to the Arabs. Are you ready to have another hundred years like the hundred years you just had? . . .

[T]he Iraqi resistance is not just defending Iraq. They are defending all the Arabs, and they are defending all the people of the world from American hegemony.

This reminded me of an old, hard, and unresolved problem of U.S. free speech law, which I've written briefly about before (in a problem in my First Amendment textbook, briefly in this article [PDF pp. 4, 13, 65-66]), and on the blog here and here. Imagine that Galloway was American and was tried in America, and that a jury concluded that Galloway's intention wasn't just to criticize the war, but actually to get Arab listeners to help our enemies in Iraq, and to get some of them to join the insurgents. (I can't speak definitively of Galloway's intention, but this strikes me as a not implausible assumption given the content and seeming target audience of his speech and of his past speeches, which would be relevant to the intent question.) Under U.S. law, this would constitute treason: Aiding the enemy with the intention of aiding the enemy. Would the First Amendment nonetheless protect such speech?

Treason is thankfully a rarely litigated crime in the U.S., but the closest cases seem to be the Axis propaganda cases. Consider Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950), which upheld the treason conviction of Mildred Gillars, a U.S. citizen who worked for the Nazi propaganda service during World War II, and who recorded the “Vision of Invasion” broadcast while working for the Nazis:

This program was a radio play of an hour’s length broadcast in the month before the Allied invasion of Europe. The scenes alternated between soldiers on a ship in the invasion and the home of an American soldier. The ship is sunk, the soldier is killed and he appears in a dream of his mother. The general theme is expressed in the following colloquy between the American mother and father:

“Mother: But everyone says the invasion is suicide. The simplest person knows that. Between seventy and ninety percent of the boys will be killed or crippled for the rest of their lives.

“Father: What can we do about it?

“Mother: Bah. We could have done a lot about it. Have we got a government by the people or not? Roosevelt had no right to go to war.”

Witnesses who participated in the broadcast testified that the purpose was to prevent the invasion of Europe by telling the American people and soldiers that an attempted invasion would be risky with respect to the lives of the soldiers.

Of course, Gillars was intending to undermine American morale, and under our hypothetical Galloway would be intending to help enemy recruiting and gathering of other resources. Yet this wouldn't matter for substantive treason law purposes, and I doubt that it should matter for First Amendment purposes.

It seems to me there are several candidate First Amendment rules here:

1. Speech is unprotected whenever the speaker knows that it's likely to aid the enemy. (Not all such speech is punishable under treason law, which requires a purpose of helping the enemy, but perhaps the speech could be punished under some other statute.)

   I think this would be an awful test, because it would punish a lot of important, valuable, and eminently legitimate speech that criticizes the war. As I've argued here, "During war as during peace, Americans have a right and responsibility to evaluate their government’s actions, and decide whether the actions — or the administration — need changing. To make these decisions we need to hear various views on whether the war is going well, whether we’re morally in the right in our actions, and so on. An American during the Vietnam War, for instance, should have had the right to argue to his fellow citizens that the war was unwinnable, that the U.S. should pull out, and that voters should support an antiwar candidate. His arguments and others like his might well have helped the enemy, if they weakened U.S. resolve, made it more likely that the U.S. would indeed withdraw, or emboldened the Viet Cong." Notheless, his speech should have been protected.

2. Speech is unprotected whenever the speaker has the purpose of aiding the enemy (and perhaps there's some evidence that the speech is indeed likely to provide some at least modest aid). This exception would justify punishing any speech that falls within the statutory and constitutional definition of "treason."

   I think this too is probably too broad. Perhaps the speaker’s intentions made him morally culpable and thus theoretically deserving of punishment. But prohibiting all speech that intentionally helps the enemy risks punishing or deterring even speakers who intend only to protect American interests, but whose intentions are mistaken by prosecutors and juries — a serious risk, especially in wartime. On the other hand, I suspect that quite a few judges would take the view that treason by speech that is intended to help the enemy should be treated the same as treason by action that is intended to help the enemy.

3. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is paid for such speech. That might be a distinction between Gillars and Galloway (I know of no evidence that he is being paid for his pro-insurgency speech); but it would be an odd distinction in U.S. constitutional law, given that speech is routinely protected despite being done for money. Most writers, filmmakers, journalists, and other speakers are paid for their speech.

4. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is coordinating his speech with the enemy. This too might be a distinction between Gillars and Galloway (again, I know of no evidence that he is actually coordinating his speech with the insurgents). As I've written here, I think this is probably the best test — but I'm far from sure of it, and I'm even less sure that courts would agree with me.

5. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is actually employed by the enemy. My friend and fellow lawprof Tom Bell takes this view.

6. Speech is protected regardless of the speaker's purpose of aiding the enemy or coordination with the enemy. Under this approach, Axis Sally, Tokyo Rose, any other American equivalent of the British Lord Haw-Haw, and others would be constitutionally immune from punishment. (Note that the woman convicted for being Tokyo Rose was eventually pardoned, apparently because of evidence that she acted under duress, which is why I prefer to focus on Axis Sally's conduct rather than Tokyo Rose's; but the purely constitutional question is the same for both.) The Conclusion of Tom Bell's article suggests that this might be the right test, though it also endorses an employed-by-the-enemy test.

Are there other reasonable options, for instance ones focused on the intended audience (domestic vs. foreign), the sort of aid, the magnitude of aid, or what have you? What do people think is right? Please post your thoughts in the comments, and think through the counterarguments. (For instance, if your observation is simply that George Galloway's speech is clearly protected because all criticism of the government is protected, you might want to at least explain how this would apply to Axis Sally's criticism of the government. Conversely, if your observation is that speech should be unprotected whenever it seems likely to help the enemy, you might want to confront the question of how we can have meaningful elections when no candidate can criticize the war effort — or even criticize the war's morality — for fear that such speech might help the enemy and might thus lead him to be thrown in prison.)

OpinionJournal reported yesterday (quoting the WAFB-TV Web site):

People on the religious right often accuse their counterparts on the secular left of antireligious bigotry, a description the secular left regards as unfair. But here's someone who seems to be guilty as charged: Joe Cook, head of the American Civil Liberties Union in Louisiana, who's fighting with the Tangipahoa Parish school board over religious speech in government schools. Baton Rouge's WAFB-TV quotes him as follows:

"They believe that they answer to a higher power, in my opinion. Which is the kind of thinking that you had with the people who flew the airplanes into the buildings in this country, and the people who did the kind of things in London."

If you don't find this troubling, imagine someone saying the reverse: They don't believe in God, which is the kind of thinking you had with the people who imprisoned dissidents in the gulag and murdered millions through famine.

One can equally imagine someone criticizing a group of Muslim government officials on the grounds that "They believe that they answer to Allah and can therefore ignore court orders restricting Muslim prayer in government institutions, which is the kind of thinking that you had with the people who flew the airplanes into the buildings in this country, and the people who did the kind of things in London." Fairly criticizing religions is perfectly proper: Religious ideologies, like any other ideologies, are eminently sound targets for public debate (though I recognize that sometimes such criticism is unlikely to be terribly persuasive). But, as I'll discuss a bit more below, the quoted argument does not strike me as fair criticism.

I should note that there seems to have been some context missing from the WFAB quote: The ACLU spokesman reports (and I have no reason to doubt him) that he wasn't just condemning the school board, but alleging that they were persistently violating the law and violating a court order. His comment was thus apparently focused not just on the board's belief in a higher power, but on its view that this belief justifies their resistance to a court order. (I include his entire e-mail to me, responding to my query to him, below.)

But as my Muslim official hypothetical suggests, that's still no reason for analogizing the government officials' religious beliefs — even beliefs that lead them to nonviolently resist a court order that they think improper — to beliefs that spawn terrorism. Lots of people have violated lots of laws because of their religious beliefs: We've seen this in the abolitionist movement, the antiwar movement, the civil rights movement, the "sanctuary" movement aimed at protecting illegal immigrants from certain countries, and more.

Sometimes an insistence on following what one sees as a higher authority has been noble, and sometimes misguided and pernicious. But when it's nonviolent — even if one thinks it's improper or even unconstitutional — it seems to me quite wrong to tar the religious officials with an analogy to terrorism, as if all religiously motivated violation of the law is alike.

I can't speak with complete confidence as to whether Mr. Cook's quote represents religiously bigoted belief on his part. But it does rest on a guilt by association based on group membership — here membership in the group of religious believers, or at least religious believers who believe religious law sometimes justifies violation of secular law — that is in many ways similar to classic religious bigotry (as I think the atheist and Muslim hypotheticals suggest).

In fairness to Mr. Cook, here's his e-mail:

Mr. Eugene Volokh,

In answer to your inquiry, my quote was taken out of context and sensationalized. As background, the media inquiry was about the system wide training that the Tangipahoa Parish School Board was undertaking on Monday. It was in response to an ACLU sponsored lawsuit and consent judgement signed off by the Board nearly a year ago on August 27, 2004. The Board finally acted belatedly to supposedly do in-service training and inform everyone of the contents of the consent judgement. That agreement prohibits prayers over the intercom and at all school sponsored events, including football games and other athletic activities.

Since the consent agreement, four motions for contempt have been filed against the Board and individuals within the system for violations related to the agreement and a court order in February:

At an Amite High School annual awards banquet a student gave a prayer over the speaker system, while the principal endorsed it and did not intervene or admonish the student. This followed on the heels of a teacher who wrote a prayer for a student to give during an end of year banquet. A loudspeaker prayer at a baseball game and a prayer by a student at a school board meeting preceded that incident.

I made a statement against this backdrop of defiance toward the federal courts exhibited by the Board (Defendants Pre-trial Inserts): Defendants reject the notion that the government can tell them how they can and cannot pray, or otherwise place restrictions on the manner in which they choose to open their meetings.

I made a much longer statement to the reporter in reference to the Board's [lack] of respect for the Constitution and the rule of law related to the current case, Doe v. Tangipahoa Parish School Board (USD ED La., 03-2870), and three others filed against them on church state issues over the past eleven years. Against that backdrop, I said something as I recollect to the effect that the Board has exhibited a disrespect for the Constitution and the rule of law as interpreted by the courts. They don't want to abide by the agreement. They have always crossed the line of separation of church and government and that is dangerous to our freedom and democracy. They believe they answer to a higher power than the rule of law, in my opinion, based on their past statements and actions. That is the kind of thinking and mindset that tragically and unfortunately led people to fly airplanes into buildings.

In retrospect, I regret the use of that hyperbole and analogy because the media and others have drawn erroneous conclusions and diverted attention from the real issues at stake. Now, I would say, "The School Board and their supporters who want the government to endorse prayers and religion in the schools are violating the Constitutional speed limit by going 100 mph in a 20 mph school zone. That kind of mindset endangers our freedom and democracy."

Joe Cook, Executive Director
ACLU of Louisiana

I'm looking for examples where (1) the opponents of some proposed law, constitutional amendment, or judicial decision argued "this action will be interpreted in this particular bad way" or "this action will set a precedent that will be used to reach this particular bad result," (2) the supporters assured the public that no, of course this won't happen, and (3) some time down the line — preferably no more than 50 years, just to avoid especially hard questions of causation — the foretold result did take place, despite the supporters' reassurances. (It doesn't matter whether you like the ultimate result or not; and it also doesn't matter whether you think the assurances were sincere or not.)

Here are three examples, from a forthcoming article of mine:

1. In Griswold v. Connecticut (1965), the Supreme Court struck down a ban on the use of contraceptives. A three-Justice concurrence (joined by Justice Brennan) seemed to dismiss the argument that this would lead to slippage to a broader sexual autonomy right (presumably because others had been arguing about the risk of such slippage):

   [T]he Court’s holding today ... in no way interferes with a State’s proper regulation of sexual promiscuity or misconduct. As my Brother Harlan so well stated in [an earlier case in which he argued for a right of married couples to use contraceptives], “Adultery, homosexuality and the like are sexual intimacies which the State forbids ... but the intimacy of husband and wife is necessarily an essential and accepted feature of the in-stitution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality ... or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.”

   Yet in the recent Lawrence v. Texas, the Court used Griswold as "the most pertinent beginning point" for its decision to strike down laws banning homosexual conduct.

2. From the 1960s on, many states decriminalized same-sex sexual conduct. Some states then banned sexual orientation discrimination in employment, housing, education, or public accommodations. Some added crimes based on sexual orientation to the list of offenses that are treated as hate crimes. Some allowed same-sex couples to adopt.

   When some such liberalizations were proposed, some people warned that these laws were steps down a slippery slope to broader rejection of traditional sexual rules, including towards same-sex marriages. These slippery slopes arguments were dismissed, sometimes contemptuously. The claim that a hate crime law “would lead to acceptance of gay marriages” was called “arrant nonsense.” A proposed antidiscrimination law, people were assured, does not “put Massachusetts on a ‘slippery slope’ toward” “legaliz[ing] ‘gay marriage.’” “Those that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the ‘slippery slope’ [toward gay marriages] . . . . But, this legislation needs to be looked at on the face value of what it is, and it really does very little.” Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A; Editorial, A Gay-Protection Forum, Boston Globe, Oct. 15, 1989, at A30; Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise, Apr. 30, 1994, at B1 (quoting Riverside Human Relations Commission member Kay Smith).

   Yet when the Massachusetts Supreme Judicial Court held that the state constitution requires the legislature to recognize same-sex marriages, part of its reasoning rested on the legislature’s decision to ban sexual orientation discrimination: This decision, the Court reasoned, undermined the asserted government interest in condemning homosexuality as immoral, and thus helped strip away any rational basis the law might have had. Likewise, when the Vermont Supreme Court held that the state constitution requires the legislature to recognize same-sex civil unions (marriages in all but name), a large part of its argument rested precisely on the legislature’s past enactment of various gay rights laws, including the enactment of antidiscrimination laws and hate crimes laws that refer to sexual orientation. Goodridge v. Department of Public Health, 440 Mass. 309, 312 (Mass. 2003); Baker v. State, 744 A.2d 864, 885-86 (Vt. 1999)

3. When the Equal Rights Amendment was being debated in the 1970s and 1980s (both at the state and federal levels), and the ERA’s foes argued that the sex discrimination ban might lead to legalization of gay marriage, such arguments were derided as “emotional scare tactics,” “hysterical,” and “canards.” Yet one Justice who provided the necessary fourth vote for the Massachusetts decision relied in part on the Massachusetts Constitution’s Equal Rights Amendment, which banned sex discrimination: Sexual orientation discrimination in marriage laws, he concluded, was sex discrimination. Patricia Avery & Patrick Oster, Equal Rights for Women – Doomed?, U.S. NEWS & WORLD REP., Apr. 28, 1975, at 45; Betty Friedan, Feminism’s Next Step, N.Y. TIMES, July 5, 1981, § 6, at 14; Judy Mann, Obstruction, WASH. POST, Feb. 19, 1982, at B1; Goodridge, 440 Mass. at 344-49 (Greaney, J., concurring).

I'm pretty sure the same happened with assurances that the Civil Rights Act of 1964 would never lead to, or even authorize, race-based preferences for nonwhites; likewise, as David Bernstein coincidentally posted this morning, this happened with assurances that the Civil Rights Act of 1964 would never lead to speech restrictions, or interferences with certain kinds of discriminatory practices. I've also heard the same about assurances that the income tax would never go above 10 or 20%, and that the social security number would never be used as a national identification, but I haven't seen specific quotes on this, and I like to have specific quotes.

So if you have specific quotes and specific citations that fit these conditions — (1) when a proposal was made, opponents argue that it would by its terms yield a certain bad result, or would set a precedent for a bad result, (2) supporters assured the public that this wouldn't happen, but (3) the opponents' predictions ultimately came true (or very nearly true), and the supporters' assurances proved wrong, please post them in the comments.

I'd like the comments thread to be a useful resource for this, so please keep posts within these criteria. In particular, please don't argue about whether race-based preferences in employment, hostile work enivornment law, high income taxes, national identification numbers, or a constitutional right of sexual autonomy or same-sex marriage are a good idea. That's not what this post is about. Also, please limit yourself to specific quotes and specific citations. Please avoid general conjectures about when such unreliable assurances must doubtless have been made.

The Seattle & King County Public Health page called "HIV/AIDS Program: How effective are condoms?" reports:

No method of contraception or disease prevention is effective when practiced incorrectly or inconsistently. A 1988 National Survey of Family Growth found abstinence to have a contraceptive failure rate of 26% when not practiced consistently. So, in abstinence, as in condom use, consistency is key.

Mighty odd-sounding, as OpinionJournal reported: Is it really abstinence when you aren't consistently abstaining? Or is their claim that people who decide to be abstinent nonetheless in practice end up backsliding — and often enough that they get pregnant in 26% of the first year in which they chose to be abstinent? (That's how contraceptive failure rates are generally measured.) If that's so, then that would suggest that abstinence decisions, at least unless reinforced by some belief system that will deepen the commitment to the decision, are remarkably ineffective.

But here's what's really going on: (1) a confusing term being used by public health scholars, which (2) likely led to confusion on the part of the person writing the Web page, which (3) translates into false claims being passed along to the public. If you look at abstracts of the 1988 Survey, you find that 26% is the failure rate for "periodic abstinence", which means "rhythm and natural family planning."

That's right: 26% is the failure rate for the rhythm method, not for deliberate decisions to abstain. Public health scholars apparently refer to the rhythm method and similar practices as "periodic abstinence," which is literally accurate, but potentially confusing to nonexperts, since it's close to a term ("abstinence") that means something quite different in lay discussion. The Web page author seemed to have been confused, interpreting "periodic abstinence" simply as "inconsistently practiced abstinence," and thus labeling it simply as "abstinence." And readers will therefore be getting false information: "Abstinence" in lay discussion generally refers to a deliberate decision not to have sex at all — rather than just to a decision to have sex only on one's presumably less fertile days — so people will read the claim as pointing to the dangers of abstinence, rather than the dangers of the rhythm method.

So three tips: (1) If you're a scholar, especially in a discipline where laypeople or nonacademic public policy analysts might consume your output, try to avoid adopting terms that may confuse outsiders. (I realize that sometimes there may have to be trade-offs between clarity to outsiders and clarity or convenience to fellow scholars, hence my use of "try.") Lawyers and judges, by the way, are frequent offenders here, creating legal terms that sound like one thing in English (e.g., "actual malice" in libel) but mean something quite different in legalese. This is especially dangerous in law, where the lay public is especially likely to be interested in the information, though also especially hard to root out, since many of these terms evolve over decades, and are hard to clarify because of the weight of precedent and tradition.

(2) If you're consuming academic works, be on the lookout for terms that don't mean quite what they seem to mean at first, and for qualifiers that are sometimes overlooked but are tremendously important. There are false friends in translation from technical English into lay English just as there are in translation between languages.

(3) Don't believe everything you read.