As I mentioned below, Pete McCloskey (according to the L.A. Times, "the best thing that could happen for the district, the state, the nation and possibly the Republican Party") had spoken to a Holocaust revisionist group, and had called the Holocaust "the so-called Holocaust." That struck me as troubling, and it seemed to me that the papers should have acknowledged this and tried to explain it.

But a commenter points to yet another item, which strikes me as even more troubling. This is from McCloskey's speech at the Institute for Historical Review conference (emphasis added):

From an Israeli television studio I was interviewed by Tom Brokaw in New York for NBC national television. I'll never forget what happened. He asked what we had found, and about our talks with Assad, Hussein and Arafat. You know, you just get five-minute sound bites. I was asked what I thought of Begin. And I said that he's the same guy who, back in 1947, had hanged British soldiers. He was terrorist. Even most Jews thought of him as a terrorist. Some called him a Jewish Hitler, I believe. And I was asked what I thought of Ariel Sharon [who was then Israel's defense minister]. "Well, he's a butcher," I said. "He's a mean guy." I was asked about Yitzhak Shamir. I said something similar about him. And then Brokaw asked me what I thought about Yasser Arafat. "Well," I said, "I think he's a man of peace." At that point, the Israeli military censor cut off the interview and the link to NBC in the United States....

Now if the Israelis did cut off the interview, they could quite properly be faulted for it. And it's certainly quite legitimate to fault Israeli leaders for their past actions. (I can't speak to the details of Begin's, Sharon's, and Shamir's past conduct, but I do know that reasonable people have made such criticisms of Begin and Sharon; for purposes of this post, I'm happy to assume the truth of those criticisms, and to include Shamir in the group.)

But can someone who harshly condemns Begin, Sharon, and Shamir for their past violent acts yet calls Yasser Arafat "a man of peace" really be "the best thing that could happen for the district, the state, the nation and possibly the Republican Party"?

(For those who want to justify McCloskey's statements on the theory that he would have said more to qualify his position about Arafat had the censors not cut him off, please note that he related this story in his own speech, with no qualification and no explanation. When someone gives a speech to a Holocaust revisionist group and favorably recalls an incident in which he harshly criticized Israeli leaders but called Arafat "a man of peace," that seems to me a good window on the man's mindset.)

and removes from its shelves the current issue of Harper's Magazine — the issue that reprints the cartoons in the context of an article by Art Spiegelman, the author of Maus and other graphic novels.

The cartoons are at the center of one of the most important censorship debates of this decade. Seeing them is necessary to evaluate the debate. Harper's is one of the leading general-interest magazines in North America. Art Spiegelman is one of the top cartoonists now living. And yet the fear of demonstrations — which presumably refers to the fear of violent demonstrations — apparently led Canada's largest retail bookstore to buckle. Sad.

From The Toronto Globe and Mail:

Canada's largest retail bookseller has removed all copies of the June issue of Harper's Magazine from its 260 stores, claiming an article by New York cartoonist Art Spiegelman could foment protests similar to those that occurred this year in reaction to the publication in a Danish newspaper of cartoons depicting the Prophet Mohammed.

Indigo Books and Music took the action this week when its executives noticed that the 10-page Harper's article, titled Drawing Blood, reproduced all 12 cartoons first published last September by Jyllands-Posten (The Morning Newspaper).

The article also contains five cartoons, including one by Mr. Spiegelman and two by Israelis, "inspired" by an Iranian newspaper's call in February for an international Holocaust cartoon contest "to test the limits of Western tolerance of free speech."

It's unclear what part, if any, the five cartoons played in the Indigo ban; phone calls to its Toronto headquarters were not returned yesterday. In 2001, Indigo founder and CEO Heather Reisman ordered all copies of Adolph Hitler's Mein Kampf pulled from stores, describing the book as "hate literature." Two years later, she helped found the powerful lobby group the Canadian Council for Israel and Jewish Advocacy.

In a memo obtained by The Globe and Mail that was e-mailed to Indigo managers yesterday about "what to do if customers question Indigo's censorship" of Harper's, employees are told to say that "the decision was made based on the fact that the content about to be published has been known to ignite demonstrations around the world. Indigo [and its subsidiaries] Chapters and Coles will not carry this particular issue of the magazine but will continue to carry other issues of this publication in the future." ...

If you have more information on this story, please post it in the comments. Thanks to reader John Thacker for the pointer.

The California Court of Appeal has just held that, under the Stored Communications Act, service providers need not — and may not — turn over the contents of subscriber e-mail when those contents are subpoenaed in a civil case, unless the subscriber consents. (Warrants and other court orders in criminal cases are another matter.) This came in the same case, O'Grady v. Superior Court (Apple Computer, Inc.) that I discuss below.

UPDATE: Added the "unless the subscriber consents" clause; I at first omitted it because I thought it went more or less without saying, and that the controversies arise precisely when the subscriber doesn't want the information turned over. But, prompted by the first comment posted below, I thought I'd add the clause for the sake of precision.

So holds the California Court of Appeal in Apple's lawsuit based on a Web site's publication of leaked Apple trade secrets. (The site is O'Grady's PowerPage.) The court was interpreting the California Constitution's journalist's privilege provision, which protects (empasis added) "[a] publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service[, or a radio or television news reporter or other person connected with or employed by a radio or television station], or any person who has been so connected or employed" from being held in contempt for failing to reveal the name of a source.

The court said, among other things, that:

1. The California journalist's privilege isn't limited to printed media.

2. The privilege applies to the publication of raw data — even with little explicit editorial commentary — and not just to the reporter's own words about that data.

3. Though "periodical publication" might be read as requiring publication at fixed intervals (like the way most newspapers generally publish, but unlike the way blogs publish), in this context it simply refers to "all ongoing, recurring news publications while excluding non-recurring publications such as books, pamphlets, flyers, and monographs." (The court also noted that weblogs might also be considered "magazines," but concluded that it didn't have to resolve this because of its broad reading of "periodical publication."

4. Bloggers are also covered by the journalist's privilege that California courts (and many other courts, though not all courts) have inferred from the First Amendment. This federal privilege, unlike the state privilege, can be trumped by a showing that the confidential information is necessary and not obtainable through other means (a showing that the court found wasn't adequately made here); in this respect, the federal privilege is narrower than the state privilege, but it's also broader in other respects (for instance, it provides more protection than just immunity from contempt sanctions), so the federal privilege remains relevant in California.

5. The courts ought not limit the privilege to "legitimate" journalists, as opposed to mere bloggers (who, Apple argued, "are not members of any professional community governed by ethical and professional standards"). The court wrote, "We decline the implicit invitation to embroil ourselves in questions of what constitutes 'legitimate journalis[m].' The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace."

It seems to me that the court got this absolutely right. Under the California journalist's privilege, all those who communicate to the public in a relatively regular way (as opposed to speaking only occasionally, or speaking only to a few friends) are protected, and are covered by the language "newspapers, magazines, or other periodical publications." Some state statutes are narrower, applying, for instance, only to "newspapers." But the California provision is written broadly, and should be read broadly, without any textually unjustified, hard-to-administer, or illogical distinctions.

Congratulations to O'Grady's legal team, including the Electronic Frontier Foundation and (representing amici) the Center for Internet & Society, for their success in this case. I was one of the amici (bloggers and others) on whose behalf the Center filed its brief.

Denise Howell (Bag and Baggage) has more.

Congratulations to Brett Kavanaugh, whose appointment to the U.S. Court of Appeals for the D.C. Circuit has just been confirmed by the Senate. Brett is a very smart and thoughtful guy, and will make a first-rate judge. He's also, I'm delighted to say, a Kozinski clerk (he clerked the year before me).

Some commenters on my earlier post faulted Congress for restricting (though not banning) only picketing around national cemeteries, which as I understand it mostly limits the law to military funerals. Why doesn't it apply to "funerals of gays or 'normal people?'"

Because restricting noncommercial conduct around all funerals would be pretty clearly outside Congress's enumerated powers (even setting aside the First Amendment constraints on those powers). Even as to this law, there's some question whether Congress has the enumerated power to restrict noncommercial conduct on state-run streets outside federal cemeteries; but at least there Congress has a plausible case that such restrictions are necessary and proper to protecting activities that take place on federal property. (As to restrictions on picketing around military funerals, there's also a somewhat more far-fetched case that such restrictions are necessary and proper to helping raise armies.) But a restriction on all funeral picketing, with no connection to federal activities, would be pretty clearly unconstitutional.

in Slate. Very funny.

When the L.A. Times endorsed former Congressman Pete McCloskey for Congress, and said he was "the best thing that could happen for the district, the state, the nation and possibly the Republican Party," wouldn't it have been good to note — to explain why he deserves election despite this — that he has referred to "the so-called Holocaust" in a speech he gave before a conference put on by the Institute for Historical Review?

McCloskey said at the time [2000], "I don't know whether you are right or wrong about the Holocaust," and referred to the "so-called Holocaust."

According to the San Jose Mercury-News,

McCloskey said Friday that he has never questioned the existence of the Holocaust, and the 2000 quote referred to a debate over the number of people killed.

Okay, then. Note that McCloskey's speech to the IHR was covered by the L.A. Times at the time.

I realize this is a bit of an old story (the editorial was on Jan. 25), but I just heard of it, and thought it worth noting, especially given that McCloskey's primary campaign is still going on.

UPDATE: A reader points me to this letter from Pete McCloskey to the editors of the Institute for Historical Review's publication:

I want to make a polite suggestion. So many of my friends and relations personally saw the Nazi death camps during the last days of World War II that I myself am convinced that there was a deliberate policy of extermination of Jews, Poles, gypsies, and homosexuals by the Nazi leadership. Numbers of the specific events can be challenged, but it is my personal view that the IHR would be far more effective if it were to concede that a holocaust did occur and focus on the ADL’s distortions of truth. Andy Killgore’s and Dick Curtiss’ publication would be an ideal example to follow.

Paul N. McCloskey, Jr.
Redwood City, Calif.

FURTHER UPDATE (reflected in a change I made to the title of the post): Yesterday, the San Francisco Chronicle also endorsed McCloskey, again without noting his comments on the "so-called Holocaust." Thanks to CalPatriot for the pointer.

An AP story, as posted on the CNN site, reports:

Demonstrators would be barred from disrupting military funerals at national cemeteries under legislation approved by Congress and sent to the White House....

Under the Senate bill, approved without objection by the House with no recorded vote, the "Respect for America's Fallen Heroes Act" would bar protests within 300 feet of the entrance of a cemetery and within 150 feet of a road into the cemetery from 60 minutes before to 60 minutes after a funeral....

(a) Prohibition- No person may carry out--

(1) a demonstration on the property of a cemetery under the control of the National Cemetery Administration or on the property of Arlington National Cemetery unless the demonstration has been approved by the cemetery superintendent or the director of the property on which the cemetery is located; or

(2) with respect to such a cemetery, a demonstration during the period beginning 60 minutes before and ending 60 minutes after a funeral, memorial service, or ceremony is held, any part of which demonstration--

(A)(i) takes place within 150 feet of a road, pathway, or other route of ingress to or egress from such cemetery property; and

(ii) includes, as part of such demonstration, any individual willfully making or assisting in the making of any noise or diversion that disturbs or tends to disturb the peace or good order of the funeral, memorial service, or ceremony; or

(B) is within 300 feet of such cemetery and impedes the access to or egress from such cemetery....

Nonetheless, the law does seem to do less than "bar protests within 300 feet of the entrance of a cemetery and within 150 feet of a road into the cemetery from 60 minutes before to 60 minutes after a funeral." It bars only access-impeding demonstrations within 300 feet of the cemetery entrance, and only demonstrations that involve "noise or diversion that disturbs or tends to disturb the peace or good order of the ... ceremony" within 150 feet of the entrance road. If the latter provision is interpreted the way it has been in other laws that contain this language, it will be simply a content-neutral ban on speech that disturbs because of its noisiness and not its message. This would likely make the law constitutional, because of the limitation to disrupting or access-impeding demonstrations, possibly except for the one-loud-demonstrator-makes-all-liable provision.

Perhaps the "barred from disrupting" in the opening paragraph might be said to capture the extra requirement of blocking access or causing disruption. Still, it seems to me that in context, the AP story may well be reasonably read as simply asserting that the bill "would bar protests within 300 feet of the entrance of a cemetery and within 150 feet of a road into the cemetery from 60 minutes before to 60 minutes after a funeral." And that paints the law as quite a bit broader than it actually is.

Many thanks to reader Jeffrey Williams for the pointer to the AP story.

UPDATE: Commenter Jason Fliegel correctly points out that the ban applies to all demonstrations -- including favorable ones -- not just to protests. I was using protest as an imprecise term for demonstration, but it's better to be precise, especially if all it means is changing one word; I've therefore changed the post (in which I used the term "protest") accordingly.

Commenters on my earlier post that asked about this have made some very interesting points; I urge people who are interested in the issue to read them. Here's the best argument I could see, after having read that discussion (especially the comments by Medis), for Hastert's position:

1. The Speech and Debate Clause covers not just public documents that are part of the legislative process, but nonpublic ones as well, such as confidential bill drafts, memos about legislation from the staffer to the Congressman (here I use the term to mean both Senator and Representative), memos from one Congressman to another, and the like. I think that's likely right, under the Court's precedents.

2. The Speech and Debate Clause not only bars the other branches from punishing Congressmen based on their statements in the legislative process, but also creates a sort of evidentiary privilege -- like the lawyer-client privilege, the executive privilege, and so on -- that protects confidential documents that are part of the legislative process from being uncovered. That seems plausible, though not certain; but in any event, it seems that the Department of Justice agrees with this.

3. To enforce this privilege, any search must keep the Executive Branch from learning the contents of the documents. Before the documents are turned over to the prosecutors who are working on this case, the privileged documents must be screened out. This is similar, I believe, to what's done with searches of lawyers' offices, where someone who accompanies the searchers screens out the documents that appear to be covered by lawyer-client privilege. Again, the DoJ seems to agree with this; they seem to have provided screeners who are supposed to be independent of the prosecutors..

4. Now, the main argument against this particular search: Any such screener should have been a Legislative Branch official, not an Executive Branch official or someone controlled by the Executive Branch. That is not the rule for ordinary searches of lawyers' offices; as I understand it, the screener there is chosen by the prosecutors, though often not a prosecutor's employee himself. But perhaps it should be the rule for the search of a Congressman's (or a federal judge's) office, since there is a possible set of relatively trustworthy officials who can protect the interests of their Branch, but who will not be controlled by the particular alleged wrongdoer whose premises are being searched.

This does strike me as a plausible argument -- but it is an argument of the "the search would have been just fine, but only with this extra procedure that we wanted them to implement" sort, and not of the "the search is unconstitutional, period" sort.

In any case, that's my tentative thinking; I'd love to hear more on this.

from an anonymous comment to Orin's post below:

WARRANTS: Not good enough for us, too good for you.

[UPDATE: The comments have been very interesting; I have a post on a plausible, though limited, answer here.]

I confess I'm pretty puzzled by Speaker Hastert's theory here. I understand that the power to arrest, search, and prosecute Congressmen could be abused by the Executive. But I take it that Speaker Hastert isn't arguing that Congressmen can't be prosecuted, or even can't be prosecuted for bribery. (Actually, Justices Douglas, White, and Brennan seemed to take the latter view in United States v. Brewster (1972), at least as to the selling of legislative acts; but they lost, and I hadn't heard of anyone trying to revive this position.)

Is it that Jefferson could be prosecuted, but his office couldn't be searched? If so, what exactly is the constitutional basis for the distinction? For now, my tentative view is the same as Orin's — there's no constitutional problem here — but perhaps I'm missing something.

If you have some thoughts about the constitutional issue, either for or against the argument that the search was impermissible, please post them. Please stay away from general speculation about the politics or ulterior motives of the matter; such speculation may be quite interesting, but I just want to keep this particular discussion thread focused on the constitutional question.

A commenter to the government speech post reasoned that, "I'd say the threat of a reprimand would have a chilling effect on speech." Sure; but I think that can't be enough to make a reprimand (assuming the reprimand is based on the target's constitutionally protected speech) unconstitutional.

Lots of things may have a chilling effect on speech. Criticism, in particular, often has a chilling effect on the speech that's being criticized; that's often its purpose. One reason we don't say various things -- stupid things, rude things, or even things that we think are right but that we think many others dislike -- is that we fear being criticized for them.

Likewise, government denunciations of particular positions, even without naming names, can have a chilling effect. If the government denounces racism, that may deter racists from speaking. If the University Administration denounces criticism of homosexuality -- or denounces defense of homosexuality -- that may likewise deter professors and students from speaking, even setting aside their fear of more tangible actions. When leading institutions argue that some viewpoint is reprehensible, that surely helps create a climate in which some people will be deterred from expressing that viewpoint.

The question, I think, is whether government criticism of particular people's speech, and in particular the government's assertions that the speech violates some rules, is sufficiently different from the other examples I just gave. I'm not sure what the answer is; but let me offer this hypothetical: Say that a high school student, or for that matter a college student, writes something that's racist, religiously bigoted, or otherwise insulted. Let's assume that the administration may not punish him (especially likely for the university student).

Should the administration be equally barred from publicly condemning him by name, for instance in some e-mail to the students? What if the speech is done by a student organization -- should the administration be barred from publicly condemning the group by name? Should it make a First Amendment difference if the statement were labeled an "official reprimand" as opposed to being an ad-hoc statement?

See this Reuters report. "It is now clear the story is not true .... We apologize for the mistake and for the consternation it has caused not just National Post readers, but the broader public who read the story."

I also regret having passed along what proved to be an incorrect claim. I flagged my uncertainty in the original post, but I'd much prefer to have not quoted what proves to be a false story, than to have quoted it even with a not-sure-whether-this-is-right disclaimer.

The Texas Commission on Judicial Conduct has officially admonished Texas Supreme Court Justice Nathan Hecht for his statements on behalf of his friend Harriet Miers, when she was nominated for the U.S. Supreme Court. Orin comments on this, and questions whether the admonition is quite fair. I might also add an interpretive question: One of the canons that Justice Hecht supposedly violated says, "A judge or judicial candidate shall not authorize the public use of his or her name endorsing another candidate for any public office, except that either may indicate support for a political party." Does "candidate" include a Presidential nominee for a nonelective office, or does it only include candidates who are running in an election?

But let me also ask a different question: The Houston Chronicle reports that Justice Hecht plans to appeal the ruling, on the grounds that his comments were protected by the First Amendment. Does it violate the First Amendment, though, for the government to publicly reprimand you for your speech? The government, after all, is contributing something to the marketplace of ideas (though of course backed with its special authority as the government).

Maybe governmental speech is itself protected by the First Amendment, and maybe not; that's a complex and unresolved question. But why should government speech, unconnected to any coercive action (loss of a job, loss of an office, and so on) be treated as a First Amendment violation? May Congress issue ad hoc condemnations of groups and organizations that it finds reprehensible (e.g., the Communist Party, the Nazi Party, etc.)? If so, why can't government agencies issue condemnations of speech that they find violates some rule, even when the speech is immune from criminal punishment or other tangible governmental action?

I've seen some lower court cases that have, without much reflection, treated reprimands based on speech as First Amendment violations. There's also been a bit of back-and-forth on the Court about this at times, though rarely. Still, it seems like an important and unresolved issue.

When I criticize Slate's Bushism of the Day, for instance on the grounds that it unfairly quotes material out of context, I often get the reaction that it's just a joke, and jokes don't have to be fair, just funny.

Now I had assumed that political jokes — especially, though not only, those that are indeed trying to make a political point (however slight and familiar) — should still conform to some standards of fairness. If, for instance, some journalist wants to make fun of a candidate for the candidate's supposed inarticulateness, dishonesty, pronenss to exaggeration, pomposity, meanness, pride, or what have you, the quotes he provides in the service of this should be accurate and in context. But I realize I might be mistaken, so I thought I'd ask our readers their views.

To channel the discussion, let me suggest the following. Say that a journalist decides to make fun of Hillary Clinton for some trait she supposedly possesses -- say, cold-bloodedness, personal cruelty, or pomposity. (This is purely a hypothetical; I'm not claiming that Senator Clinton possess such traits.) In the course of this, the journalist provides various quotes that are potentially funny, because they illustrate the trait in a humorous way. Which, if any of these, do you think the journalist ought not do? Or should the journalist feel free to do all of these things, on the theory that he's acting as a humorist, not a journalist, and that the sole question in humor is whether the joke is funny, not whether it's fair?

1. Making up a quote that was supposedly said by Hillary Clinton, in a context in which many readers will assume that Hillary Clinton actually said this (i.e., not in the standard "What did Hillary say to Bill?" joke, where it's clear that the statements are made up).

2. Providing a quote that Hillary Clinton actually said, but omitting a fact that the audience likely doesn't know, but that would be relevant for evaluating the actual significance of the quote. (For instance, quoting Senator Clinton saying something mean, but not revealing that she said this to someone who had supposedly romantically mistreated her daughter, or to someone who had been continuously heckling Clinton herself.)

3. Providing a quote that Hillary Clinton actually said, but not quoting the material right before or right after the quote that, if included, might change the way the audience perceives the quote. (For instance, quoting Clinton saying something that seems cruel, but omitting the following line, which reveals that the statement was just a joke.)

Would our response to all of this be, as some commenters in an earlier thread suggested, "'fairness' in [Volokh]'s sense is indeed not something that we generally expect or demand of such jokes," or "[j]okes don't have to meet standards of fairness, if they're funny"? Would we at least balk at the journalist's inventing a quote and passing it off as real, no matter how funny the quote is? If we would, would we think the same about the journalist's omitting important facts, or important context?

Here's today's Bushism of the Day, from Slate:

"Finally, the desk, where we'll have our picture taken in front of — is nine other presidents used it. This was given to us by Queen Victoria in the 1870s, I think it was. President Roosevelt put the door in so people would not know he was in a wheelchair. John Kennedy put his head out the door." — Showing German newspaper reporter Kai Diekmann the Oval Office, Washington, D.C., May 5, 2006

My first reaction when reading it was: Huh? Kennedy putting his head out the door? What is he talking about? I had assumed that this would be the reaction of many other readers, and the response to my post below confirms that it was indeed the reaction of some.

If I'm right, wouldn't it have been just a bit more fair to include a little more context?

Finally, the desk, where we'll have our picture taken in front of — is nine other Presidents used it. This was given to us by Queen Victoria in the 1870s, I think it was. President Roosevelt put the door in so people would not know he was in a wheelchair. John Kennedy put his head out the door.

Q Yes, the very famous picture --

THE PRESIDENT: That's it — the most famous picture. And then Reagan, interestingly enough, put the bottom on there. He was a big guy, he didn't want to bump his knees under the desk.

I'd never heard of the picture, but it turns out that the picture shows John F. Kennedy's son (sometimes known as John-John, but quite properly called John, especially when the context is clear to listeners, which in this case it obviously was) coming out the door in front of the desk. Am I one of the few people who had never heard of the desk? And if I'm not, wouldn't it have been better to explain the matter to readers? Bush rightly guessed that the journalist who was interviewing him would get the reference, and in any case he was right there to clarify if the journalist seemed confused. But it seems to me that the Bushisms author couldn't fairly make such an assumption.

What's more, why exactly was that line included in the quote, if not to make Bush sound absurd — unfairly so, for the reason I just described? Some commenters suggested that the point of the Bushism may relate to Bush's diction: "where we'll have our picture taken in front of" instead of "in front of which we'll have our picture taken" or "where we'll have our picture taken," plus the unnecessary "is" before "nine other presidents used it." These glitches happen routinely in unscripted speech, even in the speech of intelligent and generally articulate people. Read some transcripts some time, and you'll see a lot of it. Carefully listen to yourself or your articulate friends talk, and you'll hear the same.

But in any event, all these glitches are in the first sentence; the other sentences are quite grammatical. (Some commenters claimed otherwise, but I think they're mistaken.) Why are those sentences included? Some commenters objected to the "us" in the "given to us by Queen Victoria" as a supposed "royal we," but I take it that in context "us" simply means "Americans" (as in "the French gave us the Statue of Liberty").

Some other commenters said the sentences are disjointed, but recall that Bush is discussing items in his office. How do you describe an interesting piece of furniture to someone who's looking at it with you? I'll bet you point to one aspect, say a sentence about it, point to another, say another sentence, and so on. The connections between sentences are provided by your gestures and the listener's examination of the piece; you don't need to worry about sounding disjointed. A few people pointed out that the desk was used by more than nine Presidents — one source reports that it has been all since Hayes except Johnson, Nixon, and Ford — but surely that can't be the Bushism author's point. One commenter suggested that "The author's point: Bush is quite willing and able to prattle on about inane details of a desk. Yet, by many accounts, he demonstrates far less willingness and ability to discuss important policy matters." Yet that hardly seems like a fair way to use the quote; Bush is giving a journalist a tour of his office — aren't Presidents allowed to do that, and to talk about the furniture in the process?

In any case, I still can't see any legitimate reason for the third and fourth sentences to be included. If the inclusion is an attempt to make Bush sound like he's saying something absurd, it's unfair, because it would work only because of the audience's own ignorance of the photo to which Bush was referring, and which is noted in the very next sentence from the transcript. And if it's not an attempt to do that, I have no idea why those sentences were quoted.

Finally, let me stress again: Of course the Bushism item is a joke, and jokes shouldn't held to the same standards of logic or fairness as a newspaper article would be. But it's clear that the joke is meant to make a political point — meant to be something of a criticism. Shouldn't such material pass at least some standard of fairness, like for instance that it not be something that looks absurd (at least to some readers) in context but perfectly sensible in context?

I wanted to ask my readers, of all political stripes, for a small favor. Can you please read the following Bushism of the Day (from today's Slate), and ask yourself: "What do I think is funny, ridiculous, inarticulate, telling, or otherwise noteworthy about it? What point do I think the author of the column was trying to make with it?" Please post the answer to one or both of these questions in the comments.

Please don't do research on this, try to find the context of the quote, talk the matter over with others, or read the other comments before posting your own. I'm genuinely trying to find out (albeit through a highly informal and unscientific survey) how people react to this item.

"Finally, the desk, where we'll have our picture taken in front of — is nine other presidents used it. This was given to us by Queen Victoria in the 1870s, I think it was. President Roosevelt put the door in so people would not know he was in a wheelchair. John Kennedy put his head out the door." — Showing German newspaper reporter Kai Diekmann the Oval Office, Washington, D.C., May 5, 2006

Please don't post comments other than the answers to the questions; I'll post more about this item later today, and you'll have plenty of time to discuss the matter further. Right now, I just want to gather people's reactions to the quote. Thanks very much for your help!

UPDATE: Thanks, got a lot of responses, which very helpful; comments on this post are now closed.

I just ran across this post of mine from a couple of years ago, and thought it might be worth re-posting (my apologies if I thought wrong, but maybe in several generations' worth of improvement, my descendants won't make the same mistake):

I've often heard the argument (buttressed sometimes by citations to the movie Gattaca) that letting parents use genetic technology to boost their babies' intelligence, athletic prowess, or musical ability would make it easier for rich people to improve their kids' genes, which will increase social stratification, as descendants of the poorer people will find it harder to compete. I profoundly disagree with this argument. (I set aside the quite different arguments that certain techniques, especially in their early stages, may have problems that increase the risk of serious genetic defects, and that certain genetic traits help kids at the expense of others -- imagine a gene that makes people resistant to some contagious disease but increases the chance that they'd be asymptomatic carriers.)

1. If you take this argument seriously, it would be largely an argument against private education (and I've heard the argument made this way), since of course private education lets rich parents improve their kids' competitiveness relative to poor kids.

It might even be an argument against smart people deliberately seeking out other smart people to marry, which is basically a lay form of genetic engineering. Would you therefore urge "breeding for equality," in which smart people self-consciously try to marry dumb people, so their kids wouldn't have too much of an unfair advantage? Or how about programs that try to persuade smart men that the feminine ideal should indeed be the dumb airhead woman (and, of course, to persuade smart women that they should marry dumb men)? True, there might be a significant difference in degree between the IQ benefits to be gained by genetic engineering and the IQ benefits to be gained by lay genetics or education. But I stress the "might be," and in any event the principle strikes me as quite similar.

2. Technological progress is on balance very good, and generally speaking it's disproportionately produced by smart people (technologists, businesspeople, and so on). More smart people means more chance of cures for disease, of better transportation and information technology, of space flight, of good environmental inventions, and so on. True, smart people do harm, too; if Hitler had been dumber, the 20th century might have been less bloody. But on balance, I'm pretty sure that it's good for society generally to have more smart people.

3. Most technologies -- computers, CD players, and the like -- start out expensive enough that only rich people or institutions can afford them, but then, with technological development and economies of scale, the price falls, and more and more people can access the technology. Some Americans may be too poor to afford them, but most Americans can afford technology that provides most of the key features. Rich people can still afford better stuff, but the marginal quality difference between what the 90th percentile can afford and what the 50th percentile can afford isn't that vast. (Consider, for instance, personal computers.)

So if you're concerned that only the top 5% will ever afford getting higher IQ for their kids, that seems highly unlikely. And if you're concerned that only the top 70% will afford it, and oppose the technology because of the bottom 30%, then I think you have the wrong set of priorities. Work on ways to eventually make the technology accessible even to the bottom 30%, rather than denying it to the top 70%.

There's an old Soviet joke about the man who visits Hell. (Actually, there are many different Soviet jokes about the man who visits Hell.) In Hell, there are three giant cauldrons in which the sinners are being boiled. On the rim of one stands a regiment of demons, shoulder to shoulder, constantly using their pitchforks to smack down the sinners who are trying to escape. On the rim of the second walk a few demons, who occasionally whack someone down. The rim of the third is empty, but no-one is getting out.

What's going on here?, the visitor asks. "There are three kinds of people," the Devil says. (In the original joke, they are Jews, Russians, and Ukrainians, but in honor of the 2004 Orange Revolution I've sworn off Ukrainian jokes.) "The first kind is in the first cauldron. When one looks like he's trying to escape, all the rest follow him. We need a lot of demons to manage them.

"The second kind is in the second cauldron. Occasionally someone is trying to escape, but the others don't pay any attention. It takes just a few demons to deal with this kind.

"The third kind is in the third cauldron: When one is starting to escape, all the others drag him back down by the ankles."

Don't be that third kind.

A few months ago, I was donating blood here at UCLA; a law student was one cot over from me; and both of us simultaneously noticed that my blood was flowing out faster than hers.

And, no, this wasn't some idle scientific observation. We both really did feel a sense of victory / defeat over it, until we realized how silly that was.

then I don't care if you're offended. Here's an item from the Manawatu Standard (New Zealand):

A mob of angry Chinese students protested at Massey University yesterday after Chairman Mao was lampooned on the cover of the student newspaper.

Students likened the cover of Chaff, which this week satirises women's magazine Cosmopolitan, to the anti-Muslim cartoons circulated around the world in February.

Tempers flared outside Massey's library as about 50 Chinese Massey and UCOL students and a Chinese lecturer confronted Chaff staff.

Students said the issue is racist and the last straw, as many have also suffered verbal abuse on the streets of Palmerston North....

"Chairman Mao is like Jesus to us," he said on the verge of tears....

Yang Chenglin said students are proud of their Chinese culture.

"Mao gave us independence. He's no more a killer than George Washington or George W Bush....

Mao Zedong, or Chairman Mao, was the founder of the People's Republic of China and one of the most prominent figures in Chinese history.

He is also revered as a great spiritual leader and cultural symbol....

Interestingly, the newspaper didn't mention that Mao, unlike George Washington, George W. Bush, or Jesus, is responsible for the deaths of tens of millions of Chinese who died while he ran the country. I hope that's because it assumed that its readers — other than the ones who view Mao like Jesus — would already be aware of that.

(Thanks to FoxNews' Tongue Tied for the pointer.)

Proposition 82, which will be voted on soon in California, would raise taxes on rich taxpayers to fund broader preschool education. There are lots of things to say about it, but here's one item that particularly struck me: The Proposition would require that "by July 2014, all teachers in the new state preschool program must have a four-year college degree. (Researchers estimate that around 30 percent of preschool teachers in California currently have a college degree.)"

How can that possibly be sensible or fair? Teaching and taking care of small children is important work, but a college education seems highly unlikely to make one better at that work. What's more, the degree need not be in anything related to early education. Knowing college-level math, college-level science, college-level English, and the like may be valuable for a lot of jobs. But how is it valuable for teaching preschool-level skills and knowledge?

The Proposition does provide that, "By July 2016, teachers would also need to hold a new early learning teaching credential," which "would likely require an additional year of education beyond a college degree." But even if requiring the credential would be sensible, it doesn't explain why the credential needs to be on top of an unrelated college degree. (The current requirements, according to the ballot pamphlet, are 40 units — about 1 1/4 years of college — of which 24 units must be in early childhood education.)

So as a result, it seems to me that this proposal would raise the cost of education (though it apparently also mandates such cost increases independently of the college degree requirement). It would also shut out of this field lots of excellent caregivers and preschool teachers who don't have a 4-year college degree, who don't want to spend the time to get a college degree, and who might not have the temperaments, skill set, or the cognitive capacity to do well in a 4-year college (not everyone does have such a temperament, skill set, and cognitive capacity, and my sense is that one can be a very good teacher of 4-year-olds without having those attributes). Of course, lots of preschool teachers and would-be preschool teachers do have college degrees, and have done well in college; good for them. But that doesn't tell us that such degrees should be required.

Also, let me ask a legal question: Under current civil rights law, some kinds of policies that are neutral as to race (on their face and in their intentions) may still be illegally discriminatory if they have a substantial disparate impact on members of some racial groups, and don't have enough of a business justification. In fact, the leading case on this, Griggs v. Duke Power Co. (1971), struck down an education requirement — a requirement that janitors have a high school education. Now I think that Griggs was wrongly decided, but it's the law, and in any event the Civil Rights Act of 1991 made clear as a statutory matter that this "disparate impact" theory is viable.

I'm not an expert on this part of employment law, so let me ask people who are: Would programs implemented pursuant to Proposition 82 be similarly vulnerable to a disparate impact claim, if — as I suspect is the case — blacks and Hispanics in California are materially less likely than whites and Asians to have 4-year college degrees? (I am not saying that being a preschool teacher is like being a janitor in most ways. My suggestion is simply that, just as being a good janitor requires some important skills but not the ones that high school teaches, so being a preschool teacher requires other important skills but not the ones that college teaches. Being a preschool teacher isn't easy; I think I'd do horribly at it; but my point is simply that my college degree wouldn't make me, or anyone else, any better at doing such a job.)

If you are knowledgeable about the disparate impact theory, please post your answers in the comments below. (If you aren't knowledgeable about the theory, please feel free to comment on the policy questions I'm discussing, but please avoid speculating about the legal question, which is technical enough that it probably requires technical knowledge to answer.)

Incidentally, I do not think the requirement is so irrational as to violate the Equal Protection Clause. Under that Clause, the legal test for such requirements is very forgiving — one simply has to come up with some conceivable "rational basis" for it, and the theory that college graduates are likely to be on average smarter than non-college-graduates (not always, but on average) would definitely qualify. But to say that a program passes the rational basis test is hardly a high compliment, and surely doesn't tell us that the program is sensible or fair.

Today's Bushism of the Day:

"That's called, 'A Charge To Keep,' based upon a religious hymn. The hymn talks about serving God. The president's job is never to promote a religion." -- Showing German newspaper reporter Kai Diekmann the Oval Office, Washington, D.C., May 5, 2006

Here's the full context:

These are all Texas paintings.... [Discussion of Texas paintings, and also of the paintings of Washington and Lincoln, omitted. -EV]

That's called "A Charge to Keep," based upon a religious hymn. The hymn talks about serving God. The President's job is never to promote a religion. The great thing about America--and Germany, for that matter--is that you should be able to worship freely. I like to tell people, you're equally American whether you're a Jew, Muslim, Christian, or atheist--you're equally all Americans--and that if we ever lose that, we begin to look like the Taliban.

I understand, in parts of Europe, some scoff at my faith. It doesn't bother me. But I happen to believe, for me at least, faith is one way to make sure that my values stay intact and that I keep life in proper perspective, which is a very important part, in my judgment, of being a good decisionmaker.

Sounds to me like the President was showing a foreign journalist around the Oval Office. While showing the journalist the paintings and explaining what they meant to him, Bush came to this painting (thanks to BAGnewsNotes for the pointer) and noted that its title was based on a religious hymn that Bush apparently finds inspirational. He then realized that this reference to religion might draw criticism from some (especially by foreigners who aren't fully aware of how American political life works); and he thought it would be good to point out that the President generally ought not promote a religion, but is entitled to be influenced by his religion. It's hard for me to see anything particular inarticulate, unwise, choppy, inexplicable, or even funny about this.

But in any case, doesn't the quote seen in context -- with an explanation for why he was talking about the painting, and with more details of what he was trying to say about religion -- seem different than the quote provided out of context?

A nifty new(ish?) phrase I just heard.