The Volokh Conspiracy

Ambiguous/Surprising/Unintuitive Periodical Titles:

I just came across an article in Graft, which turns out to be a journal about organ and cell transplantation. It reminds me of once running across Bridge Magazine, which is related to arts and the disabled. (There are other magazines with that name, too.) I once saw a reference to Reentry Magazine, which is of course aimed at people who work in the parole system, though I haven't found further evidence of this journal's existence. Any other suggestions?

And, yes, I realize the category is not crisply defined. But you get my drift, I'm sure.

"Nevada in Danger of Losing Its Respectability":

So writes Jacob Sullum, in Reason's Hit & Run:

[T]he group opposing the [Nevada marijuana legalization] initiative is called the Committee to Keep Nevada Respectable. Gambling, prostitution, and 24-hour liquor sales are one thing, but pot smoking? That would really give the state a licentious reputation.

Sullum's post is actually primarily about a recent survey that shows surprising support for the initiative.

NAACP Chapter Claims That It's Illegal for Jewish-Owned Medical Clinic to Close Saturdays:

So at least it appears from this news story; I'm trying to get my hands on the exact complaint, but so far I haven't gotten it. (If anyone knows more about this, please let me know.)

The [Spring Valley, New York] chapter of the NAACP has filed a complaint accusing the Ben Gilman Medical and Dental Clinic of religious discrimination for closing on Saturdays.

The complaint, filed Sept. 6 with the state's Division of Human Rights, alleges that the clinic's practice of remaining closed Saturdays in observance of operators' Jewish Sabbath, unlawfully imposes their religious beliefs on others....

Willie Trotman, president of the Spring Valley branch of the National Association for the Advancement of Colored People, said the purpose of the complaint was to have the clinic open on Saturdays.

Those who work -- more than 80 percent of the clinic's clientele are Hispanic or black, according to a letter the clinic sent to the Human Rights Commission earlier this year -- would find it convenient to visit their doctors on a Saturday when they had the day off, Trotman said yesterday....

Because the complaint is confidential, [county Human Rights Commissioner S. Ram] Nagubandi could not comment on its specifics. However, he confirmed that a complaint had been filed by the NAACP and said his office -- acting as an agent for the state's Division of Human Rights -- would investigate the matter....

In a copy of the complaint provided by the NAACP, Hoffman, Milner and the clinic were said to "invoke their religion" in order to engage in "disparate treatment" of people of different faiths. It also alleges that the respondents failed to accommodate other religious beliefs....

If the complaint is as the newspaper describes it, then it's quite legally unfounded -- in fact, its theory is itself religiously discriminatory.

Some religious discrimination laws likely do bar clinics from discriminating against patients based on the patients' religious beliefs. Some of them (though not the relevant federal and New York laws) might require clinics to take steps to accommodate patients' religious beliefs, by exempting patients from clinics' generally applicable rules when the rules violate the patients' religious beliefs and the exemption isn't that burdensome on the clinic. (For instance, if a clinic requires patients to be photographed for their files and a patient has a sincere religious objection to such a requirement, the clinic may be required to exempt the patient from that objection unless there's a really important reason for the photograph.) But closing Saturdays neither treats patients differently because of their religion, nor requires patients (as a condition of getting service) to do something that violates their own religious beliefs.

Moreover, clinics are entirely free to close Saturdays just because the doctors (like people in other businesses that are closed weekends) want the day off. And if they're free to close Saturdays for secular reasons, they're equally free to close Saturdays for religious reasons. Allowing clinics to close for secular reasons but not religious ones (on the spurious grounds that closing Saturdays "unlawfully imposes their religious beliefs on others") would be discrimination against religion, since it would treat religiously motivated conduct worse than identical secularly motivated conduct.

Nor does the fact that the doctor's office gets federal funds, which the story also mentions as a basis for the NAACP chapter's complaint, change the analysis. The federal government might be able to require that offices that get federal funds remain open six days a week, regardless of their motivation for closing, and this might lead to a religious accommodation demand on the part of the doctors, likely citing the federal Religious Freedom Restoration Act. But in the absence of such a requirement, doctors remain free to close whatever days they please, whether they want to close Wednesdays to play golf, Saturdays or Sundays to play with their kids, or Saturdays to observe the Sabbath.

Thanks to Joel Grossman for the pointer.

Fred Goldman's Attempt to Seize O.J.'s Right of Publicity:

The Complaint is here, and it's very interesting. The theory is simple: O.J. owes Goldman, according to the Complaint, $38 million (the original $19 million wrongful death award plus interest). O.J. has a valuable asset -- his right of publicity, which is to say the right to distribute merchandising containing his name, likeness, signature, voice, and the like (e.g., autographs, T-shirts, coffee mugs, and the like), the right to license these items for merchandising, and the right to license these items for advertising. Goldman, the theory goes, may therefore seize the asset to help satisfy the judgment, just like he could seize real estate, tangible property, patents, copyrights, and the like.

If Goldman prevails, then Goldman would presumably be able to license people to make O.J. T-shirts and the like, and to sell them. He could license the use of O.J.'s name and likeness in commercials (the licensee couldn't force O.J. to act in the commercials, but it could use preexisting pictures, hire lookalikes, and so on). He could license O.J.'s names and likeness for derogatory uses (O.J. toilet paper?), though some such derogatory uses might already be permissible to everyone (not just the holder of the right to publicity or his licensees) under the not-yet-fully-established parody / transformative use exception to the right.

He could also stop O.J. from doing all these things, since O.J. would no longer own his own right of publicity (just as an author who loses the copyright in his work is no longer allowed to make copies or derivative works of the work). And of course Goldman could also just refuse to license or sell anything -- even if the right is seized to help satisfy O.J.'s monetary obligation, once Goldman owns the right he has no obligation to make money from it -- but keep others, including O.J., from doing the same.

It's an interesting theory, and it sounds credible to me, especially if the right of publicity is treated as a property right akin to copyright or patent. Yet it does seem a little weird, especially given that the likeliest use of the seizure will be simply to stop O.J. or anyone else from making any money from his right of publicity, without making any extra money for Goldman, who I doubt really wants to make a living off O.J. memorabilia (unless he does want to go into the O.J. toilet paper business). Do any of our readers have expertise on the subject that they'd like to share?

Parents' Rights, Teenagers, and Blood Donation:

I just gave blood today, and thought about how it would be good to one day persuade my kids to do the same. Naturally, this should happen only when they're physically big enough to safely donate, by which time they should be old enough to appreciate what they're doing and why it's good. But I'd like to start as young as possible, given these constraints, since I think it'll be a valuable educational experience, and may encourage good habits and attitudes. And my sense is that, setting aside size and unusual health conditions, such a donation would basically be perfectly safe.

So I wondered: To what extent would I be legally allowed to engage in this sort of parental education? Various Web sites report that many states set a minimum age of 16 or 17, and that strikes me as an unwarranted interference with parents' choices. But my quick look at California law discovered only a provision that specifically allows donation with parental consent at age 15 or older (and without consent at 17 or older), and doesn't specifically prohibit donation at an earlier age. Can anyone point me to laws (in California or elsewhere) that do indeed prohibit donations, even with a parent's consent (possibly with exceptions for emergency targeted donations)? Is there some other reason why blood banks would be reluctant to accept donations from minors who have the parent's consent? Is there some argument that I'm missing for why such donations should be barred?

By the way, I don't think that such prohibitions are unconstitutional (though I suppose that under Pierce and Meyer a decent though not overwhelming case could be made in favor of that position), just that they are -- unless I'm missing some important objection -- improper intrusions into a legitimate parental decision about the child's moral education.

Fake Online Profiles Prompt Call for Reviving Criminal Libel Law:

The Bergen Record reports:

Assemblyman Kevin O'Toole, R-Wayne, has drafted a bill making it a crime to knowingly post false information about another individual on a Web site. [The text has not yet been finalized, so I couldn't get my hands on it -EV] ...

In February, someone created a phony profile of 12-year-old Monirae Hickey of Nutley on MySpace.com, posting her name, cellphone number and a photo of a provocatively dressed woman; the page said she was a stripper. As a result, the girl was barraged with phone calls....

For a bit more on the constitutional status of criminal libel laws, see here.

The Pope's Speech Quoting Harsh Criticism of Islam.

It's been in the news, so I thought I'd pass along the text — I had decided that I ought to read it, and I thought others might want to as well. Here's the most relevant excerpt:

I was reminded of all this recently, when I read the edition by Professor Theodore Khoury (Münster) of part of the dialogue carried on - perhaps in 1391 in the winter barracks near Ankara - by the erudite Byzantine emperor Manuel II Paleologus and an educated Persian on the subject of Christianity and Islam, and the truth of both. It was presumably the emperor himself who set down this dialogue, during the siege of Constantinople between 1394 and 1402; and this would explain why his arguments are given in greater detail than those of his Persian interlocutor. The dialogue ranges widely over the structures of faith contained in the Bible and in the Qur'an, and deals especially with the image of God and of man, while necessarily returning repeatedly to the relationship between - as they were called - three "Laws" or "rules of life": the Old Testament, the New Testament and the Qur'an. It is not my intention to discuss this question in the present lecture; here I would like to discuss only one point - itself rather marginal to the dialogue as a whole - which, in the context of the issue of "faith and reason", I found interesting and which can serve as the starting-point for my reflections on this issue.

In the seventh conversation (διάλεξις - controversy) edited by Professor Khoury, the emperor touches on the theme of the holy war. The emperor must have known that surah 2, 256 reads: "There is no compulsion in religion". According to the experts, this is one of the suras of the early period, when Mohammed was still powerless and under threat. But naturally the emperor also knew the instructions, developed later and recorded in the Qur'an, concerning holy war. Without descending to details, such as the difference in treatment accorded to those who have the "Book" and the "infidels", he addresses his interlocutor with a startling brusqueness, a brusqueness which leaves us astounded, on the central question about the relationship between religion and violence in general, saying: "Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached". The emperor, after having expressed himself so forcefully, goes on to explain in detail the reasons why spreading the faith through violence is something unreasonable. Violence is incompatible with the nature of God and the nature of the soul. "God", he says, "is not pleased by blood - and not acting reasonably (σὺν λόγω) is contrary to God's nature. Faith is born of the soul, not the body. Whoever would lead someone to faith needs the ability to speak well and to reason properly, without violence and threats... To convince a reasonable soul, one does not need a strong arm, or weapons of any kind, or any other means of threatening a person with death...".

The decisive statement in this argument against violent conversion is this: not to act in accordance with reason is contrary to God's nature. The editor, Theodore Khoury, observes: For the emperor, as a Byzantine shaped by Greek philosophy, this statement is self-evident. But for Muslim teaching, God is absolutely transcendent. His will is not bound up with any of our categories, even that of rationality. Here Khoury quotes a work of the noted French Islamist R. Arnaldez, who points out that Ibn Hazm went so far as to state that God is not bound even by his own word, and that nothing would oblige him to reveal the truth to us. Were it God's will, we would even have to practise idolatry.

I read the whole piece, and it struck me that it would have been more apt if it had also discussed why it was that the Christian world had on many occasions turned to "spreading the faith through violence." But of course the reaction to the speech would have been more apt if it hadn't included calls for silencing the Pope through violence; and the difference between these two inaptnesses is quite vast.

UPDATE: Stuart Buck, in comments, pointed to a post that pointed to what seemed to be a more accurate, and nontrivially different translation (note the inclusion of "a brusqueness which leaves us astounded").

FURTHER UPDATE: On the other hand, commenter Dylanfa reports that "Slate claims the 'which leaves us astounded' language was added to the transcript after the controversy as damage control, and was not actually in the speech as given, which simply noted 'brusqueness.'" UPDATE ON MONDAY: Slate has withdrawn this assertion.

YET FURTHER UPDATE: Stuart Buck reports that the speech as given did have the "astounded" language, and points to the German-language video/audio file (the Pope on YouTube — is this a great decade, or what?). Stuart doesn't speak German himself, but is relying on a translation provided by Prof. Horace Hodges. If there are German-speaking readers who can shed light on this, I'd love to hear about it. (UPDATE: I asked Sasha, who knows German, and he agrees with Prof. Hodges' translation.)

In the meantime, Ben Brumfeld points to a Wikipedia piece on the translation differences between the German and the English texts; the Wikipedia author appears to have verified at least one of the differences using the audio:

Commenting on a quote from the Byzantine emperor, Pope Benedict states in the English translation of his lecture, "he addresses his interlocutor with a startling brusqueness". According to the German text the Pope's original comment was "He addresses his interlocutor in an astoundingly harsh — to us surprisingly harsh — way" (wendet er sich in erstaunlich schroffer, uns überraschend schroffer Form).[5]

This difference was corrected on 17 September. The official (though still "provisional") passage now reads: "he addresses his interlocutor with a startling brusqueness, a brusqueness which leaves us astounded". (emphasis in original)

Another difference involves the use of the word "jihad", which is present in the German version but not in the English one: the original statement "The emperor touches on the theme of jihad, holy war" (kommt der Kaiser auf das Thema des Djihad, des heiligen Krieges zu sprechen) became in the English rendition "The emperor touches on the theme of the holy war."

A third difference involves the emperor's quote employed by the Pope: "...things only evil and inhuman...". What the Pope said, and which is found in the German text and verifiable with the audio from the lecture, was "... things only bad and inhumane ... ". The word used was "Schlechtes" (bad/wicked), whereas the English word "evil" would have corresponded to "Böses", a word the Pope did not use. Similarly, the German word "inhuman" (inhumane) was used, and not "unmenschlich" (inhuman).

My Name's Cameo Appearance:

Several people have e-mailed to ask about this, and How Appealing posted about it, so I thought I'd briefly note it: "Eugene Volokh" was indeed the name of an (entirely off-screen) security guard character mentioned briefly in this week's season premiere of Boston Legal. Was it a coincidence?, some asked. There are no coincidences! As some gathered, it was a shout-out from a friend of mine who writes for the show, and whom I gave some tips about a legal plot twist. And, yes, I'm available for such consulting to others; I'd actually done it before on several occasions, though this is the first acknowledgment like this that I've gotten.

Senator/Colonel/Judge Graham and the Incompatibility Clause:

The U.S. Court of Appeals for the Armed Forces held yesterday, in U.S. v. Lane, that appointing Senator Lindsey Graham — a colonel in the reserves — as a military appellate judge violated the Incompatibility Clause of the Constitution ("no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office"). The appellate panel's decision upholding Airman Lane's conviction was therefore reversed, and the appeal was remanded for reconsideration by a properly constituted panel.

No Hostility to Religion Here! We Just Need to Discriminate Against Religious Speech To Insulate Society from the Excesses of the Zealous:

Judge Karlton's concurrence in Faith Center Church (see also the post below) argues — right after concluding that "religious speech is categorically different than secular speech and is subject to analysis under the Establishment and Free Exercise Clause without regard to the jurisprudence of free speech":

Those, like myself, who advocate adherence to the strictures of the Establishment Clause, do so not out of hostility towards religion. Rather, we are motivated by recognition of the passions that deeply-held religious views engender, and the serious threat of marrying those passions to government power.

So far so good, though it's not clear how giving religious groups the same access to free library meeting groups that secular groups have — or giving religious groups equal access to a wide range of evenhandedly distributed benefits, such as nonprofit status, the charitable tax exemption for donations to charitable groups, and more — involves "marrying [religious] passions to government power." The judge goes on:

That threat is not merely historic. One need only look about the world to see that danger in play. The scenario is the same whether it is in Northern Ireland where Catholics and Protestants kill each other in an effort to establish governmental power, in Israel, where Jews and Muslims do the same, in Iraq, where Shi’a and Sunni are engaged in similar slaughter, or in Sudan where Muslims murder Christians. Nor is that the only danger.

Again, it's not clear that evenhanded treatment of all religious groups alongside secular groups in access to government benefits has much to do with conditions that lead Catholics and Protestants to kill each other. Likewise, when the judge goes on to say, "Where government plays a role in the religious life of a pluralist society, there is the danger that government will favor the majority religion and seek to control or prohibit the rites of minority religions. Such favor can only lead to alienation and social unrest," I can't see how a rule of equal treatment for all religious groups alongside secular groups would create such a danger.

But then the judge moves on:

The wall of separation between church and state that Thomas Jefferson thought the First Amendment raised, in no way prejudices the practice of anyone’s religion. Instead, it serves the salutary purpose of insulating civil society from the excesses of the zealous. The Good News Club and Lamb’s Chapel majorities’ disdain of the Jefferson model is premised on the belief that religious values enhance rather than endanger society. The legal issue, however, is different. It asks whether one can distinguish between religious speech in a categorical way, and the answer is yes. Of course there may be close cases. Such cases require the development of a delicate jurisprudence designed to protect the Establishment Clause while insulating religious practice from government intrusion.

So the judge has no hostility towards religion, but "the excesses of the zealous" — apparently just the religiously zealous — are something that must be avoided even by discriminatorily excluding religious groups from the benefits available to comparable secular groups.

The issue is not, contrary to what the judge argues here and earlier in the opinion, "whether one can distinguish between religious speech" (which I take it means "between religious speech and nonreligious speech," especially given the other quotes I give immediately below), nor is it about "the High Court's purported inability to distinguish betwen a sermon and a speech" or "[t]he purported inability of the High Court to adhere to the distinction embodied in the First Amendment" between religious speech and nonreligious speech, nor about the Court majority's supposed "doubt about the ability to distinguish between religious practice and secular speech." While the majority opinion does turn on whether courts can consistently distinguish (without undue side effects) between religious worship and other religious speech, of course the courts could distinction between religious speech (such as sermons) and secular speech.

The question is whether courts ought to draw such a distinction, in a way that strips religious speech of the same Free Speech Clause protection that secular speech has, and thus discriminates against religious speech, in order to somehow "insulat[e] civil society from the excesses of the zealous." It seems to me that if one really wants to avoid "hostility towards religion," equal treatment of religious speech and nonreligious speech — regardless of what one fears from the "zealous" — is the proper approach.

Government Must Exclude Religious Speech from Government Property, Writes Federal Judge

-- it says so right there in the First Amendment. Well, somewhere in there. Doesn't it?

Here's the key excerpt from near the start of Judge Karlton's concurrence in Faith Center Church v. Glover, a case in which the majority concludes (based on a more plausible argument, though one I think is still ultimately mistaken) that a library may exclude "religious worship" from a policy that opens library rooms broadly to "meetings, programs, or activities of educational, cultural, or community interest":

This should be a simple case it asks whether the county can be forced to subsidize a religious organization’s prayer meetings by requiring it to provide the religious organization with a free place to worship. A quick reading of the First Amendment to the Constitution of the United States should answer the question. Judge Paez’s opinion tracks the cases and reaches its laborious result because the law has so elaborated that the reaching of the conclusion requires the effort the opinion demonstrates. As I now explain, that elaboration is premised on a failure to accept the plain meaning of the First Amendment.

Both Good News Club v. Milford Cen. Sch., 533 U.S. 98 (2001) and Lambs Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993), turn on the High Court’s purported inability to distinguish between a sermon and a speech. That distinction, however, is compelled by the First Amendment, which establishes different standards relative to government action concerning speech and government action concerning religion. The purported inability of the High Court to adhere to the distinction embodied in the First Amendment leads it to conclude that the issues tendered by cases, such as the one at bar, implicate viewpoint discrimination under the free speech provisions of the First Amendment. They simply do not. As the First Amendment notes, religious speech is categorically different than secular speech and is subject to analysis under the Establishment and Free Exercise Clause without regard to the jurisprudence of free speech.

This is quite a remarkable and, in my view, entirely unsound argument. Consider the text of the relevant part of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press ....

A "quick reading" of the "plain meaning" of the text reveals, I think, two relevant things. First, the Amendment bars "establishment of religion," a term that is hardly self-defining. At the very least, it's far from obvious that including religious speakers evenhandedly among many nonreligious beneficiaries of a government program -- including religious speech and even worship within the category of "meetings, programs, or activities of educational, cultural, or community interest" -- constitutes an "establishment of religion." There's just nothing "plain" about the meaning; some (though a minority on the Court) have read the phrase this way, but it's hardly something that a "quick reading" reveals.

But a quick reading does reveal that the First Amendment protects "freedom of speech," with no limitation to "secular speech." That the pre-semicolon part of the Amendment protects "the free exercise" "of religion" hardly "plain[ly]" keeps the post-semicolon part from protecting "speech" and "press" both secular and religious. It's certainly quite sensible to read the first clause as the Court has read it -- protecting the exercise of religion generally (whether against discriminatory burdens or against all burdens), including religious conduct as well as religious speech, and limiting the stablishment of religion (whatever that means) -- and at the same time to read the second clause as the Court has read it, which is protecting speech generally, including nonreligious speech as well as religious speech.

One may surely argue for the "wall of separation between church and state" interpretation of the Establishment Clause (which Judge Karlton later endorses), or the particular subinterpretation under which this "wall" mandates discriminatory exclusion of religious speech from generally available programs. One may even argue, though few Justices have, that religious speech cases should be analyzed "without regard to the jurisprudence of free speech." But most certainly this is not an argument that can be gotten simply through a "quick reading" that grasps the provision's "plain meaning."

Name of the Day:

Contra Costa County Board of Supervisors Member Federal D. Glover. OK, he's actually not a federal officeholder, but it's still pretty cool (and he still has time). Only thing better would be Fœderal.

Michiko Kakutani Criticizes Judge Posner's New Book:

Here's the review. I haven't read the book, and for all I know the book it might be unpersuasive, but the review did not strike me as particularly apt even focusing only on what's within the review's own four corners.

Consider, for instance, this:

Many of Judge Posner’s arguments in this book are riddled with self-serving contradictions. While he declares that “the Bill of Rights should not be interpreted so broadly that any measure that does not strike the judiciary as a sound response to terrorism is deemed unconstitutional,” he also argues that “a constitutional right should be modified when changed circumstances indicate that the right no longer strikes a sensible balance between competing constitutional values, such as personal liberty and public safety.”

Where exactly is there a "contradiction" here (as opposed to a constitutional judgment that the reviewer disapproves of)? Judge Posner is arguing that judges shouldn't strike down government action just because they think the action is unsound; he also argues that judges should uphold government action when they think it is sound. It's true that he's not calling for, say, consistent textualism, under which judges may not depart from the text either in the direction of more constraint of the government or less; he seems to be pointing, at least in the quoted materials, towards an "evolving Constitution" that evolves (at least in some measure) in the direction of more deference to government in matters of national security. But where's the contradiction in that?

The next example of "self-serving contradiction[]" is this:

In another chapter, which discusses warrantless eavesdropping by the N.S.A., Judge Posner shrugs off the concern that government scrutiny of private communications could lead to embarrassment, intimidation or blackmail of the administration’s opponents. While he acknowledges that “such things have happened in the past,” he says that “they are less likely to happen today” because factors like “the growth of a culture of leaking and whistle-blowing” and “more numerous and competitive media” have converged “to make American government a fishbowl,” and “secrets concerning matters that interest the public cannot be kept for long.”

Later in the book, however, he suggests that people’s privacy (regarding information collected by government data mining) would be better protected if there were more restrictions placed on the news media and “the principle of the Pentagon Papers case” were “relaxed to permit measures to prevent the media from publishing properly classified information.”

Aha! Except where's the aha? It's true that Posner is relying on an active press to expose government blackmail, but at the same time willing to restrain the press when it's publishing classified information. At least these two suggestions do point in some measure in different directions, but that hardly makes them "contradictions": Posner is willing to see some fairly narrow extra restrictions on the press, and doesn't think that such restrictions will generally interfere with the press's ability to check government "embarrassment, intimidation or blackmail" that uses government-gathered private communications — an ability that can often be exercised by the press without publishing classified information. At most Ms. Kakutani has identified an example of a Posner proposal (a limit on publishing "properly classified information") that might in some measure limit the checks needed to make another proposal (more government power to engage in warrantless eavesdropping) less threatening. This is worth noting, but it hardly involves a "self-serving contradiction[]" on Posner's part.

Ms. Kakutani goes on to write that "By the end of this chilling book, the reader realizes that Judge Posner is willing to use virtually any argument — logical or not — to redefine constitutionally guaranteed rights like freedom of speech during wartime." The reader naturally expects some examples of illogical arguments of Posner's (since trying to redefine constitutionally guaranteed rights using logical arguments doesn't sound that bad). Here is what the reviewer gives us:

For instance, he expresses irritation with the Supreme Court’s 1969 Brandenburg ruling, which stipulated that speech advocating violence or other criminal conduct cannot constitutionally be suppressed unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Although Judge Posner writes that “in the present circumstances the enactment of laws forbidding radical Islamist expression would be needlessly provocative,” he ominously adds that “the situation may change” and that he believes “the incitement/threat category could be expanded” to include “generalized advocacy of violence against the United States.”

In his opinion, he says, “to tell Congress and the president that they can do nothing to prevent forms of advocacy likely to multiply the number of future terrorists makes no more sense than telling them that they cannot prevent the publication of recipes for bioweapons because it would probably take years to get from the recipe to the actual manufacture, let alone use, of the weapons.”

Judge Posner believes that “additional counterterrorist measures, in particular in the related areas of electronic surveillance and computerized data mining, could be taken without violating the Constitution (even if there were a clear constitutional right to informational privacy), especially if the effect on privacy is minimized by a strict rule against using information obtained through such means for any purpose other than to protect national security.” And he writes that “coercive interrogation up to and including torture might survive constitutional challenge as long as the fruits of such interrogation were not used in a criminal prosecution.”

Again, there's plenty here that reasonable people would disagree with; but where in all of these examples is an argument that's illogical? How is it illogical to argue that advocacy of certain violence, including nonimminent violence, should be unprotected? I don't take this view (which is in some ways closer to the European approach to free speech protection, in which advocacy of nonimminent harm — especially of racial hostility, discrimination, and violence — is unprotected, than to the American), and I've criticized those who have urged it or adopted it. But what's illogical about it?

Likewise, there's nothing illogical about the arguments for broader surveillance or coercive interrogation. One can respond to these arguments on the merits; but the reviewer doesn't do that — she simply relies on the assertion that these particular arguments are evidence "that Judge Posner is willing to use virtually any argument — logical or not — to redefine constitutionally guaranteed rights like freedom of speech during wartime."

There's more, for instance the reviewer's claim that Judge Posner has "a distinctly cynical outlook that imputes the most mercenary of motives to everyone from journalists to judges: just as Judge Posner has asserted that the media merely pander to the demands of their audiences rather than striving to inform the public, so he suggests in these pages that justices simply 'make up constitutional law as they go along,' following subjective criteria instead of striving to uphold principle and precedent." How is the claim that a judge is deciding based on subjective criteria a claim of "the most mercenary of motives"?

Likewise, consider the claim that "Judge Posner appears to see the Constitution as a fantastically elastic proposition that can be bent for convenience’s sake. 'The greater the potential value of the information sought to be elicited by an interrogation,' he writes, 'the greater should be the amount of coercion deemed permitted by the Constitution. The Constitution contains no explicit prohibition of coercive interrogation, or even of torture, to block such an approach.'"

The trouble is that — especially given a later quote that shows that Judge Posner would bar "the fruits of [coercive] interrogation [from being] used in a criminal prosecution" — Judge Posner's statement that "[t]he Constitution contains no explicit prohibition of coercive interrogation, or even of torture, to block such an approach" is quite correct, and does not at all rely on the Constitution's supposed "fantastic[] elastic[ity]": The Constitution indeed doesn't explicitly prohibit coercive interrogation, so long as the interrogation doesn't involve the person's "be[ing] compelled in any criminal case to be a witness against himself." It may well be that the Constitution should be read as prohibiting coercive interrogation; the Court has certainly so held, and one can read some general concepts, such as "due process" (or for that matter the Ninth Amendment) to include this. But such a reading, even if right, probably requires more "elastic[ity]" than Posner's assertion that "The Constitution contains no explicit prohibition of coercive interrogation, or even of torture, to block such an approach" — an assertion that, if mistaken, is mistaken because it treats the Constitution's text as too rigid, not as too elastic.

So the review is not an impressive piece of work, it seems to me. Again, Judge Posner's arguments may well be unsound, but the review certainly doesn't prove it, or even seem to try hard to prove it (as opposed to using pejoratives to assert it).

Jeff Jacoby on the Violent Response by Some Muslims to the Pope's Speech:

"[T]he real insult to Islam is not a line from a papal speech or a cartoon about Mohammed. It is the violence, terror, and bloodshed that Islamist fanatics unleash in the name of their religion -- and the unwillingness of most of the world's Muslims [which I read as referring primarily to influential Muslims, not the average Muslim who's not in much of a position to do much -EV] to say or do anything to stop them."

My Heart Bleeds Over This Outrageous "Harass[ment]":

The Great Falls Tribune reports:

The arrival of a white nationalist family, including 14-year-old twins who perform music as the group Prussian Blue, has prompted neighbors to distribute fliers that say, “No hate here.”

Lamb and Lynx Gaede, their mother April and stepfather Mark Harrington moved to Kalispell from Bakersfield, Calif., which was “not white enough,” April Gaede told ABC’s “Primetime” in a show that aired last fall....

[Neighbors recognized the Gaedes from the television program, and] printed information sheets about the family and went door-to-door passing them out.

“This letter is not written as a means to harass the family or to begin a witch hunt,” the flier said. “We wish the family no harm. Our goal is to peacefully communicate that this kind of hate and ignorance will not be accepted here in our neighborhood where we live and raise our families.”

“No hate here,” is printed on the one side of the brightly colored fliers. Residents were asked to display the signs in their windows.

Prussian Blue’s music includes a song called “Sacrifice,”which praises Nazi leader Rudolf Hess, a deputy to Adolf Hitler. The girls have performed at rallies for white nationalist causes.

“The music that Prussian Blue performs is intended for white people,” the girls’ Web site says. “They hope to help fellow Whites come to understand that love for one’s race is a beautiful gift that we should celebrate.” ... [T]he police said the family called to say they were being harassed by the neighbors’ efforts to post fliers. Officers explained that the neighbors’ free speech rights made distributing the fliers legal.

I'm with the officers -- and the neighbrs -- on this one. If you praise Nazis, don't expect your neighbors to welcome you with open arms, or to sit quietly by as you publicly explain that you're moving next to them because they're "white enough" for you. You have the right to speak your mind. They have the right to speak theirs, and to remonstrate with you over your views.

Intimate Association, Fraternities, and Government Subsidies:

The Foundation for Individual Rights in Education points to a decision from last month that I hadn't noticed before:

Last month, Judge Dora L. Irizarry issued a preliminary injunction requiring the College of Staten Island (CSI) to officially recognize Chi Iota Colony of Alpha Epsilon Pi (AEPi), a Jewish fraternity (Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 2006 U.S. Dist. LEXIS 56257 (E.D.N.Y. 2006)). Prior to the injunction, CSI’s Office of Student Life had refused to recognize AEPi, insisting that doing so would “contravene[] the College’s non-discrimination policy” because of AEPi’s constitution, which requires the group’s membership to be male.

But citing the fraternity’s status as “an organization that promotes congeniality and a supportive social structure for male students,” Judge Irizarry found that CSI’s refusal had likely violated the fraternity’s First Amendment right to freedom of intimate association.

Indeed, Judge Irizarry’s focus on fraternity membership as a protected form of “intimate association” is what’s most interesting about this ruling, because classifying fraternities and sororities as types of intimate association affords Greek organizations at public schools a new constitutional protection against hostile administrators.

The Supreme Court has indeed recognized a right of intimate association, which protects people's choices of whom to let into their (relatively) small and selective groups. I'm generally free to decide whom to invite to dinner, or whom to choose as a roommate, even if I discriminate based on race, sex, religion, sexual orientation, or what have you, and even if some law purports to regulate my decision. This right doesn't extend to broad, not very selective groups like the Jaycees, but it does extend to some smaller and more selective clubs.

But here New York wasn't trying to ban single-sex groups — the City University of New York (College of Staten Island) simply has a policy of recognizing only groups that don't discriminate based on (among other things) sex, and thus denies them access to university facilities, services, bulletin boards, centralized mailbox, funding, and some other benefits. The University is thus just choosing not to fund certain exercises of a constitutional right to intimate association. (An unusual choice, since to my knowledge most Universities offer such benefits to single-sex fraternities and sororities — as they are clearly constitutionally free to do — but unusual choices aren't unconstitutional just because they're unusual.)

And generally speaking, the government is perfectly free not to fund the exercise of a constitutional right, even when it funds other activity (including activity that's in some ways an alternative to that exercise of a constitutional right). Consider some examples ("need not" below means "has no federal constitutional obligation to"):

Right to abortion	New York may not ban abortions,	but it need not pay for them with state funds, or allow them to be performed at state-run hospitals	even if it chooses to pay for childbirth.
Right to free speech	New York may not ban advocacy of a candidate or a legislative proposal,	but it need not subsidize it through the charitable tax exemption	even if it subsidizes non-electioneering, non-lobbying speech through the charitable tax exemption.
Right not to marry	New York may not require people to marry,	but it need not give unmarried couples or platonic roommates special dorm housing,	even if it subsidizes married couples by offering such housing.
Right to privately educate one's children	New York may not ban private education,	but it need not pay for private education,	even if it pays billions for public education.

For more on these examples, see my Freedom of Expressive Association and Government Subsidies, 58 Stanford Law Review 1919 (2006), which discusses all this in the context of the right to expressive association rather than intimate association.

Now there are some exceptions to this No Duty To Subsidize Constitutional Rights principle. The government may not discriminate based on people's religiosity; it in many situations may not discriminate based on the viewpoint of people's speech; and under some jurisdictions' statutes and constitutional provisions (it's not clear whether New York would be one such jurisdiction), the government may not exclude people from at least some subsidies when that burdens their religious practice. But none of these exceptions are in play here: Though the fraternity is Jewish, it's not claiming that excluding women is part of its religious practice, or that the government is targeting the fraternity because it's Jewish (or more broadly because it's religious). And while obviously both the fraternity's and CUNY's actions are founded on the fraternity's and CUNY's viewpoints about single-sex organizations — as all actions are founded on the actor's viewpoint about the propriety of the action — CUNY's action definitely does not treat groups differently based on the viewpoints that they express through their speech, which is what it takes to make CUNY's action viewpoint-based. (Again, for more on this, see here.)

All we have here is a government choosing not to offer government benefits to support the exercise of a constitutional right — and whether that's the right to abortion, to private education, to speak, not to marry, or to intimately association, the U.S. Constitution leaves the government free to do that. The government's choice here may be faulted as taking antidiscrimination logic to extremes, as undermining a useful form of private association, or as being intolerant of genuine diversity. But it's not unconstitutional.

UPDATE: A commenter suggests that the government may not limit access to government property to people exercising their constitutional rights, even if it may limit access to funds. But the Court has (in my view rightly) generally treated access to property the same as it treats access to other benefits. The government may choose not to pay money to subsidize abortions; but it may also choose not to let public hospitals be used for abortions, even if the doctor and patient offer to pay for access. The government may choose to let public schools but not private schools have access to certain government property (e.g., school classrooms after hours). A university may choose to open space in classrooms after hours to certain speakers (e.g., student groups) but not other speakers (e.g., nonstudent groups, no matter how constitutionally protected those nonstudent groups might be), or to certain subject matters but not other equally constitutionally protected subject matters.

The one exception is government "traditional public forum" property -- parks, sidewalks, and streets -- but that isn't involved here.

Online Talk (in a Virtual World) on Bloggers and Liability:

Stanford Law School Center for Internet and Society Associate Director Lauren Gelman will be teaching a a class in There.com on Bloggers and Liability; it's described here, and you can download the required software here. Today's class (5:30 Pacific) will be mostly on the First Amendment and Thursday's class (also 5:30 Pacific) will be mostly on copyright.