Roanoke, Virginia City Code Sec. 21-144(a) provides that "It shall be unlawful for any person to administer, for hire or reward, to any person of the opposite sex, any massage, any alcohol rub or similar treatment, any fomentation, any bath or any electric or magnetic treatment." Another section excepts medical massages (assuming that this exception is clear enough and narrow enough to avoid swallowing the rule), and "barbers or beauticians who give massage to the scalp, face, neck or shoulders only." Constitutional, or a violation of the Equal Protection Clause prohibition on sex classifications?

Note that a man and a woman were recently convicted for violating this ordinance; their massage seemed sexual, but the ordinance isn't limited to sexual massages. Same-sex marriage naturally played a role in the legal analysis. Thanks to Ben Winograd for the pointer.

A nice op-ed, focusing chiefly on the Ninth Circuit's Faith Center Church v. Glover case, and especially Judge Karlton's concurrence.

The Introduction to my Medical Self-Defense article attracted enough interest that I thought I'd serialize the article on the blog; and the Harvard people were kind enough to let me do that. So let me follow the Introduction with a brief discussion of the Court's existing recognition of a constitutional medical self-defense -- the (surprisingly uncontroversial) right to get even late-term abortions when needed to protect the mother's life. (I do not rely on the more controversial right to get such abortions to protect the mother's health, including possibly emotional or psychological health, or on the right to get particular abortion procedures such as those at issue in Stenberg v. Carhart.) Recall that I'm arguing here both that the Court should recognize a constitutional right to medical self-defense, by analogy to the Court's past precedents, and that even if no such constitutional right is recognized, legislators and voters ought to recognize a moral right to medical self-defense.

Roe and Casey hold that the Constitution protects the right to an abortion. But this right actually consists of two different rights -- different in scope, justification, and popular support.

The first is the highly controversial right to abortion as reproductive choice, which generally allows pre-viability abortions on demand. The second is the right to abortion after viability when necessary “to preserve the life or health of the mother.” This is not the right to abortion on demand, since a woman must show a particular reason for a post-viability abortion. Nor is the right justified by the woman’s right to choose whether to bear a child: If the medical danger hadn’t arisen, the woman would have been obligated to bear the child to term.

Rather, the right is a right to medical self-defense -- the right to protect your life using medical care, even when this requires destroying that which is threatening your life. This right exists despite the interest in protecting the viable fetus’s life, an interest Roe and Casey held compelling enough to trump the abortion-as-choice right. Yet this right is largely uncontroversial, endorsed even by Chief Justice Rehnquist’s Roe dissent, by all the restrictive abortion laws in effect when Roe was decided, and by public opinion. Only 9% to 15% of Americans endorse the view that abortions should be banned even when the woman’s life is in danger. Compare this to the 42% to 58% of Americans who endorse the view that abortion should be generally banned, and available at most to protect the woman’s life or in cases of rape or incest, and the 33% to 46% who endorse a similar view but without even a rape or incest exception.

The medical self-defense right has been expressly recognized just in abortion cases. Yet it can’t be logically limited to situations where the defensive procedure is abortion, and rejected in cases where the woman needs to defend herself using experimental drugs or an organ transplant. Nothing about therapeutic postviability abortion makes it more deserving of protection than any other medical self-defense procedure.

One can’t distinguish postviability abortions on the grounds that they involve the woman’s reproductive choice. After viability the time for that choice has passed, and the ability to get a therapeutic abortion is a side-effect of the woman’s medical self-defense right, not her abortion-as-choice right. Nor can one distinguish therapeutic abortions on the grounds that they involve control over the woman’s own body. A patient’s adding substances (such as medicines or an organ) to her body, as well as removing substances from her body (say, through drugs that kill cancer cells), involves her control over her body as much as does a doctor’s inserting a surgical instrument to remove a fetus.

The medical self-defense procedures may cause some harm. Ellen’s experimental drug may shorten Ellen’s already short expected lifespan. It may also cost her money for what the government thinks may well be a false hope (though note that the pharmaceuticals in the Abigail Alliance case were merely not proven effective, rather than proven ineffective). Likewise, as I discuss [below], allowing compensation for organs has been said to potentially cause various other harms.

Yet Roe and Casey demand far more than a showing of some conceivable risk to some government interests before Alice’s right to abortion-as-self-defense may be restricted. Even the compelling interest in protecting the life of a viable fetus -- a fetus that is in many ways indistinguishable from a born baby -- isn’t enough to overcome Alice’s rights.

The same should hold for other medical procedures used to protect one’s life. Modest burdens on the right to medical self-defense, such as an informed consent requirement or a short waiting period, would be constitutional. But to impose a substantial burden on the patient’s right to protect her life through medical procedures, the government should have to show an extremely powerful reason for burdening the right, and to show the burden is genuinely necessary because the government’s goals can’t be achieved in less burdensome ways. And even when the interest is powerful in the abstract, it might still sometimes be rejected in favor of a right to protect one’s life, as the interest in protecting fetal life is rejected under the abortion-as-self-defense right.

There is, of course, an important limit to the right to medical self-defense (or to lethal self-defense): The right is constrained by the rights of others who aren’t threatening the woman’s life. No woman has a constitutional right to force a doctor to perform an abortion, even to save her life. Likewise, Ellen’s constitutional right to medical self-defense wouldn’t entitle her to steal experimental drugs.

But this is no different from the way other indisputably recognized constitutional rights operate. My First Amendment rights don’t let me steal a printing press, speak on your lawn, or trespass on private property to worship at the site of an alleged miraculous apparition (even if Employment Division v. Smith were overturned).

This is not because property rights are more important than free speech rights, free exercise rights, or self-defense rights; rather, it’s because even important rights are bounded by the rights of others. Naturally the exact scope of those rights of others -- for instance, whether they include the right to freedom from defamation, emotional distress, offense, or interference with business relations -- has long been the subject of debate. But in our legal system an inherent, and I think necessary, aspect of constitutional rights is that they are bounded by at least some rights of others. The existence of such boundaries doesn’t contradict the existence of the right, or weaken the right’s force when exercise of the right does not conflict with the rights of others.

Next week, I'll talk more about lethal self-defense, and then get to the payoffs, which have to do with experimental drugs and compensation for organ transplants.

I think people are often too quick to charge others with hypocrisy; a lot of the "He said A here, but did B there" is explicable by some quite sensible distinctions between A and B. But I'm especially bugged by overconfident claims of hypocrisy -- "He said A, but I'm positive he would have done B there had the situation only happened." This is especially so when the claims name some particular person. If you're going to accuse someone of being a hypocrite, it seems to me that you ought to have pretty solid foundations for your accusation. Your guess as to how the person would have reacted in a hypothetical situation will only rarely qualify.

A concrete example: My post about the Halloweengate press release drew this comment:

By the way, I wonder how many people (ahem--Instapundit) would have taken the exact opposite stance on this issue if this had come out first.

A request for some clarification yielded this from the same commenter:

As we discussed in the prior thread, there is no obvious political valance or statement involved in this costume. So, I think what likely would have happened is that people who were looking for an excuse to bash an Ivy League university president would have become outraged at her taking offense and issuing a statement about it.

In fact, here was Instapundit's last line of his last update:

"I remain skeptical that a Klansman costume would be received in the same fashion, or that an Ivy League university President would be comfortable being photographed with someone wearing a Klan costume."

What I think we would have been reading instead is something like:

"I remain skeptical that a Fidel Castro costume would be received in the same fashion, or that an Ivy League university President would be uncomfortable being photographed with someone wearing a Castro costume."

OK, is there any real justification for assuming that Glenn Reynolds would have "taken the exact opposite stance on th[e] issue" if the press release had come out first, by "becom[ing] outraged at her taking offense and issuing a statement about it"? Is Reynolds noteworthy for thinking in other contexts that suicide bomber costumes are great, and that it's outrageous for university presidents to take offense at them? Is there any real support for the suggestion that Reynolds would have behaved this way?

And this isn't just this comment; I see it all the time, about what the ACLU or the Left or the Right or who knows who would surely have done in some hypothetical scenario. These people or groups are apparently so bad that we can accuse them of likely inconsistency even without their having actually done half of the internally inconsistent pair.

In rare circumstances, the targeted person is indeed so predictable that such a prediction is likely right. But my sense is that much of the time (including here) this just isn't so. The claims of hypothetical hypocrisy are based simply on the claimant's hostility to the target, rather than on any real evidence that the target would have indeed acted the way claimant alleges. It's basically argument by a presumption of bad faith -- not, in my view, the most enlightening form of discourse.

From a New York trial court decision, May 15, 2006 (paragraph break added):

This petition, to change the surname of a three-year-old minor and amend the child's birth and baptismal certificates, by the child's father, her non-custodial parent, is replete with accusations about the mother's alleged reprehensible and irresponsible conduct, as contrasted with the father's self-suffering [sic] assertions of religious devotion, piety, and upstanding behavior. Petitioner's histrionics are worthy of a Harlequin Romance novel or what was once known in Hollywood as a "four hankie" movie....

It is undisputed that Sean Wilson and Caroline Kilkenny had a relationship from late 2001 to August 2002, and that Ms. Kilkenny became pregnant with Mr. Wilson's child, Claudia Rose Kilkenny, who was born on April 29, 2003 at Lawrence Hospital, Bronxville, New York. The infant has resided continuously with her mother, at the mother's residence in Yonkers, New York....

Petitioner's grounds for changing the child's name include that the father: has an M.B.A. degree and is a C.P.A.; is a practicing Roman Catholic; and, is a member of the "Ancient Order of Hibernia" [sic]. Further, petitioner claims that "[m]y family heritage stems from Ireland and has a depth of history and vitality that procures immediate respect and good will in that region by the mere mention of my surname, Wilson."

He then claims that the name change would: save Claudia "the embarrassment associated with being a fatherless child"; "avoid any feelings of alienation arising in the child from having a different surname from that of Petitioner"; and, "prevent scorn and contempt from befalling Claudia as being associated as a societal bastard' child." ...

As you might gather, the court denies the petition. (The careful reader, incidentally, will have noticed that the request for an order to change the baptismal certificate, which is to say for an order that the Catholic Church change the baptismal certificate, seeks a remedy foreclosed by the First Amendment. The court noticed it, too.)

A Philadelphia Inquirer blog, Blinq, reports that Penn's president issued this statement:

Each year, the president hosts a Halloween party for Penn students. More than 700 students attend. They all crowd around to have their picture taken with me in costume. This year, one student who had a toy gun in hand had his picture taken with me before it was obvious to me that he was dressed as a suicide bomber. He posted the photo on a website and it was picked up on several other websites.

People have since complained to me that the costume was offensive. But for Pete's sake, this is a Halloween party, with a bunch of college kids trying to be creative, including trying to be creative with a theme of "dressing as scary evil things." Suicide bombers are scary evil things. Maybe they're too scary evil, or scary evil in the wrong way, or who knows what. But there's no rule book that he should have consulted on the subject; it's a matter of taste and judgment on which reasonable people can differ. Cut him some slack. I say again, it's a Halloween party; even if he went over the fuzzy line, how much public outrage does it merit?

Oh, whoops, sorry -- that was the statement that Penn's president issued in my dreams. Here's the statement she issued in reality:

Each year, the president hosts a Halloween party for Penn students. More than 700 students attend. They all crowd around to have their picture taken with me in costume. This year, one student who had a toy gun in hand had his picture taken with me before it was obvious to me that he was dressed as a suicide bomber. He posted the photo on a website and it was picked up on several other websites.

The costume is clearly offensive and I was offended by it. As soon as I realized what his costume was, I refused to take any more pictures with him, as he requested. The student had the right to wear the costume just as I, and others, have a right to criticize his wearing of it.

OK, Dr. Gutmann, he had a right to wear the costume, you have a right to criticize the wearing of it, and I have the right to criticize your and everyone else's taking this so seriously. (Of course, they also have the right to criticize my taking their taking it so seriously so seriously.) Only mildly, mind you, especially in your case, since University President is not a job that generally allows "Oh, calm down already" press releases. I suppose you did what you had to do.

But, boy, I wish you'd put out my version of the press release instead.

A friend of mine asked me about this -- why do we say "the alarm went off" when the alarm, or at least the sound, goes on?

I infer that this is related to a gun or a bomb going off, that when something is ready to go it is somehow seen as "on," and then when the trigger turns that readiness into actual firing or detonation the device is seen as "going off." But can anyone tell me more precisely how the phrases came to be this way?

Democracy Project is upset by this incident. InstaPundit seems to think the suicide bomber might be anti-Semitic. But this is a Halloween party, no? In recent years, people dress up as positive things for Halloween, too (my boys were Pooh and Tigger) but I had thought the tradition was to dress up as scary, often nasty people. One of the kids in the neighborhood this year was dressed as a '20s gangster, complete with a plastic machinegun. Pirates are pretty common.

You're told to dress as someone scary. A suicide bomber is scary. It should probably be scarier than a skeleton or a ghost. Sounds like you did your Halloween duty. And I don't think that wearing a costume for Halloween endorses the likely sentiments of the person being depicted, be he pirate, bomber, gangster, or zombie.

Now there is a more complex argument, I suppose, that could be made: wearing a costume suggests that the depicted person's activity is a laughing matter. I take it that this would be a possible objection to people's dressing as Nazis for Halloween. I should say that I wouldn't object myself to people's dressing as Nazis for Halloween; still, I assume the sensible argument wouldn't be "by dressing as a Nazi you're endorsing Nazism" but "by dressing as a Nazi you're suggesting that it's OK to use Nazis as a subject of light-hearted fun." Yet even this isn't that persuasive an argument in my book. There are contexts in which light joking about suicide bombers or Nazis might be strikingly inapt; a Halloween party, on the other hand, doesn't seem to me to be one.

UPDATE: Instapundit asks: "Would a university President really pose for photos with someone in a Klan outfit, or wearing blackface? I find that hard to imagine. And if not, why is the suicide bomber outfit OK?"

Two thoughts: First, I would likewise defend someone who came to a party as a Klansman. Same theory — Klansmen are scary; Halloween is about scary costumes; Halloween is not about endorsing the characters you're dressing as. (I'm not keen on the blackface taboo, at least when used to forbid all attempts by whites to try to play black characters at parties; but for this post I'd like to focus on costumes that fit with the Halloween theme precisely because they represent scary evil characters.)

Second, I don't know the details of the pose with the university president, but let's not assume that she deliberated much about the matter. A Halloween party at the university president's house to which students are invited is likely to be a huge affair. I suspect that Saadi wasn't the first person who posed with her.

The president's main job at the party is not to police costume choices but to be nice to the attendees. If she's asked to pose with someone, the default reaction is "OK, let me get this over with quickly, and move on to mingle," not "Let me think about the person's costume to see whether it's suitable for a Picture With Moi." Even if you think that on careful reflection she should have said "No, I won't pose with you because I find your costume in bad taste," I doubt that careful reflection should be expected here.

And, no, I don't think that now that she has had time for careful reflection she should put out a formal apology / clarification / statement praising peace and distancing herself from terrorists or those who would wear inappropriate terrorist costumes. It's a student dressing up for a Halloween party, for heaven's sake.

FURTHER UPDATE: In the paragraph marked "First," I meant to include one more item, but with the lateness of the hour forgot. It may well be that dressing as a Klansman to a Halloween party would have caused a fuss, from a refusal to pose to protest marches to disciplinary measures. But because people have lost a sense of perspective as to some set of costumes doesn't mean that we should encourage them to do the same as to others. One can certainly condemn those who use a double standard (though it's a little harder if you're just conjecturing that they'd have a double standard, since you have only a hypothetical case to compare against). For the reasons I gave above, however, we shouldn't avoid double standards by having a single standard of outraged condemnation.

from a Daily Bruin article:

An isolated incident like this one of course doesn't tell us much about the incidence of such attitudes. But it's still good for those of us who -- like me -- have almost never encountered anti-Semitism in their Los Angeles lives to remember that this stuff is out there.

Thanks to Omri Ceren for the pointer, and for the pointer to a story about a seemingly similar incident at UC Irvine.

This is a new essay of mine, which should be coming out in April 2007 in the Harvard Law Review. The article, lean and trim (by my standards) at 30 pages, is available from this page. In the meantime, here's the Abstract:

Three women lie in adjoining hospital rooms. A fourth lives a block away. All are in deadly peril.

Alice is seven months pregnant, and the pregnancy threatens her life. Her fetus has long been viable, so she no longer has the Roe/Casey right to abortion on demand. But because her life is in danger, she has a constitutional right to save her life by hiring a doctor to abort the viable fetus. She would even have such a right if the pregnancy were only posing a serious threat to her health, rather than threatening her life.

Katherine lives nearby. A person breaks into her home and seems about to try to kill her (or perhaps seriously injure, rape, or kidnap her). Just as Alice may protect her life by killing the fetus, Katherine may protect hers by killing the attacker, even if the attacker isn’t morally culpable, for instance if he is insane. And Katherine has a right to self-defense even though recognizing the right may let some people use false claims of self-defense to get away with killing the innocent.

Ellen, back in the hospital, is terminally ill. No proven therapies offer help. An experimental therapy seems safe, because it has passed Phase I FDA testing, yet federal law bars its use outside clinical trials because it hasn’t been demonstrated to be effective (and further checked for safety) through Phase II testing. Nonetheless, under Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, decided in 2006 by the D.C. Circuit, Ellen has a constitutional right to try to save her life by hiring a doctor to administer the therapy.

Olivia is dying of kidney failure in the room next to Alice’s and Ellen’s. A kidney transplant would likely save her life, just as an abortion would save Alice’s, lethal self-defense may save Katherine’s, and an experimental treatment may save Ellen’s.

But the federal ban on payment for organs sharply limits the availability of kidneys, so Olivia will likely die if she must wait for a donated kidney. Barring compensation for goods or services makes them scarce. Alice and Ellen would be in jeopardy if doctors were only allowed to perform abortions or experimental treatments for free. Katherine likely wouldn’t be able to defend herself with a gun or knife if weapons could only be donated. If organ providers or their heirs could be compensated, many more organs would be available, and Olivia would be much likelier to get the life-saving kidney. But federal law bans organ sales, and thus frustrates Olivia’s ability to protect her life.

My claim is that all four cases involve the exercise of a person’s presumptive right to self-defense — lethal self-defense in Katherine’s case, and what I call medical self-defense in the others.

This is a constitutional right: I will argue in Part II that Roe and Casey secure not just a pre-viability right to abortion as reproductive choice, but also a separate post-viability right to abortion as medical self-defense when pregnancy threatens a woman’s life. And given that Alice has such a right to defend herself by getting an abortion, Ellen and Olivia should have the same right to defend themselves through other medical procedures. Alice is free to have surgery in which a doctor inserts devices into her body to excise a fetus that, tragically, threatens her life. Ellen should likewise be free to have a procedure in which a doctor inserts chemicals into her body to destroy a tumor that threatens her life. And the government should not place substantial obstacles in the way of Olivia’s having a procedure in which a doctor inserts an organ into her body to replace a failing organ that threatens her life. It can’t be that a woman has a constitutional right to protect her life using medical procedures, but only when doing so kills a viable fetus.

I will also argue, in Part III, that the right to medical self-defense is supported by the long-recognized right to lethal self-defense: the right to protect your life against attack even if it means killing the attacker. The right has constitutional foundations, in substantive due process, state constitutional rights to defend life and to bear arms, and maybe the Second Amendment. But even if it’s treated as just a common-law and statutory right, our accepting it should lead us to accept a similar common-law or statutory right to defend one’s life against medical threats as well as against human or animal threats. Even if the Court stops recognizing unenumerated constitutional rights, legislatures should presumptively protect people’s medical self-defense rights just as they protect people’s lethal self-defense rights, and as the public overwhelmingly supports women’s abortion-as-self-defense rights. While a legislature need not fund people’s self-defense, it generally ought not substantially burden people’s right to defend themselves.

In Parts IV and V, I’ll apply the abortion-as-self-defense and lethal self-defense analogies in more detail to experimental drugs and to compensation for organs. I’ll argue that the right of medical self-defense offers an extra foundation for the Abigail Alliance holding that there is a constitutional right to use experimental therapies to protect one’s life. And I’ll argue that the right makes the organ sales ban presumptively improper and unconstitutional when the organs are needed to protect people’s lives; some concerns about organ markets may justify regulations of such markets, but not prohibition.

I will also argue that, while this presumption is potentially rebuttable, it should take much to rebut it. Recognizing the right to medical self-defense as a constitutional right or a moral right means that the government should have a very good reason to substantially burden the right, and that the restriction should be as narrow as possible.

In particular, while the right may be regulated in some ways — for instance, to prevent the killing of people by organ robbers — such regulations can and should be far less burdensome than a total ban on organ sales would be. We respect and value self-defense rights enough that we allow lethal self-defense, even given the risk that false claims of self-defense can be used as a cloak for murder: Rather than prophylactically banning all use of lethal force, we make certain uses illegal and rely on case-by-case decisionmaking to discover these improper uses and to deter them. The same should apply to payments for organ transplants.

Finally, in Part VI, I’ll argue that a right to medical self-defense is not only logically supportable, but also potentially successful both in political debate and in the judicial process. Both liberal and conservative judges and voters should be potentially open to it; and I hope that the analogies I offer in this Essay can be used to help persuade them.

over publisher's decision to raise the institutional subscription price to $1,665 for one year (six issues). The New York Sun reports on this.

Thanks to Paul Caron (TaxProf) for the pointer.

A reader passed along to me this item from a USA Today article last week:

Witold Walczak, legal director for the American Civil Liberties Union of Pennsylvania, defended Flaherty and other students who were expelled and punished by schools for statements they made online from their home computers.

He agrees that districts should punish students who post admissions of illegal activity — such as high-schoolers who post pictures of themselves drinking, doing drugs or committing other criminal acts. He also agrees that racist remarks or postings that promote or predict violence should be punished.

The reader, Brian Teague, wrote: "I would be very interested to read your comments in the VC regarding this article from today's USA Today, especially the excerpt below detailing the ACLU's distorted (in my mind) view of the apparent limits of the first amendment [referring to the 'racist remarks ... should be punished' item]."

I too was puzzled by Mr. Walczak's paraphrased position, but thought I'd e-mail Mr. Walczak first to clarify his views. Mr. Walczak was kind enough to promptly get back to me, and reported that the paraphrase actually misdescribed his position, which is this:

Schools might be able to punish students who post admissions of illegal activity, not for the speech but for admitting the illegal activity [I take it referring to the use of speech as evidence of the activity -EV]. The law is unsettled in this area which is why I say might.

If a student threatens violence or uses racial epithets against another student or teacher while in school, he might be punished under the Bethel v. Fraser standard. Again, the line between harassing and protected speech is unclear.

In any case, since the issue came up, I thought I'd pass along Mr. Walczak's correction. It's hard to tell for sure whether the reporter misheard, misunderstood, or mistranscribed what was said (something that reporters, like others, sometimes do), or whether Mr. Walczak misspoke. But I thought it might be helpful to know that, one way or the other, the legal director of the ACLU of Pennsylvania doesn't endorse the view that was ascribed to him in the article.

Check out claim 9 of this patent application:

9. The method of providing user interface displays in an image forming apparatus which is really a bogus claim included amongst real claims, and which should be removed before filing; wherein the claim is included to determine if the inventor actually read the claims and the inventor should instruct the attorneys to remove the claim.

Thanks to Michael Barclay for the pointer.

The Seattle Times runs this editorial:

[T]here is one TV ad benefiting Democratic congressional candidate Darcy Burner that is beyond the pale, not because of what it says but because it violates a copyright of TVW, Washington's public-affairs network.

Burner, who is challenging incumbent GOP Rep. Dave Reichert in the 8th District, is not responsible for the ad. The Democratic Congressional Campaign Committee (DCCC) is running the ad attacking her opponent. The TV ad depicts Reichert at a meeting saying GOP leadership comes to him and tells him how to vote, and he'll take the vote.

It omits his next line: "There are some times when I say, 'No, I won't.'"

Sounds pretty bad — classic and improper quoting out of context. But that's not why the ad is "beyond the pale," according to the Times:

Our criticism goes beyond the ad's inaccuracy, however. Rather, it is about the use of copyrighted TVW footage without permission, which would never have been granted in this case.... [Burner] might not be responsible directly for the ad, but she benefits. Burner should denounce the ad and call for its removal.

Two thoughts:

1. It's far from clear to me that using the footage is indeed copyright infringement. It is certainly copying, and even heavily state-funded nonprofits (or for that matter even state-run groups, which TVW isn't) may own copyrights. But this might well be a classic in which the copier has a valid fair use defense ("fair" here is a copyright term of art, which has little to do with the fairness of the ad). The use is noncommercial, it's for purposes of political commentary, it's copying material that's predominantly factual, it's copying only a part of the material (that may well be the problem), and it doesn't seem to be in any meaningful sense affecting the commercial value of the copyright owner's work or denying the copyright owner licensing revenues. It's hard to tell for sure without seeing just how much of TVW's broadcast was taken, but from what I've heard about the controversy the fair use defense is quite strong.

Notably, the Times editorial doesn't even hint at the existence of the fair use defense, and makes it sound like any copying for rebroadcast of TVW's work is categorically copyright infringement. That itself seems a little misleading, in my view, unless there are some factual details I'm missing.

2. The Times says the ad is indeed "inaccura[te]," and from the Times's description, it certainly seems to be so out-of-context as to be inaccurate. If that's so, the Democratic Congressional Campaign Committee is deliberately distorting a candidate's position in the days before an election in order to sway voters. Can it really be that this is within the pale, but copyright infringement — even if it were indeed copyright infringement — is what places the ad beyond the pale? (Note that even if this were infringement, it wouldn't even be technically criminal copyright infringement.)

I surely agree that the parties ought to follow the law, and ought not commit torts. But aren't we losing perspective a bit when we see them as having a greater civic duty (or even an identical civic duty) to respect copyrights than to be accurate when attacking a rival candidate? And shouldn't newspapers focus more on policing the accuracy of political debate — something on which media reaction is often the only effective remedy — than on calling foul on alleged copyright infringers, which the courts can handle just fine by themselves?

I should note that item 1 strikes me as probably more important here than item 2, since if I'm right in my analysis the Democratic Congressional Campaign Committee is not at all guilty of copyright infringement but indeed guilty of inaccuracy. Moreover, on item 1, the analysis is likely clearer and more objective than on item 2. Still, I wanted to bring up both points.

Thanks to Venkat Balasubramani for the pointer.

Michele Bachmann, a Minnesota Congressional candidate, belongs to the Wisconsin Evangelical Lutheran Synod, which is apparently the third-largest Lutheran group in the U.S., with over 300,000 communicants. My sense is that American Lutheranism is a relatively calm, polite religion, though perhaps that comes from hearing too much Garrison Keillor. Maybe the Wisconsin Evangelican Lutheran Synod is a departure from that -- please let me know if that's so -- but I haven't seen much evidence on that score.

Yet Luther, of course, was not calm or polite about religion, nor were the early Lutherans. And the Synod's Statement on the Antichrist reflects this, reaffirming that "the Pope is the very Antichrist." Not just bad or theologically wrong, mind you, but the very Antichrist.

Now on to modern political debates: FaithfulDemocrats.com has pointed out that Michele Bachmann, a Republican candidate for Congress in Minnesota, belongs to the Synod. Bachmann was asked in a televised debate whether the Synod regards the Pope as the Antichrist, and whether she agrees. Bachmann said the allegation about the Synod was "a false statement," that her pastor agrees and "was absolutely appalled that someone would put that out," that she loves Catholics, and that her "church does not believe that the Pope is the Antichrist."

So what is a sensible voter, and especially a sensible Catholic voter to do? Here's my guess, subject of course to revision if I hear more about Bachmann or about the Synod (and if I were living in her district, I'd probably have heard at least somewhat more about both). Bachmann probably does love Catholics no less than she loves fellow Lutherans. Her church probably does not believe that the Pope is the Antichrist in the sense that the majority of church members, and of church leaders, don't really think much in Antichrist terms, especially about particular people who haven't done anything tangibly bad (whether Popes, rabbis, or atheists).

Many church members probably aren't even aware of the Pope-is-Antichrist teachings; perhaps they've heard of them at one point, but they likely haven't thought about them in decades, and certainly haven't really absorbed them as part of their lived sense of what the Church is about. They might well be shocked to hear that their church takes this view, though this shock might be less if they spent a little more thinking about the Lutheran-Luther connection. Lots of religions have musty articles of faith that are not actual present-days article of genuine, emotionally felt or even intellectually considered faith on the part of most of their members.

Yet Bachmann's reaction to the question doesn't speak that well of her -- either she isn't being candid, or her research has been quite weak. And it's hardly irrational for Catholic voters to consider the possibility that hostility to Catholicism is indeed a live article of faith for Synod members rather than just a dead one.

My sense -- again, tentative, and subject to change if one learns more about the actual current practices and attitudes of Bachmann or of the Synod -- is that 500-year-old theological disagreements, even ones that a church feels obligated to stick with, shouldn't be an important factor. Rightly or wrongly, people are pretty good at compartmentalizing their religion's theological assertions from their day-to-day actions. Belief in the Virgin Birth doesn't actually impair even most true believers' abilities to be sensible, practical-minded obstetricians. Views about the Papacy and the anti-Christ, or for that matter about damnation of those who don't believe as you do, in practice (at least among most Americans today) don't much affect one's behavior with regard to Catholics or non-believers.

A candidate's lack of candor about such disagreements, even if there is lack of candor here, is a more serious matter, but probably not that serious by the standards of American political life. You'd probably be better off looking at how candid and how tolerant the candidate has actually been in the past, and how much you agree with them on substantive political issues, and ignoring theological disagreements.

Still, if I'm right about this, this is because people do separate theology from daily actions -- and because modern Lutherans are indeed very far from Martin Luther in actual beliefs. I'm rather pleased by that, but I suspect Martin Luther wouldn't be.

until you fall to the ground, definitely don't fight back with lethal force. After all, maybe he's insane, and quite possibly not morally responsible for his actions. You wouldn't want to kill someone like that. And maybe he'll stop short of killing you or seriously injuring you while you're lying there on the ground, right?

That wouldn't be my thinking, but that seems to be what one item published by the Seattle Times suggests. First, some background:

According to Seattle police, a woman called 911 at 11:08 a.m. Saturday to report that a man [Danny Culotti] was acting erratically, yelling at passers-by and randomly assaulting strangers near Boren Avenue and Pine Street. Officers sent to the scene couldn't find the caller, the man or any victims, police spokeswoman Debra Brown said.

Twenty-three minutes later, police dispatchers radioed that shots had been fired at Fifth Avenue and Pine Street, she said. Moments earlier, witnesses told police, a man in his 20s apparently attacked the 52-year-old man, punching and kicking him until he fell to the sidewalk. The older man pulled out a .357-caliber Ruger revolver [which he was licensed to carry] and fired one round, striking the man in the abdomen.

The older man "was not winning the fight" — the other man "just starts attacking him, he's on the ground and a shot is fired," Brown said, describing witnesses' accounts.

Ms. Brown also said that the man told the victim "I am going to kill you" before he started the attack.

Culotti, it turns out, had been mentally ill for years; in 2001, he burnt down his mother's house — having "doused the floors inside the house with gasoline." The mother was running a day-care center from the house, though fortunately "Culotti's mother, several child-care providers and seven children escaped unharmed." He was sentenced to less than two years in prison, and was released after nine months, having been labeled a Dangerous Mentally Ill Offender under state law. He had also "failed two drug tests shortly after his release from prison in October 2002", and "told his probation officer he had used crack cocaine regularly 'to help ease the stress.'" Culotti's victim, of course, had no way of knowing this, though I'm sure he wouldn't have been surprised by Culotti's past history. Now mental illness is of course a tragedy, and if indeed the illness was so severe as to render Culotti not morally culpable for his acts, Culotti's death would be a tragedy, too. (Different people draw the line for moral culpability at different places, but surely there are some mental illnesses that are so severe that they negate a person's moral culpability — for instance, if someone is operating under a sincerely felt insane delusion that it is the victim who is attacking him.)

Yet tragic as the situation may be, surely the one person that should not be blamed is the victim of Culotti's attack; yet that's exactly what an item published as "The Reader's View," and written by Culotti's uncle, a professor of molecular and medical genetics, says:

Witnesses say Danny's attack appeared random, but it was Danny who was shot dead. Initial reports painted Danny as a dangerous person who deserved it and the shooter as the victim.

Put aside the fact that Danny was a beautiful, intelligent child who became schizophrenic at age 18 through no fault of his own; then ask how you would respond to someone attacking you with his fists.

Most normal people would respond by instinctively running or using their hands to defend themselves.

However, the shooter was not what we would think of as normal — he was carrying a gun and his immediate instinct was to shoot his attacker.

Many "normal" people are capable of killing another person in a brief moment of extreme anger, but this is uncommon because most of us do not carry lethal weapons and our bodies are not killing machines — a .357-caliber Magnum is.

Schizophrenia, amazingly, affects one of a hundred people. Its major symptom is hearing voices, often telling the person to perform abnormal acts. Its cause is not understood, but it can strike anyone and is one of the worst scourges of modern society.

There is no doubt that Danny acted erratically that day, but he did have a diagnosed mental illness.

I am certain he would admit that what he did was wrong, if he were alive, but he was taken from us by a misguided man with a gun.

Danny won't be here to rejoice in a cure for schizophrenia, which we all hope will one day be found. May Danny rest in peace.

What a "misguided" and non-"normal" 52-year-old that was: A 25-year-old jumps him for no reason, punching and kicking until he falls to the ground, and he "misguided[ly]" and "[ab]normal[ly]" concluded that he was legally and morally entitled to defend himself rather than "using [his] hands to defend [himself]" or "instinctively running" while lying on the ground. After all, though "[t]here is no doubt that Danny acted erratically that day," "he did have a diagnosed mental illness." How dare the 52-year-old conclude that protecting his own life justified killing this potentially mentally ill attacker?

I sympathize with Dr. Culotti's grief, and I can understand why the grief would lead him to focus on the death of his beloved nephew to the exclusion of his nephew's potentially lethal attack on a stranger. Yet I hope that the editors who chose to publish the article, and the readers who read the article, aren't confusing this grief with moral insight. Maybe that makes me abnormal and misguided, but there it is. Doubtless it's a moral illness on my part, to those who share Dr. Culotti's perspective.

By the way, I acknowledge that I'm relying here on newspaper reports, which may well be quite flawed. But I've looked at several reports, which seem consistent; and nothing in Dr. Culotti's item states that any of the reports are mistaken. Thanks to Clayton Cramer for the pointer.

NPR ran a story Friday on the 20th anniversary of the crack cocaine sentencing rules — rules under which the weight thresholds for crimes involving crack cocaine are set 100 times lower than the thresholds for crimes involving powder cocaine (so that dealing 5 grams of crack will be treated comparably to dealing 500 grams of powder). There surely are important criticisms of these rules; I'll implicitly touch on one below.

But, boy, the NPR story seemed weak, in pretty obvious ways. I'm not a drug policy expert, which is why I almost never blog about the subject, but the story's weaknesses are so clear that it seems to me one needn't be an expert to spot them. A few examples:

The U.S. Sentencing Commission has recommended reducing the differential between crack and powder cocaine since 1995.

It's found that 83 percent of the people in prison under the law for crack cocaine are African-Americans, even though many users of crack cocaine are white.

Let's begin with the comparison — 83% of the people in prison for crack cocaine are black, though many users are white. How many? "Many" could mean 5% of a large number, or 20% of a large number, or 60%. I've certainly heard that the actual percentage is enough to make for a substantial disparity between the demographics of imprisoned crack criminals and the demographics of users. But the story doesn't even assert that, much less that demonstrate that with numbers.

Second, it's far from clear that there's anything sinister in treating drug dealers more harshly than drug users; the premise of most controlled substances laws has been precisely that. (Even critics of drug laws rarely argue that the solution is to impose the same long sentences on users as on dealers.) If the Mafia were running drugs to predominantly black neighborhoods, you'd hope that the great majority of drug prisoners were of Italian extraction even if the great majority of users were black. Even if drug users were punished to some extent, they'd probably be sentenced to shorter terms, which would lead to the disproportion between the demographics of prisoners and of users. Likewise if crack cocaine distribution is mostly a black business and crack cocaine buyers are mostly white.

Now if you think racial disproportions matter, you might compare crack dealers to dealers in other drugs, and see whether black drug dealers were getting much higher sentences than white drug dealers (controlling for the harmfulness of the drugs). I can't tell you what those numbers would show. But those aren't the numbers that the NPR story gave, or, more precisely, hinted at (given its 83% vs. "many" comparison).

Here's the next sentence:

And it's found that most of those imprisoned are street dealers or drug couriers, not kingpins.

Most of those imprisoned aren't kingpins? So what? Under any sensible definition of kingpins, kingpins would be only a tiny fraction of the distribution pyramid. Even if the war on drugs is perfectly proper, and even if it is conducted in the most efficient and racially evenhanded way, and even if law enforcement tries much harder to get kingpins than it does to get the lower-level, medium-level, and the sub-kingpin-high-level participants, of course kingpins would constitute only a small minority of those imprisoned. (If you have a hard time imagining such a scenario, because you so reject the war on drugs, imagine an attempt to fight only those who are distributing highly addictive drugs to minors, or an attempt to fight extortion rackets.)

The only way you can get a situation where "most of those imprisoned are kingpins, not street dealers or drug couriers" is if you virtually eliminate any prosecution of street dealers or drug couriers. That's hardly a sensible strategy of fighting the war on drugs (as opposed to of abandoning it). Again, maybe there's a serious criticism hiding behind the vague assertions, for instance that the rules are highly ineffective against kingpins (or that no matter how many kingpins you lock up, some others will rise to take their place). But if that's what you're trying to say, say it. Don't give a vague assertion that, even if completely correct, would tell us nothing about whether the law is working well.

Then the story goes on:

[M]ore voices are calling for change. Senator Jeff Sessions, the conservative Republican from Alabama, is one of them. He's introduced a bill that would reduce the differential between crack and powder cocaine from a hundred to one; to 20:1.

Senator JEFF SESSIONS (Republican, Alabama): And now we have had nearly 20 years of experience and I think, legitimately, based on my experience as a federal prosecutor, that the crack sentencing guidelines are too heavy. And there's — it's not necessary to have as long of sentences for some of these offenses as we now have. And it's appropriate if Congress is going to move in to this area, that it review what it's done and — and make adjustments as time goes by.

OK, so 100:1 is supposedly bad — but how are we to decide whether the 20:1 would be any better? Why not 5:1? Why not 1000:1? Are we just supposed to figure out the ratio at which the racial demographics of prisoners and users match (the main criticism of the 100:1 disparity that the story had pointed to so far)? Or are we just supposed to figure out the ratio at which the majority of prisoners will be kingpins, in which case why would a ratio help at all?

Now as I've mentioned above, there are some sensible factors one can consider, if both crack and powder cocaine are to be outlawed, and we're looking for the right weight equivalence ratio. Most important of them, it seems to me, would be how dangerous crack is per gram compared to cocaine.

The theory for calibrating punishment to weight more generally, even within the same drug, is that 1000 grams of cocaine are thought to be more dangerous than 10 grams, because they represent more doses. (Again, if you think that neither is dangerous enough to justify the war on drugs, think of what policy you'd use for deciding how to punish people who were trying to sell cocaine to children.) One reasonable theory for calibrating punishment to drug type would be if some drugs were thought to be more dangerous per dose than others. If one gram of crack yielded approximately as much harm as 100 grams of cocaine, whether because of difference in dose size or dose harm (recognizing of course that any such matters are only estimates), then the 100:1 disparity may well be sensible. If our best guess of the harm ratio is that 1 gram of crack yielded as much harm as 1 gram of cocaine, then, unless there are some other factors that the harm analysis doesn't take into account, there shouldn't be a disparity at all. If the harm-per-gram ratio is 20:1, then we might want to consider a 20:1 weight ratio.

But even if I'm wrong in this analysis, at least it's an example of how one can think of the matter in a way geared to actually reach a sensible policy result, rather than just reporting on a proposed number with no explanation for it, or quoting people who would replace one number with another, with no explanation for the reasoning that might support either. Some such sensible analysis, whether the one I offer or a better one, would be more helpful to listeners than "lots of people say 100:1 is too much, and it leads to racial disparities of a magnitude that we'll only hint at, so let's try 20:1."

UPDATE: In the last paragraph, I originally wrote "picking numbers out of thin air" instead of "reporting on a proposed number with no explanation for it" and "who would replace one thin-air number with another" instead of "who would replace one number with another, with no explanation for the reasoning that might support either"; this post by Doug Berman reminded me that my formulation wasn't quite right -- I meant to fault NPR's reporting for giving numbers with no explanation, but my "thin air" reference erroneously suggested that the numbers had no explanation at all. I can't speak to that latter question; for all I know, for instance, Sen. Sessions' 20:1 proposal is eminently sensible and well-supported -- my point is simply that NPR gave us nothing to explain the numbers, which for all we were told appeared out of thin air. My apologies for the error, and my thanks to Prof. Berman for prompting me to correct this.

I'm delighted to say that Max Boot will be guest-blogging here this week. Max is a Senior Fellow in National Security Studies at the Council on Foreign Relations in New York, a weekly foreign-affairs columnist for the Los Angeles Times, a contributing editor to The Weekly Standard, and a regular contributor to The New York Times, The Washington Post, and Foreign Affairs.

Max will be blogging mostly about his new book, War Made New: Technology, Warfare, and the Course of History, 1500 to Today (Gotham Books); he's also the author of The Savage Wars of Peace: Small Wars and the Rise of American Power (Basic Books), which was selected as one of the best books of 2002 by The Washington Post, The Los Angeles Times and The Christian Science Monitor, and won the 2003 General Wallace M. Greene Jr. Award, given annually by the Marine Corps Heritage Foundation for the best nonfiction book pertaining to Marine Corps history. For some excerpts from reviews of the book, see here.