The Providence Journal reports:

The attorney general's office yesterday dropped a case against a 48-year-old Narragansett man who had been charged with raping a woman 32 years ago when both he and the alleged victim were 16 years old.... The case against [the man] was based on memories that the alleged victim had repressed until recently, and a spokesman for [Attorney General] Lynch’s office said state prosecutors did not believe that her testimony would be allowed in court....

The dismissal form cites a 1996 Rhode Island Supreme Court case, State v. Quattrocchi, which requires any case that relies on repressed memory to have a pre-trial hearing on the evidence. "The State dismisses despite its belief that the allegation made by the victim and corroborated by independent evidence established probable cause. However, the high burden for admissibility, at trial, of testimony based on repressed memory as set forth by the court in Quattrocchi provides a legal impediment that the state is unlikely to overcome." ...

Although the attorney general’s office was familiar with the requirements under Quattrocchi before filing charges against Allen, prosecutors did not consider them until after the indictment against him was returned, said [a spokesman for the Attorney General's office].

Thanks to Brian Bishop for the pointer.

The Second Circuit just handed down Husain v. Springer, which strikes me as quite odd. The case is complex, but the short version is this:

A college student newspaper endorsed a slate of candidates for student government. The university president thought this was unfair and a violation of student government election rules, so she canceled the election, suggesting that she would cancel future elections if the student newspaper made similar endorsements in the future. The Second Circuit held that this cancellation of the election violated the student newspaper's First Amendment rights, because it was "designed to chill the speech contained in future editions."

What makes this a strange First Amendment case, of course, is that the newspaper wasn't ordered to stop speaking. Nor was it threatened with loss of funding or any other tangible loss for not speaking. Rather, it was threatened with frustration of its purpose -- "if you keep endorsing candidates, we'll make sure that your endorsed candidates don't get elected."

I'm unaware of any First Amendment case that remotely reaches this sort of "chill[ing of] speech"; and such behavior by the government seems quite far from the sort of government actions that the law has recognized as triggering the First Amendment. This alone, it seems to me, should have led to the conclusion that the president enjoyed qualified immunity (something the Second Circuit did not conclude).

But let's turn to the merits: Does your right to urge result X really include the right to prevent the government from making result X impossible (even when the government is retaliating against your speech)?

Say, for instance, that a newspaper -- not even a student newspaper -- urges the government to do something. A government official doesn't like what it sees as improper meddling (perhaps the government thinks the newspaper's justification interferes with government decisionmaking, or is based on some improper reason, such as someone's race, religion, sexual orientation, or what have you). The official then says "You want us to hire [or not hire] a gay candidate because he's gay. [Assume, just for the sake of simplicity, that there's no legal prohibition on sexual orientation discrimination.] I disapprove of this argument, and I feel it taints the entire selection process. Instead, we will just start the hiring process over in six months."

Or "You want us to hold a State History Appreciation Day event -- we were planning to, but now that you've started a campaign aimed at characterizing the event as partly a commemoration of our state's Confederate history, we feel that the event would be tainted in people's minds, so we'll cancel it." Or "You threatened to use our Veteran Appreciation Day event as a vehicle for your 'God Hates Fags' / 'Thank God for Dead Soldiers' demonstration, so we'll cancel the event altogether and deprive you of your excuse."

Does that really violate the First Amendment rights of the speakers whom the government disapproves of? It seems to me the answer is no, but the Second Circuit's decision would suggest that the answer would be yes.

Nor is there something special here about canceling the student election. As far as the opinion is concerned, there was nothing otherwise illegal about the president's decision to cancel the election -- the decision was within the president's power.

If the cancellation decision was illegal, then it would have had to be challenged under whatever state law made the decision illegal, not as a violation of the newspaper's First Amendment rights. For instance, if a governor canceled a statewide election because he disapproved of some newspaper endorsements, I'm sure this would be illegal, because governors generally aren't allowed to cancel elections at their own discretion. But the illegality would be a violation of state law, not of the newspaper's First Amendment rights.

The Second Circuit decision basically reasons that the government may not "engag[e] in conduct designed to chill the speech contained in future editions" of the speaker's speech, even when the "conduct" is simply the government's decision not to allow its government processes to be used to accomplish the results the speaker urges. Doesn't seem quite right to me, but I'd love to hear what others think.

because "this is not a case that should occupy the mind of a person who has anything consequential to do."

I kid you not; the opinion, dissenting from a 44-page majority opinion that finds a university president's actions violated the First Amendment rights of a student newspaper, is here.

It's too bad that the dissenting judge didn't take the case more seriously: I think the majority opinion may well be wrong, and certainly sets an important precedent that would benefit from serious, skeptical scrutiny. Even if the dissenter thinks the case should be unimportant ("this silly thing," he calls it), and that the plaintiffs are suffering from a "fantasy of oppression" and engaging in a "slow-motion tantrum," the case now is indeed important. It seems to me that the matter deserved his time and attention.

Thanks to How Appealing for the pointer.

Responding to a commenter who used the phrase "this data," another commenter writes:

Not to be pedantic or anything, but I'm sure you meant these data. Perhaps it's old-fashioned, but I feel anyone with a PhD should be able to use "data" correctly. Anyone else, and I don't particularly care.

What puzzles me is what exactly the word "correctly" means here. My Merriam-Webster Webster's Dictionary of English Usage, for instance, reports that both the plural noun version of data (for which the dictionary offers the analogy earnings, and which takes plural verbs) and the abstract mass noun version (for which the dictionary offers the analogy information, and which takes singular verbs) "are standard" in English. In Latin, "data" might be exclusively plural. But we're speaking English, and in English both the singular and the plural are, according to this dictionary, fine.

My New Shorter Oxford likewise describes "data" as "pl. & collect. sing." The big online Oxford lists both. The American Heritage lists it as "pl. n. (used with a sing. or pl. verb)"; it does provide a usage note, but reports that "Sixty percent of the Usage Pannel accepts the use of data with a singular verb" as in "the data is in."

Garner's Dictionary of Modern American Usage is the most pro-plural modern source of the ones I've checked, but even it reports only that "in more or less formal contexts [data] is preferably treated as a plural." The original 1926 Fowler does insist that "data is plural only"; the 1996 New Fowler's Modern English Usage begins by giving as an example that "The data are (not is) insufficient," but reports that "In modern times usage varies," and notes that "In computing and allied disciplines [data] is treated as a singular noun."

Now let's set aside whether one views the singular data as elegant or grating; let's also set aside whether one would counsel one's students to take the course that will annoy, rightly or wrongly, the fewest readers. (Note that here both the singular and the plural versions may annoy some.) The claim was that the singular is not "correct[]." And I don't quite see for what sensible meaning of "correct" that claim is correct.

This question comes up every so often, so I thought I'd pass along what seems to be the best data out there -- from Laumann et al., The Social Organization of Sexuality 311 (1994). All numbers are percentages.

1. Sexual partners:

2. Sexual identity ("Do you think of yourself as heterosexual, homosexual, bisexual, or something else?"):

3. Sexual attraction ("In general are you sexually attracted to only men, mostly men, both men and women, mostly women, only women?"):

Naturally one has to be cautious about even well-conducted random studies of small sexual minorities, especially when some respondents might lie. Also, note that even though the study tried to be precise in the questions it asked, other studies might not, or might focus on different questions -- whether someone is "gay" or "lesbian" is not unambiguously defined, and the definitions may vary from survey to survey and respondent to respondent. Still, this seems to be the best approximation I've seen.

I'd often heard of "the unwritten law," under which a husband who caught his wife and another man having sex would be acquitted for killing the other man -- not just found guilty of mere manslaughter rather than murder (which tends to be still the law today, under the right circumstances), but entirely acquitted. I had assumed that it was a matter of custom and jury and prosecutor discretion ("no jury in the land would convict me").

But, as I just learned (entirely from reading cases, mind you), this was actually the written law -- either statutory or common law -- in several U.S. states until the 1970s. Here's a summary from Jeremy D. Weinstein, Adultery, Law, and the State: A History (1986), though I've read some of the cited cases myself:

Some American states, either by statute or judicial decision, made it legal for a husband to kill an interloper caught in the act of adultery with his wife. [Footnote: The civil law provides an interesting comparison. Its primary difference from the common law is that since ancient times the cuckold was allowed to kill the wife as well as the marital interloper.] ...

Until 1974, when it was repealed, [a] Texas statute provided:

Homicide is justifiable when committed by the husband upon one taken in the act of adultery with the wife, provided the killing take place before the parties to the act have separated. Such circumstance cannot justify a homicide where it appears that there has been, on the part of the husband, any connivance in or assent to the adulterous connection.

... Although an early case established that the statute permitted the husband to kill his wife as well as her paramour, Texas courts criticized this interpretation and reversed it the following decade [in 1925]. Furthermore, Texas judges refused to extend the statute to permit a wife to kill her husband's paramour. Under the Texas statute, the injury to the paramour was only justifiable when inflicted with the intent to kill [as opposed to, in one case, castrate]....

Until 1977, Georgia [common law] also permitted a husband or father to kill the paramour of his spouse or child under limited circumstances.... The Georgia courts interpreted the justifiable homicide law as a class of self-defense, while the Texas statute was in effect a law allowing revenge. The most significant distinction between the Georgia and Texas rules was that the killing under the Georgia rule was defensive in nature and had to be necessary to prevent and defend against the adultery. A killing after the adultery was vengeance, and therefore was murder or manslaughter depending on whether it was committed in the sudden heat of passion. The defensive nature of the justification allowed killing to stop an adulterous relationship of which the husband or father was aware if it seemed to the husband or father to be the only way to do so. In contrast, under the Texas statute a husband was only permitted to act if he was surprised with a present adultery.... [The law] extended to the protection of daughters and fiancees, although evidence of the woman's chastity was admissible on the question of whether it was necessary to kill to protect it, which was a question for the jury.

In contrast to the situation in Texas, in Georgia the wife could kill her husband's paramour, but just as in Texas, the spouse was not permitted to kill the other spouse. Another difference between the Georgia and Texas justifiable homicide rules was that, in Georgia, the paramour [generally was not allowed to use lethal force to defend himself against the spouse's lethal attack]....

[Until 1973], two other American jurisdictions, New Mexico and Utah, had statutes justifying the killing by a husband of his wife's paramour if he found them together in adultery. [Unlike the rationale given by Georgia courts, the New Mexico courts framed the matter as one of excuse rather than justification]: "[t]he purpose of the law is not vindictive. It is humane. It recognizes the ungovernable passion which possesses a man when immediately confronted with his wife's dishonor. It merely says the man who takes life under those circumstances is not to be punished; not because he has performed a meritorious deed; but because he has acted naturally and humanly."

Incidentally, a 1975 Georgia appellate case that began the abrogation of the Georgia rule drew a three-judge opinion that began (in relevant part), "I violently dissent." "What were the rights of the common law wife [who caught her common law husband in adultery with another woman] -- to walk away, taking no action whatever to prevent the act of adultery, or its completion? That is directly at variance with the law of Georgia!" (Note that the dissent wasn't just arguing that the defendant should have had the benefit of the old rule, however wrong, but seemed to be defending the rule itself, and arguing that the rule justified killing of the spouse as well as of the spouse's paramour.)

A pretty appalling state of affairs, and shocking that it persisted until 30 years ago.

(except, of course, when God forbid that people should ignore demographic data): The Feminist Law Professors blog writes:

[TITLE:] Oh for the love of...

Exactly what possessed Eugene Volokh to look into the sexual orientation of female law profs whose scholarship gets cited a lot? See his "update" at end of this post and try to avoid banging your head on the computer monitor.

Hmm — what would possess an academic to look into disproportionate representation by sexual orientation when one is looking at data showing disproportionate representation by sex and ethnicity? Could it be academic curiosity? A desire to find — and then to call attention to — interesting data points that might help shed light on the degree to which personal attributes correlate with professional success, and potentially influence professional success?

Look, let's say the data I give did generalize beyond its very small sample. I stressed that it was quite limited, since it revealed only that 2 of the 6 women law professors on the list of the 50 most cited professors who entered law teaching since 1992 were lesbian or bisexual; at this point, it is at most very tentatively suggestive. But let's say it did lead some readers to look more closely, and find that indeed lesbians and bisexual women are substantially overrepresented among successful women in certain fields.

Wouldn't that be a matter of some scholarly interest? It doesn't matter what one thinks the cause for this disproportion might be: different patterns of discrimination by outsiders, different internal cultural norms within the group, different social and familial structures, biological differences, or whatever else. It doesn't even matter if one is unsure of the cause at the outset, but is just trying to find data that may eventually help identify the cause. Wouldn't the data be pretty interesting to people who are seriously interested in sociology, biology, demography, the legal profession, and a wide range of other fields?

To me, the glory of the academic life is that you're supposed to look for interesting data, bring it up to colleagues, investigate it, speculate about it, and the like. All people should be entitled to do this, but for us this sort of inquisitiveness is part of our jobs. It's too bad that identifying such data leads some to want to bang their heads against their monitors.

More broadly, if you're curious about human behavior — as a scholar or just as a fellow human — isn't there something striking and intriguing about the marked correlations between sexual orientation and participation in various professions? Male homosexuals are notoriously overrepresented in some fields, and while some such claims might at times be spurious, my sense is that on balance conventional wisdom reflects reality. Lesbians are also often said to be overrepresented in other fields (chiefly athletic, in my experience, though not only that); again, some of this may be myth, but I see no reason to assume that it's all myth.

Why is this? Is it culture? The effects of discrimination? Biology? Some mix of these factors? Does it relate only to different rates of interest in the fields, or also to different rates of success? Fascinating questions, it seems to me, and ones that get more fascinating as one acquires more data. So that's what possessed me, and I don't see what's wrong with such possession.

The Washington Legal Foundation> just put up a Web Seminar this morning on "The Ongoing Saga of Marshall v. Marshall: Beyond the Anna Nicole Headlines, Critical Legal Issues Lurk in Federal Court"; it should now be available at the WLF Web site. Some interesting procedural issues there, plus stuff on bankruptcy and probate — the things one instantly thinks about, of course, when one hears "Anna Nicole Smith."

The Atlanta Journal-Constitution reports (thanks to How Appealing for the pointer):

Douglas County District Attorney David McDade violated federal law when he distributed a videotape from a rape and child molestation case to legislators and journalists, the U.S. attorney's office said Wednesday.

U.S. Attorney David Nahmias said federal law prohibited distributing the videotape because it depicted minors engaged in sexually explicit conduct and warned that people who had received it would be in violation of federal child pornography laws.

The videotape was of the raunchy party in a Douglasville hotel room that led to the conviction of Genarlow Wilson on aggravated child molestation charges. Wilson was 17 at the time and the tape showed him receiving consensual oral sex from a 15-year-old girl. The video has been given to both reporters and legislators....

McDade told The Associated Press he was required to release the tape under the state's Open Records Act because it was introduced as evidence at the trial.

The distribution of such material would indeed normally be child pornography; and the federal child pornography ban would preempt any state law to the contrary. The questions, I take it, would be:

(1) Is there some implicit exception to the federal law as to videos such as this one, and what is its scope? I take it that there must be some such exception, or else the video couldn't even be handed from the police to the prosecutor in federal enclaves, such as D.C., but the question is whether the exception extends to distribution to the media and to legislators.

(2) Should the First Amendment be read as mandating an exception for videos and photographs that are evidence in a criminal trial, and seeing which may be helpful to understanding whether justice was done in the criminal process (which is to say whether the sentence was substantively sound, not just whether the procedures were followed) -- and, again, what should the scope of the exception be?

(3) Is there some state sovereign power limit on federal law, where the distribution or possession of the material is part of the state government's law enforcement process (this would apply to, for instance, e-mailing or mailing material within the prosecutor's or police department's office) or as part of the state government's compliance with its own public records laws?

I don't know what the answers to these questions are, but the issue struck me as worth flagging.

By the way, "Nahmias said his office issued the statement to end further distribution of the videotape and advised those who possessed it to destroy or return it." That is certainly very good advice for anyone who has the tape in his hands, and who is rationally risk-averse.

Reason's Hit & Run reports on a new Arizona statute (Ariz. Rev. Stat. § 13-3726) that would limit the use of names and pictures of dead soldiers. The law, which was apparently prompted by outrage over the sale of antiwar T-shirts that contain the names of soldiers killed in Iraq, reads:

A. A person shall not knowingly use the name, portrait or picture of a deceased soldier [defined as referring to any member of the U.S. armed forces] for the purpose of advertising for the sale of any goods, wares or merchandise or for the solicitation of patronage for any business without having obtained prior consent to the use by the soldier or by the soldier's spouse, immediate family member, trustee if the soldier is a minor or legally designated representative....

C. This section does not apply to the following:

1. The use of a soldier's name, portrait or picture in an attempt to portray, describe or impersonate that soldier in a live performance, a single and original work of fine art, a play, book, article, musical work or film or on radio, television or other audio or audiovisual work if the performance, musical work, play, book, article or film does not itself constitute a commercial advertisement for any goods, wares or merchandise.

2. The use of a soldier's name, portrait or picture for noncommercial purposes, including any news, public affairs or sports broadcast or account.

3. The use of a soldier's name in truthfully identifying the soldier as the author of a particular work or program or as the performer in a particular performance.

4. Any promotional materials, advertisements or commercial announcements for a use described in paragraph 1, 2 or 3.

5. The use of photographs, video recordings and images by a person, firm or corporation practicing the profession of photography to exhibit, in or about the professional photographer's place of business or portfolio, specimens of the professional photographer's work, unless the exhibition is continued by the professional photographer after written notice objecting to the exhibition by the portrayed soldier or a person who may enforce the soldier's rights and remedies.

6. A soldier's picture or portrait that is not facially identifiable.

7. A photograph of a monument or a memorial that is placed on any goods, wares or merchandise....

The law, it seems to me, is unconstitutional, for two reasons:

1. a. The T-shirts don't fit within the "commercial speech" doctrine, under which commercial advertising gets reduced First Amendment protection — the T-shirts aren't advertising (except insofar as the cover of any work, such as a book or a magazine, advertises itself), but rather speech sold for money. And the fact that speech is sold for money doesn't strip it of protection (whether it's a book, a movie, or a T-shirt).

b. The T-shirts also don't fit within any "right of publicity" exception that is likely to be recognized by the courts. The Supreme Court has held that state law may make actionable the taking of another's entire act (for instance, when a TV station rebroadcasts a "human cannonball" act); but that narrow exception doesn't apply here.

Some lower courts, most notably the California Supreme Court, have held that "nontransformative" use of another's name or likeness, such as a T-shirt or a coffee mug that merely contains a celebrity's picture, may also be restrictable. But the speech here is clearly transformative, in that it "add[s] something new, with a further purpose or different character, altering the first with new expression, meaning or message," "add[s] significant expression beyond" the "literal depiction or imitation of a [person] for commercial gain," and uses the person's name as "one of the 'raw materials' from which an original work is synthesized," as opposed to having "the depiction or imitation of the celebrity [be] the very sum and substance of the work in question." I have argued that the "transformative" test isn't clear or speech-protective enough; but even under this test, the T-shirts would be protected, and the statute would be unconstitutionally overbroad.

Even under the awful Missouri Supreme Court "Tony Twist" decision (which I have criticized here), it seems likely that the T-shirts would be protected. A court would have to engage in the mushy inquiry of whether the T-shirt "predominantly exploits the commercial value of an individual's identity" as opposed to having as its "predominant purpose" be "[the making of] an expressive comment on or about a [person]," but my guess is that for an overtly political T-shirt like this, in which the people's names are part of the political message, the inquiry would come out in the speaker's favor — and the Tony Twist case is an outlier among lower courts, which are generally more protective of speakers' rights in this context.

2. Moreover, even if a categorical restriction on the use of others' names and likenesses on T-shirts would be constitutional, a selective ban on the use of deceased soldiers' names seems to violate R.A.V. v. City of St. Paul, which held that even if a broad category of speech (there, fighting words) can be restricted, the First Amendment bars the selective restriction of content-based subcategories of the speech (there, fighting words that "arouses anger, alarm or resentment ... on the basis of race, color, creed, religion or gender").

The R.A.V. test is complicated and in many ways vague, but it does seem pretty clearly applicable here:

1. It's not the case that "the basis for the content discrimination [deceased soldiers' names vs. others' names] consists entirely of the very reason the entire class of speech at issue [speech that uses others' names without permission] is proscribable."
2. It's not the case that "the subclass happens to be associated with particular 'secondary effects' of the speech, so that the regulation is 'justified without reference to the content of the ... speech.'" (Recall that the offensiveness or persuasiveness of the speech, and the effects that flow from them, are not counted as secondary effects. "The emotive impact of speech on its audience is not a 'secondary effect.'")
3. This is not a generally applicable law that applies both to speech and conduct and that covers a particular subcategory "incidentally."
4. It is not the case that "the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot."

So, the bottom line: The Arizona statute is unconstitutional. So is a similar law in Louisiana, which is possibly narrower, but still unconstitutional for reason #2 and a version of reason #1. And so is a similar law in Oklahoma (21 Okla. Stat. Ann. § 839.1A), though reason #2 wouldn't apply because a nearly identical Oklahoma law equally covers the use of people's names and likenesses more broadly, without limitation to fallen soldiers.

Thanks to Nick Sarwark for the pointer.

An interesting post by Adrian Vermeule on the Oxford University Press blog.

A cool photo album. Thanks to Hanah Metchis Volokh for the pointer.

A good column from Jeff Jacoby (Boston Globe).

Adam Liptak at the New York Times reports:

A company that broadcasts cockfights on the Internet filed suit in federal court in Miami on Tuesday to challenge a largely untested federal law that makes it a crime to sell depictions of animal cruelty.

The owners of a Web site that shows cockfights says that though cockfighting is illegal in most states, it is legal in Puerto Rico, where the Web casts are from....

The constitutionality of the same law is at issue in a case before the federal appeals court in Philadelphia, in which a Virginia man was sentenced to three years in prison for selling videotapes of dog fights....

The relevant statute, 18 U.S.C. § 48, criminalizes (a) "knowingly creat[ing], sell[ing], or possess[ing] a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce," though with an exception for (b) "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value."

"[D]epiction of animal cruelty" is defined in (c) to include "any visual or auditory depiction ... of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the [jurisdiction] in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the [jurisdiction]." This means that it's a federal crime to distribute videos of cockfighting in, say, California (assuming the depictions lack "serious ... value") even if the cockfighting was legal in the place (Puerto Rico) in which the video was created.

The statute was enacted as an attempt to stop the distribution of so-called "crush videos," which generally depict a woman's legs and feet, often in high heels, stepping on insects, mice, or kittens; and it does indeed seem to cover such videos, assuming the relevant state law bars the underlying conduct (often yes as to killing kittens, often no as to killing insects). Don't ask me why people would want to watch this stuff, but apparently some get their jollies this way.

But on its face, the statute would also punish:

• A TV program showing foreign bullfights, which might be legal in the country in which they're taken, but illegal in at least some states in which the program is shown.

• A magazine with photographs of people illegally killing endangered species in a foreign country.

• A magazine with photographs of people committing cruelty to animals, aimed at exposing and punishing such cruelty, so long as the magazine is sold on newsstands or by subscription (rather than given away).

The drafters of the statute might not have wanted to punish this sort of material, but clause (a) does indeed cover it. Clause (b) might well exempt such material, but that depends entirely on how judges and juries interpret "serious religious, political, scientific, educational, journalistic, historical, or artistic value." One can certainly argue that all the above has such serious value, but at least as to the first item and maybe as to the others, some factfinders might conclude otherwise — the test is quite subjective, and some jurors or judges might well say "this bullfighting scene has no serious value; it's just aimed to shock, titillate, and get ratings."

Note also an important difference between this clause and the third prong of the obscenity test, from which the clause is borrowed: clause (b) doesn't say that the work has to be judged "taken as a whole." This means the "serious value" exemption under this law may well be a smaller safe harbor than the "serious value" exemption under obscenity law.

The statute doesn't fit within the existing obscenity or incitement exceptions. President Clinton's signing statement tried to cabin the statute by saying that the Justice Department should construe the law narrowly, limiting it to "wanton cruelty to animals designed to appeal to a prurient interest in sex"; that at least brings it closer to the obscenity exception, though not entirely within it. But the signing statement isn't part of the law, and is certainly not binding on later administrations.

The real question is whether the child pornography exception — the one exception that allows restriction of the distribution of speech because of the manner in which the speech was created — should be extended to cover the distribution of material the making of which involved harm to animals, rather than just harm to children. The argument would be that, as with child pornography,

1. production of cruelty videos can be done in secret, but the distribution has to be relatively public;

2. a ban on production will thus be very hard to enforce;

3. so long as there's money to be made in distributing cruelty videos, there'll always be someone willing to produce them; and thus,

4. to prevent the harm that takes place when the videos are made (injury to animals), one also needs to stop their distribution.

The argument against extending the child pornography exception would be:

1. The statute might end up suppressing a lot of valuable speech, such as the film of the bullfight and the like, and clause (b) is an inadequate safe harbor because it's much too vague.

2. The statute will in fact suppress more valuable speech than child pornography law does, because depictions of animal cruelty are more likely to be relevant to political debates or to legitimate art than depictions of sex (or of lewd exhibition of genitals) involving children.

3. The harm that the distribution of this speech causes — indirectly furthering animal cruelty — is much less severe than the harm of indirectly furthering sexual exploitation of children. (The legal system itself embodies such a judgment — child sexual abuse is a very serious crime, generally punished much more severely than animal cruelty. Cockfighting, in particular, is not even a crime in Puerto Rico, though Congress could have outlawed it if it wanted to. For more on when and whether it's legitimate for courts to draw such crime severity lines as a constitutional matter, see Crime Severity and Constitutional Line-Drawing, 90 Va. L. Rev. 1957 (2004).)

This also illustrates how the "slippery slope" can work in a legal system that's built on precedent and analogy. Crush video laws have indeed been advocated by their supporters as analogous to child pornography bans; and while courts might well draw the line between the two, perhaps on the grounds that child sexual abuse is just much more harmful than crush videos, the analogy seemed to be at least helpful in persuading legislatures to enact the laws.

Some might embrace the slippery slope here, if they think that cruelty videos should be banned. Some who disagree about cruelty videos nonetheless might accept the slippery slope risk, on the theory that child pornography is so harmful that we should have an exception for it even if there's some risk that the exception will spread further than one would like. (That's my view.) But one shouldn't pretend that the slippery slope risk doesn't exist.

UPDATE: Here's the Complaint in the lawsuit that seeks to have the law stricken down; the lawyer is David Markus, of the Southern District of Florida Blog.

As I mentioned last month, one occasionally sees a student law review article that is cited a great deal by courts — even a lot more than are most articles by tenured academics. Of the student articles I've seen that are published since 1990, the one most cited by courts is Janet Hoeffel's The Dark Side of DNA Profiling: Unreliable Scientific Evidence Meets the Criminal Defendant (Stan. L. Rev. 1990), which has been cited by over 25 cases and over 90 academic works.

I therefore thought I'd ask Prof. Hoeffel, who now teaches law at Tulane, some questions about her article, so that other prospective authors may get some guidance or at least inspiration. Prof. Hoeffel kindly replied:

1. Why did you decide to write — and publish — your article?

I would love to say I had high and mighty goals in mind in my decision to write a Note. Nope. A mere requirement of the Stanford Law Review. I have always been a good worker bee — I do what I am told. I reach for the next brass ring as I was taught. I published the Note because the Review accepted it and I was flattered.

I have to tell you, though, that the topic was so hot that I completely burned myself out trying to constantly update the article. I skipped class and worked long hours into the night. Again, the ideals driving me were not high and mighty — mere perfectionism. If I was going to publish it, it had to include every last speck of information out there on DNA, down to the most recent news article. I never in a million years dreamed the article would prove to be so useful.

2. How did you get the idea for the article?

I scoured the earth for an idea for my Note, and flipped through the card catalogue (remember those?) and came across something on "DNA fingerprinting," as they called it. At that point, only one person had written an article about the new use of DNA typing. I was always strong in the sciences and forensic science interested me. I knew I was going to become a public defender so I set out to see whether this new science was ready for the prosecution of the criminally accused.

3. Did you find you learned useful things — whether about writing, about legal reasoning generally, or just about the area you were discussing — while writing the article?
4. Have you found that having published the article has helped you in your career?

What I found most useful was not the writing of the article (although I can blue book the hell out of an article), but the actual knowledge I acquired. I became an instant expert because so few judges or lawyers understood the science, or its fallacies.

When I became a staff attorney at the Public Defender Service in Washington, DC, I did trainings on DNA typing, and someone dubbed me the "Barry Scheck" of the office. I have given other trainings as well and people, amazingly enough, still turn to me as the expert.

The Note helped me get hired as a judicial clerk, at the public defenders, at a private firm, and obviously, it also helped me to get a job as a law professor, because I was ten years out of law school when I applied, with only this Note under my belt. The Note won an award or two in law school, so that helped pad the resume as well.

The most rewarding aspect of all of this, though, was its usefulness to courts and litigants. I am pretty certain that none of my articles will ever be as useful as that one was.

Ann Althouse makes a very good point:

I hate seeing people publicly humiliated for the sexual things they do in private. But the government is criminally prosecuting a woman, Deborah Jeane Palfrey, for what it says was a prostitution ring. These are federal charges, and the senator, David Vitter, has some responsibility for the laws that make this prosecution possible.

Vitter situates his misdeed in the realm of religion and private morality: ... "Several years ago, I asked for and received forgiveness from God and my wife in confession and marriage counseling... Out of respect for my family, I will keep my discussion of the matter there -- with God and them...." ...

Palfrey can't say God has forgiven her and walk free. In fact, Vitter's statement hurts Palfrey because it strongly implies that Palfrey was doing what she's accused of. Vitter's confession -- intended to move us to mercy -- links him to criminal activity, but only she is facing criminal punishment.... It's not a matter to be resolved within the realm of church and family as long as Palfrey is being prosecuted.

A lot of interesting things have been said about the gender makeup of Federalist Society events. But there's something much more complicated going on here, I think, than just the demographic makeup of Federalist Society regulars, or for that matter anything else that's specific to the Federalist Society. It may also be much more interesting — and possibly more troubling, depending on what you think the cause might be, and what causes along these lines you find troubling.

1. Most-cited law professors: Let's say that instead of going to a Federalist Society conference on Judge Bork (which had 19 panelists), you wanted to organize your own all-star conference with 19 law professors. And, wanting a proxy for scholarly reputation, you invited the 19 most-cited full-time law professors. (This is a highly imperfect proxy, but it's probably the most objective one we can use for this thought experiment. Note also that citation counts are for citations by law review articles, not by courts; that's just the data I happen to have.) How many women would there be at this conference?

Fortunately, Brian Leiter's 2002 most cited law faculty rankings give us an answer — one that's some years out of date, but that I suspect wouldn't differ much today. The answer is that 1 of the 19 panelists would be women; 18 of the 19 most-cited law professors (all but #15) would be men.

Of course, there's an obvious problem with that sample — most of the most-cited professors are in their 50s and 60s; when they were going to law school, there were few women in law school, and few women going into law teaching. For a better sense of the coming pattern (though not necessarily for a much better sense of what we might expect from conference invitations), we should be looking at a younger cohort. Let's avoid the gender imbalances caused by past gender imbalances in law school attendance by just inviting the 19 most-cited younger law professors, for instance ones who entered teaching since 1992 — conveniently, the result of another survey by Brian Leiter. And indeed this panel will not be 18/19th male.

It would be 100% male. Indeed, of the 50 younger scholars on Brian Leiter's list, only 6 (starting with #23) are women. Of all the cites to articles by those 50 scholars, only 8.7% are to articles by women. (See my spreadsheet based on the Leiter data.)

Again, I stress that citation counts are a very rough proxy for reputation, and they are biased among other things in favor of fields in which many articles are written. Within certain fields, the gender breakdown of the most-cited scholars may be quite different. And of course there are many women whose work has been heavily cited; the most cited active faculty colleague of mine at UCLA is Kimberle Crenshaw.

Still, the overall pattern of the data seems quite consistent, hard to dismiss as simply random or arbitrary, and thus quite striking. It also suggests that to the extent conference invitations are based in large measure on reputation, then if reputation is closely correlated with citation counts, it would be quite logical to see a lot of heavily male conferences.

2. Possible causes? Why, though, would this be? Women are 35% of all law professors, including 25% of all full professors. Women routinely graduate with top credentials from law schools; about 20-30% of Supreme Court clerks tend to be women. Why aren't we seeing 25-35% women among the top 20 most cited scholars?

Is it that scholars (whether just men or both men and women) are subconsciously or deliberately ignoring women's scholarship? Is it that women authors are being unfairly turned away by top journals? Is it that women are writing less, perhaps because they spend more time caring for kids? If so, how much of that is because the children's fathers refuse to do their fair share of the work, and how much of that is because the mothers value time with children more than the fathers do (and should the difference between the two causes matter)?

Is it that men tend to on average be more ambitious than women, more self-promoting, or more of whatever else that produces attention (quality-related or otherwise) for scholarly work, whether because of cultural reasons, biological reasons, or some mix of both? Is it that women tend to gravitate towards fields that for some reasons draw fewer citations? Are these effects chiefly present at the ends of the bell curve, or do they persist in considerable measure even further into the body of the bell curve?

These are difficult questions to answer, and perhaps even to ask — but they need to be asked if we want to think really hard about why we're seeing stark sex disparities in a wide range of legal academic contexts, from Federalist Society panels on.

3. Race and ethnicity: If you thought the sex picture was hard to explain, try this: If you look at the same top 50 most-cited who entered law teaching since 1992, you also see that (by my rough count, and judging by likely ethnicity, not by religiosity) 19 are Jews, a group that makes up 2% of the full-time working population. Part of this is the wild overrepresentation of Jews generally among the legal professoriate, a number that itself is hard to explain — Jim Lindgren's tentative survey from several years ago reported that 26% of law professors at top 100 law schools were Jews — but the numbers exceed even that.

Another 12 are Asians (meaning East or South Asians), a group that makes up 4% of the full-time working population. If you separate out South Asians (since in many ways it's just zany to lump Indians together with Chinese, or for that matter to lump together Chinese, Koreans, and Japanese), you'll find that 5 of the top 50 are South Asians, though South Asians make up 2/3 of 1% of the population. I don't recall precisely what fraction of the legal academy is Asian, but my recollection is that the fraction is no more than 5%, and thus far less than the 24% (or 10% for South Asians).

What's the reason for this? Subconscious tendencies to overcite certain ethnic groups? Disproportionate cultural distribution of various temperaments? Of attraction for certain kinds of intellectual questions? Beats me.

But look at this also another way: The 94% of the population that is neither Jewish nor Asian accounts for 30% of the total cites to articles written by the top 50 most-cited young scholars. Blacks make up 2 of the 50 spots, but once one excludes the Jews and the Asians, they make up 2 of the remaining 19 spots — a percentage not far different from the black population of the U.S. divided by the total non-Jewish non-Asian population. (The numbers would doubtless differ for the overall list of most-cited professors, not limited to those who entered teaching since 1992, but I take it that the more recent list is a better picture of where the profession is headed, especially as to Asians.) Query then whether the underrepresentation of blacks is underrepresentation of blacks as such or overrepresentation of some tiny minority groups.

So, there it is. I am most emphatically not making any claims that I know the causes of these patterns. And I'd love to hear others' similar analyses of other datasets. As I mentioned, the most-cited data is hardly the whole picture, and maybe there are even some glitches that undermine the representativeness of this particular set of 50 names collected with certain date cutoffs. I'm trying to ask questions here, not to give answers.

But I also want to suggest that one set of answers, or at least reactions, is misguided: If we're going to wonder about demographic disproportions in reputation-based legal academic contexts — such as conference invitations — it's a mistake to see the Federalist Society as particularly unusual. Our own profession's citation patterns show stunning disproportions that can't be put off to any Federalist-Society-specific practices.

UPDATE: Christine Hurt (Conglomerate Blog) has information on the gender breakdown of professors who publish in the Harvard Law Review.

UPDATE: If you want an even zanier data point to explain, note that of the 6 women in the top 50 most cited scholars who entered the field since 1992, 2 are listed in the AALS Gay, Lesbian & Bisexual Community Law Teachers list (which, to my knowledge, is a means for people to identify their own sexual preference, and not just their scholarly interest area). This suggests that the underrepresentation of heterosexual women is even more striking than one might have at first thought — but that lesbian and bisexual women are overrepresented compared to women generally, and in this particular (small) list overrepresented even compared to their fraction of the overall population . A different sample that is more weighted towards older scholars, the 120 overall most-cited, yields a disparity that is less striking but still quite substantial: of the 19 women, 2 are listed in the AALS Gay, Lesbian & Bisexual Community Law Teachers list. (According to Laumann et al., 4% of women report some same-sex partners since age 18, which I suspect slightly overstates the fraction who would report themselves as lesbian or bisexual; that 4% of women maps out to 2% of the public generally.)

The Federalist Society general tries very hard to make sure that panels as its conferences represent many different views, and not just those within the Society itself. There may be some exceptions (the tribute to Judge Bork seems to have had fewer liberal speakers than is the norm for us, though I expect that some libertarian speakers, such as the Conspiracy's own Ilya Somin, expressed views that differed markedly from Judge Bork's). But as a general matter, our panels are about as diverse as you're likely to see in the conferences of any ideologically minded organization.

Eric Muller (Is That Legal?) and Mary Dudziak (Legal History Blog) are unsatisfied by this: They fault the Bork conference, and, in Prof. Muller's case, another panel for having no women. I agree that people who care deeply about the sex of the person speaking should probably go to other organizations' events. (Federalist conferences often include quite a few women, but we don't try to provide any sort of sex balance.) On the other hand, people who don't care about the sex of the speakers but care about the substance — including on whether the substance reflects genuine diversity of views — should find Federalist conferences to be quite interesting.

The recent posts about the picture of Jesus in the Louisiana courthouse, with the inscription "To know peace, obey these laws," has again brought up some of the arguments that the ACLU is anti-Christian or anti-religious.

There is much I disagree with the ACLU about, including about the Establishment Clause. (I've criticized the Executive Director of the ACLU of Louisiana in particular here.) But I should note that the same ACLU of Louisiana sued on behalf of a Christian anti-gay picketer, rightly argued that the First Amendment protected his speech. And of course ACLU chapters in other states have likewise fought for Christians' rights. So one can certainly fault the ACLU's position on church-state, religious freedom, and religious speech issues; but one should do so without incorrectly caricaturing that position.

A while back, I switched from using a calculator (the calculator program on Windows, as it happens) to a spreadsheet (Excel). I've been very happy with the results; so has a friend of mine to whom I recommended this. It's probably obvious to most of you, but we didn't do it for many years after we got computers with Excel, so I figure it isn't obvious to some.

The main advantage is accuracy, and security about accuracy: When you're adding a list of numbers using a normal calculator, you can't be sure after the fact that you typed everything right. With a spreadsheet, you can see all the source data right there on your screen, and can check that you entered the right formula just by clicking on the total cell. And if you realize you made a mistake, you can correct the one wrong cell without reentering all the data.

Of course, you can also more easily save the data for the future, copy it into a document or an e-mail, and so on. But even if you know you don't need that, the ability to immediately verify that you've entered all the data right is enough to justify switching to a spreadsheet. And while some features of Excel and other spreadsheets may be quite complex, learning enough just to add a column of numbers is a matter of seconds.

So, again, this might be obvious to some of you (and perhaps useless to a few who don't have a spreadsheet program); but if my and my friend's experience is any guide, it's the sort of obvious thing that many nonetheless overlook for a long time.

Clarence Thomas Is Right, reads the headline to Fish's New York Times op-ed. (Recall that newspapers headlines generally aren't written by the authors of the articles, but here the headline is an accurate summary of Fish's view.) An excerpt:

Although Thomas does not make this point explicitly, it seems clear that his approval of an older notion of the norms that govern student behavior stems from a conviction about how education should and should not proceed. When he tells us that it was traditionally understood that "teachers taught and students listened, teachers commanded and students obeyed," he comes across as someone who shares that understanding.

As do I. If I had a criticism of Thomas, it would be that he does not go far enough. Not only do students not have first amendment rights, they do not have any rights: they don’t have the right to express themselves, or have their opinions considered, or have a voice in the evaluation of their teachers, or have their views of what should happen in the classroom taken into account. (And I intend this as a statement about college students as well as high-school students.)

1. I'm not sure what the right rule for K-12 student speech ought to be, but it seems to me there are very strong arguments for endorsing the constitutionality of the "teacher command" view of schooling, in which students are taught discipline and obedience first and foremost. There are doubtless benefits to providing more freedom for students, but my sense is that there are serious drawbacks to it as well.

Among other things, it may well be that constraint is especially important for students who are already in jeopardy of academic or other problems, or in schools that are already suffering from such problems -- disproportionately schools that educate students who are poor, come from broken families in which less discipline is present, or are surrounded by extra risk of drugs and violence. Eminently well-intentioned egalitarians, including ones who support liberty for adults, might well conclude that constraint for children is the way to achieve more equality (and even liberty) for society more broadly.

I'm not expert enough on the subject to know what works and what doesn't. But the "teaching kids discipline is the key to promoting equality and liberty for adults" approach strikes me as plausible enough that it at least can't be dismissed out of hand, whether by conservatives or liberals. The special role (and history) of K-12 education may well justify leaving the free-student-speech vs. pervasive-constraint decision to schools, and the practical realities may well justify many schools' endorsing the pervasive-constraint perspective. So even liberal fans of Prof. Fish shouldn't see the Fish/Thomas pairing as a particularly odd couple on this score.

2. It's also worth noting that Prof. Fish would apply a similar rule to college students -- a position that, I've argued, is supported by some aspects of Justice Thomas's opinion, though not by others. I take it that if Prof. Fish is serious about his parenthetical, then it would at least apply to the entire range of speech that Justice Thomas is discussing, though at a college level: speech either on campus or off it (even in entirely non-academic activities, see the Old Jack Seaver case that Justice Thomas cites favorably in his opinion), whether the speech is political or not (Justice Thomas, unlike Justices Alito and Kennedy, would allow the limitation of expressly political speech), and whether the speech expressly advocates illegal conduct or not.

Prof. Fish doesn't explain, unfortunately, why exactly such restrictions are necessary and proper. Justice Thomas might endorse them, even at the college level, if he thinks that's what the original meaning of the First and Fourteenth Amendments requires, but I take it that Prof. Fish is not an originalist and thus can't rely on that. And the intuitive arguments about the need for extra discipline and constraint for K-12 students don't easily carry over to college students, who tend to be adults, albeit young adults. Here's the heart of Prof. Fish's argument:

Educational institutions, however, are not democratic contexts (even when the principles of democracy are being taught in them). They are pedagogical contexts and the imperatives that rule them are the imperatives of pedagogy -– the mastery of materials and the acquiring of analytical skills. Those imperatives do not recognize the right of free expression or any other right, except the right to competent instruction, that is, the right to be instructed by well-trained, responsible teachers who know their subjects and stick to them and don’t believe that it is their right to pronounce on anything and everything.

That may well justify very broad teacher authority within the classroom, but it doesn't tell us much about what college student speech should be allowed outside the classroom, especially at events that are pretty far removed from normal pedagogy.

In any case, an interesting op-ed that struck me as worth noting. Thanks to Gerald Wachs for the pointer.