In response to my "She Says That as If It's a Bad Thing" post (the "that" referring to calling something the "Boston Tea Party"), a commenter writes:

How can someone say, "She Says That as If It's a Bad Thing"?

In English, we say, "She says that as if it were a bad thing."

"As if" should alert the writer that a "contrary-to-fact" construction, requiring the subjunctive mood, will follow.

A few thoughts in response.

1. In English we generally (though I acknowledge not always) say "we say" to mean "we say." The commenter seems to mean by it "we should say according to the rules that I think we should follow." But looking at what we really say (for instance, by using google) reveals that English speakers use both "say that as if it is a bad thing" and "say that as if it were a bad thing" — and apparently use the former more often than the latter.

So say what you will about what we should be saying, but don't dress it up in the supposedly objective garb of what we actually say and don't say. And, yes, this is a prescription, but one with a sound semantic basis: My claim is that "we say" generally comes across to readers as a descriptive claim, and it's therefore confusing and misleading to use it when one can at most support a prescriptive claim.

2. Even if the commenter is talking about what should be said under the "rules" of the language, I'm not sure that he would be right. To begin with, the subjunctive is largely dying, as various usage dictionaries (such as Merriam-Webster's Webster's Dictionary of English Usage) attest. Even if we take a prescriptivist approach, we would have to identify some reason to think that it is still obligatory, and I don't know of such a reason. Surely even hard-core prescriptivists must accept that at some point their prescriptions stop being obligatory — or else we'd have to keep using "thou" / "thee" / "thy" for the second-person singular familiar.

3. On top of that, I'm actually deliberately not trying to make a claim about whether "[the Boston Tea Party] is a bad thing" is "contrary-to-fact." My point is precisely that this view of the Boston Tea Party may well be perceived as a sound evaluation in some places (chiefly east of the Atlantic) and as unsound in others (chiefly west). Even when the subjunctive was more common than it is now, I'm not sure that the subjunctive would have been used in such contexts. Perhaps it would have been, but again that requires evidence and not just assertion.

But in any event, if I can just get prescriptivists to carefully say "we should say" rather than "we say" (when "we should say" is what they really mean), I'd be happy.

From a Reuters article about the Harry Potter publisher's reaction to book reviews published before the book officially went on sale:

A Bloomsbury spokeswoman called the New York Times review "very sad", adding that there was only one day to wait until the official release in book stores around the world. Twelve million copies of the book have been printed for the U.S. market alone.

She likened the events in the United States to the Boston Tea Party, a 1773 protest by American colonists against Britain....

Tip: That doesn't sound as pejorative on our side of the pond as it might on yours.

In any case, here's the Times' substantive response:

"Our feeling is that once a book is offered up for sale at any public, retail outlet, and we purchase a copy legally and openly, we are free to review it," a [New York Times] spokeswoman said.

"We came across a copy of 'Harry Potter and the Deathly Hallows' at a store in New York City and we bought it...."

Content-based speech restrictions imposed by the government as sovereign are almost always unconstitutional, unless the speech fits within one of the First Amendment exceptions. Content-neutral restrictions are often constitutional.

I have argued in earlier posts that the Court has been right to treat generally applicable laws that are content-based as applied much like it treats content-based restrictions generally. And I think the Court should treat generally applicable laws that are content-neutral as applied much like it treats content-neutral restrictions generally. The Court probably would not, and should not, have intervened if Hustler had inflicted emotional distress on Falwell by using loud bullhorns outside Falwell’s house. Nor would the Court have found a First Amendment violation if the NAACP had been sued for organizing a demonstration that blocked the entrance to Claiborne Hardware’s door, or if Schenck had been prosecuted for interfering with the draft by blocking a draft board office.

But why? The law, and thus the lawmakers’ motivation for enacting the law, would be the same in these hypotheticals as in the real cases. The law’s effect would be the same: The law as applied would restrict speech. What then is left to explain the difference? And if indeed the lawmakers’ motivation doesn’t have the importance that some assign to it, then what is the difference even between facially content-based laws and facially content-neutral ones? There are, I think, two main answers to these questions — a conceptual one and a pragmatic one.

The Conceptual Distinction: Under nearly every theory of free speech, the right to free speech is at its core the right to communicate — to persuade and to inform people through the content of one’s message. The right must also generally include in considerable measure the right to offend people through that content, since much speech that persuades some people also offends others. (There might be some limits on this right to offend, for instance if (1) the speaker is communicating to someone who has already said that he doesn’t want to hear the message, and (2) the speaker can stop speaking to this unwilling listener, while still continuing to try to persuade or inform other potentially willing listeners.)

Persuading and informing people may certainly cause harm; the listeners might be persuaded to do harmful things. But the premise of modern First Amendment law is that the government generally may not (with a few narrow exceptions) punish speech because of a fear, even a justified fear, that people will make the wrong decisions based on that speech: “[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments.... [I]f there be any danger that the people cannot evaluate the information and arguments advanced by [speakers], it is a danger contemplated by the Framers of the First Amendment.” Thus, punishing speech because its content persuades, informs, or offends especially conflicts with the free speech guarantee, more so than punishing speech for reasons unrelated to its potential persuasive, informative, or offensive effect.

Practical Effects — Content-Based Restrictions as Likely Greater Burdens on Speech: I suspect that the Court’s skepticism about content-based laws (whether facially content-based or content-based as applied) flows in large part from this conceptual distinction. But the conceptual argument is also reinforced by a pragmatic one: Allowing content-based restrictions (whether facially content-based or content-based as applied) is likely to burden speech more than allowing content-neutral restrictions.

(Note that I’ll treat the term “content-based restrictions” as roughly interchangeable with the phrase “restrictions triggered by the communicative effects of speech,” and the term “content-neutral restrictions” as roughly interchangeable with the phrase “restrictions triggered by the noncommunicative effects of speech.” Also, some commentators have also argued that content-based restrictions are more dangerous than content-neutral restrictions, because content-based restrictions often distort public debate by burdening one side of a debate while allowing another to be heard free of any such burden, but others have disagreed; my analysis neither relies on nor rejects the distortion argument — I focus on whether a restriction is likely to substantially interfere (as opposed to only modestly interfere) with the expression of certain facts or viewpoints.)

To begin with, a typical law aimed at noncommunicative effects is unlikely to excessively inhibit the communication of some viewpoint or fact, because many different media would remain available to the speakers. For instance, even a total ban on leafleting, justified by the desire to prevent litter, would still leave people free to communicate their views by the many media that don’t create litter — by displaying signs, using radio broadcasts, advertising in newspapers, and so on.

I think the leafleting ban would indeed interfere with public debate too much, but it can’t even come close to driving certain views entirely from public debate. Moreover, because the content-neutral law can potentially apply to a wide range of speakers, its scope will likely be limited by political forces. Thus, the most severe hypothetical content-neutral restrictions — for instance, a ban on printing, justified by the environmental harms caused by the process of making paper — are sure to remain just hypotheticals: They are politically implausible precisely because they burden so much speech.

On the other hand, a content-based restriction, whether facially content-based or content-based as applied, can outlaw most expression of certain facts or opinions. If a law, such as the laws in Schenck v. United States or NAACP v. Claiborne Hardware Co., bans any conduct that may cause a certain harm, and persuading people to act in certain ways can cause that harm, then any viewpoints that have the potential for such persuasion — the draft is evil, blacks should boycott white-owned businesses — would largely be prohibited. Because the law focuses either on the content of the speech or on the harm that the speech causes, it can block the speech in all media. And because it’s limited to a narrow range of speech, it may face less political opposition than broader bans might provoke.

Even narrower content-based restrictions, such as the laws involved in Cohen v. California or Hustler Magazine v. Falwell, can be quite burdensome. True, such restrictions only limit the particular words (in Cohen) or the level of vitriol (in Hustler) a speaker can use, and don’t ban the expression of a particular fact or idea. But as Justice Harlan rightly concluded in Cohen, even such restrictions can seriously interfere with people’s ability to express the “otherwise inexpressible emotions” that only certain kinds of words can effectively capture. Harsh contempt for a policy (the draft) or a person (Jerry Falwell) is itself a viewpoint that is subtly different from mild-mannered condemnation, and prohibitions on harsh language seriously interfere with the ability to convey this viewpoint.

[Coming Monday: Why can't this be dealt with using an "ample alternative channels" inquiry, under which restrictions — both content-neutral and content-based — would be constitutional if they leave open ample alternative channels for expressing the speaker's ideas, and thus wouldn't impose much of a burden on the speaker's speech? Content-neutral restrictions that leave open ample alternative channels are indeed generally constitutional; not so for content-based restrictions. Does this distinction make sense, or should the rule for content-neutral restrictions also be applied to content-based ones?]

can apparently get you criminally prosecuted in Turkey.

This statement was released in May, but I just learned about it:

[1.] The Committee on Non-Governmental Organizations (NGOs), acting on a complaint by China, this afternoon withdrew the general consultative status of Liberal International, a United Kingdom-based body that had won that status in 1995.

By a vote of 13 in favour to 3 against (Israel, United Kingdom, United States), with 2 abstentions (Peru and Romania), the Committee stripped Liberal International of its consultative status with the Economic and Social Council on the grounds that the organization had severely abused that status on 4 March by assisting a ranking official from China’s Province of Taiwan to gain access to a meeting of the Human Rights Council and advocate Taiwan’s membership in the World Health Organization (WHO)...

[Text moved:] The Committee resumed its consideration of a complaint in which the representative of China requested the withdrawal of consultative status from Liberal International, reiterating her delegation’s statement earlier in the week that the NGO, in promoting the secession of China’s Province of Taiwan, had failed to respect that country’s sovereignty and territorial integrity. The NGO’s behaviour was, thus, “severely” contrary to the principles of the United Nations Charter. The Committee had reviewed the case during the past week and it was now time to take action. Any delay would only indulge abuses of such nature.

As the representatives of Cuba, Sudan, Egypt, Angola, Burundi and Syria supported China’s request, those of the United Kingdom, United States, Romania and Israel said Liberal International should have the right to respond to the allegations and requested the Committee defer the matter to a later date.

The representative of the United States, speaking in explanation of position before the vote, said that, while his country acknowledged the “One China” policy, it did not support Taiwan’s application for full membership in the United Nations. However, it did support Taiwan’s meaningful participation in the technical activities of international organizations. The United States also supported Taiwan’s participation in international organizations for which statehood was not a membership requirement. Moreover, Taiwan had made no politically motivated acts against China during the Human Rights Council session.

Stressing that Taiwan’s membership in WHO was in the best interest of public health, he said Liberal International’s actions did not constitute a pattern that would warrant sanctions under Economic and Social Council resolution 1996/31. The Committee should bear in mind that the secretariat of the Human Rights Council had already taken full responsibility of the incident. The United States could not support China’s call to withdraw Liberal International’s status.... [End moved text.] [2.] As it considered new applications and reclassifications, the Committee granted special consultative status to the following organizations:

-- Inner Trip Reiyukai International, an NGO based in the United States that promotes peace, culture and education through information technology and training, values education, women’s empowerment through education and technology, youth initiatives, multi-faith dialogue, health care for AIDS victims and cultural restoration;

-- National Children’s and Youth Law Centre, an Australia-based organization that provides advocacy, information and education for children, and conducts legal research and policy development to improve laws and policies that impact children and promote their rights;

-- Bangladesh Women Chamber of Commerce and Industry, an NGO that supports women entrepreneurs through training, fair trade participation, exposure to domestic and global markets and loan guarantees;

-- Jamaica Association on Mental Retardation, an organization that aims to prevent and manage intellectual disabilities through advocacy, special education, educational assessment and placement, guidance and counselling, adult services and public education;

-- Microteam Education Apprentissage et Nouvelles Technologies, a Niger-based NGO that promotes new information and communication technology, trains primary and secondary school teachers and pupils to use computers and the Internet, and integrates information technology and the Internet into the country’s education system; and

-- Maryam Ghasemi Educational Charity Institute, an Iran-based NGO that promotes poverty eradication through free and universal education for children and through social development.... [3.] As the Committee took action on the deferred application for consultative status of the Jewish National Fund, the representative said in explaining his delegation’s position before the vote that the NGO had satisfactorily answered the Committee’s questions. It was not a politically motivated organization. Rather, it worked on sustainable development and environmental conservation issues, and the United States supported its application.

The representative of the Palestine Observer Mission said the NGO had not provided information to show it was not active in the Occupied Palestinian Territory. Its activities, including those with the Gizo Park project, violated the Geneva Convention and it should not be granted consultative status....

By a vote of 7 in favour (Colombia, Israel, Peru, Romania, Turkey, United Kingdom, United States) to 8 against (Burundi, China, Cuba, Egypt, Guinea, Russian Federation, Qatar, Sudan), with 3 abstentions (Angola, India, Pakistan), the Committee rejected the Jewish National Fund’s application.... [4.] The Committee also took action on the deferred application for consultative status of the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights, rejecting a motion to close that application by a vote of 7 in favour (Burundi, China, Egypt, Guinea, Qatar, Russian Federation, Sudan) to 7 against (Colombia, India, Israel, Peru, Romania, United Kingdom, United States), with 2 abstentions (Pakistan, Turkey)....

I'm not up on UN-NGO relations, but this struck me as an interesting set of data points -- any thoughts from people who follow the matter more closely than I do?

Commenter PGofHSM puts it well, responding to people who don't just complain about current speech restrictions, but argue that somehow we once had free speech but don't any more:

I'm still trying to figure out when the golden age of political free speech was.

A worthy challenge, I think. Let's even set aside sexually themed speech, purely commercial advertising, and epithets -- I think this speech should generally be constitutionally protected, but I'm willing to ignore that speech for purposes of this argument (since some of the people whom I'm generally trying to persuade believe that such speech is too far removed from political matters to merit protection). Let's focus on speech that is related to political, religious, or moral matters. When has such speech in the U.S. ever been materially more protected from government restriction, on balance, than it is now? I don't think there ever has been such a time.

I should say that I have argued against some relatively novel speech restrictions, such as hostile environment harassment law, or the recent broadening of restrictions on expensive speech about election campaigns. My point is simply that on balance speech protections, even when focusing on speech on political, religious, or moral matters, are about as broad today as they ever have been -- the high water mark having largely been achieved in the 1970s and 1980s, and on balance not materially retreated from since then -- and much broader than they often have been.

I just got my hands on my copy of Krattenmaker & Powe's Regulating Broadcast Programming, a very good book on the subject. A few highlights:

1. The Radio Act of 1927 authorized licensing decisions based on the content of the speech (despite its provision supposedly banning "censorship").

2. By 1930, the Federal Radio Commission was restricting what it saw as "propaganda stations," on the theory that "there is no place for a station catering to any group" (said in an opinion about a Chicago Federation of Labor station).

3. By the early 1930s, the FRC was also restricting "bitter and personal" and "ignoran[t]" "attack[s]" on "public officials."

4. This pattern of restriction continued for the following decades. In the 1960s WLBT, for instance, the FCC took steps (though not very strong steps) to restrict white racist television programming, on the theory that such programming didn't adequately serve black viewers. The D.C. Circuit eventually ordered the FCC to strip the station of its license.

5. Likewise, in the early 1970s, the FCC expressly warned broadcasters that it was against their public service duties to play songs "tending to promote or glorify the use of illegal drugs," and issued a 22-song "do not play" list, including "Lucy in the Sky with Diamonds," "Mr. Tambourine Man," "Truckin," and others. Radio stations generally complied (at least for a time).

6. The equal opportunities rules that had required broadcasters who chose to carry certain materials involving candidates to provide equal access to other candidates had been around since 1927. Their high water mark came in 1959, when a news reporting showing "Mayor Richard Daley greeting the president of Argentina at Midway Airport during a snowstorm" was found to trigger a duty to provide equal time to Daley's challenger (apparently something of a joke challenger) Lar Daly; this prompted Congress to provide some exceptions for news reports.

7. The Fairness Doctrine's "roots go back to the FRC's hostility to 'propaganda stations'"; this turned in 1940 into the decision that broadcasters "could never editorialize," and then was revised in 1949 into the doctrine that broadcasters could editorialize but had to provide access to rival views.

There's more, but this should give people a sense of how restricted broadcast programming has been for nearly all of its existence. I say this not to praise the restrictions; far from it. I'm glad that the Court has cut back on the restrictions, at least apparently imposing a viewpoint-neutrality requirement, and I hope the Court cuts back on them still more. I'm glad that the FCC has repealed the Fairness Doctrine.

But I hope this warns people not to complain that somehow some broadcasting restrictions show that "we don't have freedom of speech in America any more." Whether we're talking about political speech or speech more broadly, broadcast speech is at least as free today from government restriction as it almost ever has been, and considerably freer than it has been at many times in the past.

reports the New York Times; this also shows that checkers is guaranteed to be a draw if both players play optimally. Of course, it must also be the case that chess played optimally is a draw, that chess played optimally is a win for white, or that chess played optimally is a win for black (though the smart money isn't betting on that last one). It's just that we don't know the answer to that yet, or have a program that is guaranteed to win (or not to lose, if the optimal play yields a draw).

Note that, to be precise,

The new research proves that Chinook is invincible in the traditional game of checkers. But in most tournament play, a match starts with three moves chosen at random. In solving the traditional game, the researchers have also solved 21 of the 156 three-move openings, leaving a crack of hope for humans, at least for now.

Though of course that's not much of a crack, given that it seems likely that a computer program will very soon be able to optimally play all the games yielded by those openings, and lose only if the opening is inherently unwinnable and undrawable for it.

Thanks to my friend and computer science professor Haym Hirsh for the pointer.

A commenter on the NBC must stop running Fred Thompson Law & Order thread writes,

And they must also cease broadcasting any movies where Fred was an actor, such as The Hunt For Red October where he was a carrier admiral.

Because we don't have freedom of speech in America any more.

The first paragraph is right, but the second one misses the boat. Remember that radio and television broadcasting was heavily regulated in the U.S. -- considerably more heavily than it is today -- nearly from its birth. The "equal opportunities" rule is quite old. Its exceptions for news are actually a Congressional liberalization of the rule following an FCC decision in the late 1950s that applied the rule even to certain news coverage of candidates. The Fairness Doctrine, in various of its guises, was around for decades until it was repealed by the FCC in the late 1980s.

The underlying ideology behind all these restrictions, which is chiefly that the communications spectrum is scarce public property that is held more or less as a public trust by the licensees, and that the licensees must therefore be subjected to various restrictions and access mandates -- even when those mandates deter the licensees from carrying certain speech -- has thus been around as long as broadcasting has been. In some measure, recent decades have seen something of a retreat from the high-water mark of such restrictions.

Nor can one say that somehow free speech protection was pure until the 1920s or 1930s in the non-broadcasting media, and the broadcasting restrictions were a retrenchment from traditional protection. Before the 1920s and 1930s, courts upheld various restrictions on advocacy of illegal conduct, broad libel rules that had the effect of deterring not just falsehood but opinion and true statements, obscenity laws that went far beyond hard-core porn, restrictions (often enforced by judges using criminal contempt power) on coverage of trials and criticism of judges, and a wide range of other restrictions. And movies essentially lacked any First Amendment protection from the 1910s to the 1950s.

So one can certainly argue against restrictions on broadcasters; I sympathize with these arguments, and there's some reason to think that the Court would, too, if such a case came before it. But there's no justification for casting this as some sort of recent loss of traditionally recognized free speech protections. Where it comes to broadcasting, the general trend has been towards more protection of broadcaster rights (especially with the abolition of the Fairness Doctrine, though with a bit of recent retrenchment on vulgarity and nudity), not less.

or else face the obligation to give rival candidates equal time? The answer is yes, under 47 U.S.C. § 315(a):

If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provision of this section. No obligation is hereby imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any –-

(1) bona fide newscast,

(2) bona fide news interview,

(3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or

(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto),

shall not be deemed to be use of a broadcasting station within the meaning of this subsection....

Entertainment programming is not included within any of these exceptions; and the FCC and the courts have ruled that appearances as actors or entertainers are covered as "use [of] a broadcasting station." See, e.g., Paulsen v. FCC, 491 F.2d 887 (9th Cir. 1974) (entertainment appearances by comedian and jocular Presidential candidate Pat Paulsen); In re Weiss, 58 F.C.C.2d 342 (1976) (broadcast of movies in which Ronald Reagan had acted); In re Culpepper, 99 F.C.C.2d 778 (same); 100 F.C.C.2d 1476 ¶ 34(d) (1984) ("If an actor becomes a legally qualified candidate for public office, his appearances on telecasts of his movies thereafter will be uses, entitling his opponents to equal time, if the actor is identifiable in the movies"); id. ¶ 34(e) (taking the same view for other broadcast appearances, for instance by "the host of a teenage dance show," "a radio disc jockey," and a minister on a religious program); see also Branch v. FCC, 824 F.2d 37 (D.C. Cir. 1987) ("equal opportunities" requirement is triggered when a TV reporter continues to appear on the TV program after announcing his candidacy for city council, even though he had long been a regular reporter, and even though his reporting was not directly related to his candidacy; none of the news exceptions were found to apply).

The FCC's repeal of the Fairness Doctrine does not affect this, since this is a Congressionally enacted statute that's separate from the Fairness Doctrine and outside the FCC's power to repeal. Arguments that entertainment should be treated like news coverage won't carry the day in court, since the statute clearly limits the exceptions to news coverage. (The "Provided, That such licensee shall have no power of censorship over the material broadcast under the provision of this section" language simply means that the broadcaster generally may not restrict what candidates say in various contexts. It does not exempt entertainment appearances from triggering the rule, even though those appearances were originally subject to the broadcaster's control.)

A commenter says "no," "according to the government diversity manual." It turns out the answer is more complex — it all depends on which program you look to. A few examples:

36 C.F.R. § 906.2(k) (Pennsylvania Avenue Development Corporation): "Hispanic — is an individual who is descended from and was raised in or participates in the culture of Spain, Portugal, or Latin America, or who has at least one parent who speaks Spanish or Portuguese as part of their native culture."

24 C.F.R. § 81.2 (The Secretary of Hud's Regulation of the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac)): "Hispanic or Latino — a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race."

40 C.F.R. § 35.6015 (Cooperative Agreements and Superfund State Contracts for Superfund Response Actions): "Hispanic American (with origins from Puerto Rico, Mexico, Cuba, South or Central America)."

Cal. Admin. Code § 97700.29 (Minority Health Professions Education Foundation): "For purposes of this chapter, 'Hispanic/Latino' means a person whose ancestry can be readily traced to Mexico, Puerto Rico, the Caribbean basin, or any other country of Central or South America where Spanish is the recognized official language. A person shall not be considered Hispanic/Latino solely on the basis of possession of a Spanish surname."

Cal. Admin. Code tit. 2, § 547.80 (Equal Employment Opportunity Program / State Work Force Data Collection and Evaluation): "'Hispanic' means any person whose origin is Mexico, Puerto Rico, Cuba, Spain, or the Spanish-speaking countries of Central or South America. It does not include persons of Portuguese or Brazilian origin, or persons who acquired a Spanish surname."

Cal. Admin. Code tit. 22, § 7130 (California Department of Aging): "'Minority' means an ethnic person of color who is any of the following: ... Hispanic -- a person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portugese culture or origin regardless of race." (Note then that to be a "minority" the Hispanic person must be "an ethnic person of color" of certain "culture or origin" -- but "regardless of race.")

Fla. Admin. Code Ann. r. 60A-9.001 (Office of Supplier Diversity): "Hispanic American: a person of Spanish or Portuguese culture with origins in Spain, Portugal, Mexico, South America, Central America or the Caribbean Islands, regardless of race."

asks a Stanford Law school "Addendum to NALP Workplace Environment Questionnaire." On the one hand, it's good that they are treating "diversity" as more than a code word for race. On the other hand, how would someone who is sincerely trying to answer this figure it out? Is a lawyer "openly religious" only if he wears religious garb or jewelry? Only if he publicly talks to people about his religious? And even if there are openly religious attorneys, what does that tell us about the firm's openness to lawyers of other religions?

One more, "For social events to which spouses, domestic partners, or guests are invited, are invitations clearly extended to the partners or guests of gay and lesbian attorneys?" I appreciate that gay and lesbian lawyers might in some firms feel uncomfortable bringing their same-sex spouses, partners, boyfriends, or girlfriends, and that this might cast something of a pall on the work environment for them. But are law firms really expected to formally write on all their invitations, "partners and guests of gay and lesbian attorneys welcome"? My guess is that the firms at which gays and lesbians are most accepted are precisely the ones who don't feel the need to mention sexual orientation on their invitations, and simply tell everyone that they should feel free to bring a guest.

I sympathize with people's concerns about whether a firm culture is open to people of various religions, to gays, and to other minority groups. And I also understand that when one is trying to gather and disseminate data on a large scale, the result will often look oddly bureaucratized. But some of these attempts to gather the data -- and, implicitly, to convey to employers how they are supposed to behave -- seem to me likely to be so imprecise as to be useless, and sometimes even counterproductive.

From the fourth edition of the Vault / Minority Corporate Counsel Association survey:

4. For this survey, minorities are defined as those whose race is other than White/Caucasian and include African-American/Black, Hispanic/Latino, Alaskan/American Indian, Asian, Pacific Islander, Middle Eastern and Multiracial. If your firm has not tracked and does not have data for one or more of these categories (such as Middle Eastern), you may include a footnote explaining which categories are not recognized by your firm. For example: "The totals above for minority men and minority women do not include Middle Eastern associates." Please note that for the purposes of this survey, "White" means "White/Caucasian" and does not include "White/Hispanic."

So is the Israeli a minority because he is Middle Eastern? Is he not a minority because it is not the case that his "race is other than White/Caucasian" -- but if that's so, then how would most Middle Easterners be minorities, given that under all the standard racial definitions with which I'm familiar Middle Easterners are considered white or Caucasian? Is the Israeli only a minority if his forbears case from the Middle East, as opposed to being from (say) Poland or Russia, and, if so, what should he do if he thinks your 2000-years-ago forbears did come from the Middle East?

Or are you supposed to say, "I know what the MCCA means, Israelis aren't real Middle Easterners or real minorities, because they're too Western, Middle Easterner means ..." -- means what exactly? Just people from poor middle Eastern countries? How about people whose well-educated parents left Iran following the fall of the Shah? Saudis? Are you supposed to try to decide based on how much discrimination the Middle Easterners are likely to face or have faced in America?

OK, now tell me what you do with Armenians. Does it matter whether they are from Soviet Armenia, Iran, or the Armenian diaspora? (I should note, by the way, that there are a lot of Armenian law students at least in the L.A. area.) Do they have to be Middle-Eastern-looking, as opposed to more East-European-looking?

I realize, of course, that there is imprecision in all measurement systems, and the imprecision, the opportunities for gamesmanship, and the difficulty to which people are put when they have to figure out identity labels for themselves and colleagues aren't reasons enough to abandon such inquiries. But they are costs to be kept in mind -- especially as groups keep getting added, and the costs and imprecision (who's "Middle Eastern"? "Asian"? "Hispanic"/"Latino"? "with disabilities or physical challenges"?) mount.

even when the speaker is aware that publicizing these identities may help others commit crimes against police officers; so the Tenth Circuit held last Friday in Alvarado v. KOB-TV. An interesting crime-facilitating speech case, and in some tension with some earlier cases involving witnesses (see footnote 18 of my crime-facilitating speech article).

A reader writes, responding to various calls for "sensible restrictions" on gun rights:

Anyhow, I propose sensible restrictions on the first amendment! Just sensible restrictions, e.g., the NY Times should not be able to publish anti-terrorist methods, like how the DoJ searches financial records to find terrorists. That's a reasonable restriction, isn't it? The NY Times already admitted that if they had to do it over again, they would sit on the story.

Perhaps if someone such as yourself were to (tongue in cheek) make such a proposal, the media morons might be able to see the problem with "sensible restrictions" on gun ownership — they might then wise up to the bill of goods being sold to them by the Brady brunch.

Well, the trouble with this argument is that there are of course already many sensible restrictions on what speakers, including the press, may say and write. As to the mainstream press, consider libel law, false advertising law, and copyright law. As to other speakers, consider incitement law, fighting words law, threats law, child pornography law, and obscenity law. Consider also restrictions on what government employees may say, including to the press, such as laws that make it a felony to leak income tax records, certain kinds of classified materials, and the like. And consider various content-neutral speech restrictions, such as bans on soundtrucks, laws regulating the time, place, and manner of demonstrations, and the like.

What's more, shifting from the descriptive to the prescriptive, some of us may disapprove of some of the restrictions (for instance, I disapprove of obscenity laws), but I expect that nearly all of us would accept some restrictions on speech. A categorical rule that all speech is protected, with no room for at least some sensible restrictions, would be a pretty poor rule.

Now of course one can argue that certain kinds of supposedly "sensible" restrictions aren't very sensible, for instance because they interfere substantially (and therefore unjustifiably, the argument would go) with people's ability to defend themselves, or because they are unlikely to accomplish anything and thus don't justify even modest interference with self-defense. One can also warn against the tendency to equate "sensible" restrictions with "reasonable" restrictions and there with the "rational basis" test, under which nearly any restriction — including a total ban on all guns — would be constitutional. Finally, one can resist attempts to articulate constitutional tests in terms of "sensible" restrictions -- the way First Amendment law has developed, for instance, is through courts evaluating arguments that some restriction is sensible, rejecting some arguments, and creating more precise constitutional rules (such as the tests for punishable incitement, libel, and the like) for those restrictions that courts agree are indeed sensible.

But it doesn't make sense to condemn in principle all calls for "sensible restrictions," on the theory that we wouldn't or shouldn't tolerate "sensible restrictions" on speech or press or other generally constitutionally protected activity. The law does tolerate some such restrictions, which we think particularly important and sensible. The law should tolerate some such restrictions, even if we think those restrictions should be fairly narrow exceptions to the rule of general protection of speech. American law has never taken an absolutist view with regard to speech protection. So the analogy to speech protections — already generally limited given the fact that different kinds of constitutionally protected activity raise different concerns, and analogies between activities can therefore only go so far — strikes me as a poor way to argue in principle against supposedly "sensible restrictions" on gun rights.

And, as readers of this blog know, I say this as someone who supports constitutional protection for gun rights, has written about state constitutional rights to bear arms, has often noted the possibility that even seemingly modest restrictions may lead to broader ones, and has often noted that many gun restrictions are highly unlikely to work. Consider how weak the argument I quoted above would be to those who support gun rights less than I do.

A reader asks:

Could you possibly cover the subject of states recognizing other state licenses? I have a driver's license from state A that state B must recognize. I have a marriage license from state A that state B must recognize. I have a carry license from state A that state B refuses to recognize. Why? How can this be changed?

The Full Faith and Credit Clause of the Constitution generally requires states to recognize out-of-state court judgments. There is, if I recall correctly, some authority (though not completely clear) that a state must also recognize out-of-state marriages.

But the Constitution otherwise leaves each state with the authority to decide who is licensed to do what within that state. Congress may in many situations preempt such licensing with federal legislation. If the activity is constitutionally protected, a state by definition may not interfere with it through a discretionary licensing scheme -- a state may not, for instance, require a discretionary license to publish newspapers (though it may sometimes require speakers to get licenses that must be issued under content-neutral conditions, for instance parade permits). And in some situations, if the activity is interstate and a licensing requirement will gravely and without adequate justification burden the activity, the state rule may violate the dormant Commerce Clause. But those are exceptions; the rule is that a state decides for itself who is licensed to do things there.

Thus, a state has no constitutional obligation to recognize driver's licenses from other states. I'm not sure whether there's some federal law mandating such recognition, or whether states just do it as a matter of "comity," which is to say out of a desire to work well with other states (and to get reciprocity for their own citizens). But in any event, such recognition was a democratic choice, not a constitutional command. Likewise, states can often do refuse to recognize out-of-state professional licenses, such as licenses to practice law or medicine.

So how can one get one's licensed recognized in another state? Well, if courts conclude that there's a constitutional right not just to own a gun but to carry one on one's person -- which a very few state courts have, some as to a right to carry open and one as to a right to carry concealed -- then the question will become moot: One then wouldn't need a license to carry concealed (or at least would be categorically entitled to such a license upon showing that one is a law-abiding adult and perhaps paying a nominal fee).

But if that doesn't happen, then the answer to "How can this be changed?" is through state-by-state legislation, and possibly also federal legislation (for instance, legislation conditioning various kinds of funding on a state's willingness to recognize out-of-state licenses). Not very likely at the federal level, I realize, but my understanding is that many states have indeed provided for recognition of out-of-state licenses, especially if the other state reciprocally recognizes such licenses.

the sex crime (sexual contact with a child under 14) prosecution -- even in juvenile court -- of a 12- and a 13-year-old who had consensual sex with each other. An interesting opinion, and an interesting occasion for a puzzle: Which court do you think this is?

To learn the answer, just click on the full opinion -- but try not to click until you read the entire excerpt:

When she was thirteen years old, Z.C. engaged in consensual sex with a twelve-year-old boy and became pregnant. The state prosecutor chose to file delinquency petitions against both Z.C. and the boy for sexual abuse of a child under [State] Code section 76-5-404.1 [basically, in this context, any sexual touching of someone under 14 -EV], a crime that would constitute a second degree felony if committed by an adult....

Because we conclude that the legislature could not possibly have intended to punish both children under the child sex abuse statute for the same act of consensual heavy petting, we hold that applying the plain language of the statute in this case produces an absurd result. [Footnote, slightly moved: It is undisputed that Z.C. and the boy engaged in more than just sexual touching, but we must analyze the absurd result question in the context of the law actually applied and the act with which the State chose to charge Z.C., not the law that might have been applied or the act with which the State could have charged Z.C.]

Sexual abuse of a child is one of the most heinous crimes recognized by our penal code. The gravity of this crime is reflected by the fact that it is punished as a second degree felony if committed by an adult. Child sex abuse merits serious penalties because of the extreme psychological harm that the perpetrator causes the victim. Therefore, like all forms of sexual assault, child sex abuse presupposes that a single act of abuse involves a victim, whom the statute endeavors to protect, and a perpetrator, whom the statute punishes for harming the victim.

The State, however, applies [State] Code section 76-5-404.1 in an unprecedented manner. By filing delinquency petitions for child sex abuse against both participants for sexually touching one another, the State treats both children as perpetrators of the same act. In this situation, there is no discernible victim that the law seeks to protect, only culpable participants that the State seeks to punish. We know of no other instance in which the State has attempted to apply any sexual assault crime to produce such an effect.

[Footnote: The primary fail-safe against the absurd application of criminal law is the wise employment of prosecutorial discretion, a quality that is starkly absent in this case. While the State makes no attempt to defend the prosecution's charging decision, it suggests that the particular offense selected by the prosecutor as the basis for the delinquency petition is not significant because a juvenile delinquency adjudication is not a criminal conviction, but merely a means to bring the juvenile within the guiding supervision of the juvenile court. If this is truly the case, it begs the question of why the prosecutor could not have accomplished the intended result by basing the delinquency petition on a victimless offense that more accurately fits the conduct at issue.]

We acknowledge that the legislature has demonstrated its intent to punish both participants in victimless, extramarital sexual activity under [State]'s adultery and fornication statutes. However, these statutes differ from sexual assault crimes, such as child sex abuse, in both the theory and degree of punishment. Rather than punishing an actor who has perpetrated a crime against a victim, these laws demonstrate the legislature's disapproval of the acts of both participants for violating a moral standard. Because these crimes do not involve a victim, they involve a lesser degree of punishment. Both adultery and fornication are punishable as class B misdemeanors. Thus, while the legislature clearly could have intended some degree of simultaneous culpability for both Z.C. and the twelve-year-old boy under the fornication statute in order to discourage their admittedly reckless and age-inappropriate behavior, it is absurd to conclude that the legislature intended to simultaneously punish both children for child sex abuse, a crime that clearly envisions a perpetrator and a victim.

A review of the floor debates regarding the 1983 enactment of the [statute] reveals no evidence that the legislature contemplated application of the statute to situations where the same child was both victim and perpetrator. Although we generally do not consult legislative history where the meaning of the statute is clear, after finding that the plain meaning has been applied in an absurd manner, we seek to confirm that the absurd application was indeed unintended by the legislature....

We conclude that the legislature could not have intended the child sex abuse statute to be applied to punish Z.C. for the conduct at issue. And the fact that this is a juvenile court disposition, in which the judge enjoys considerable latitude in crafting punishments and assigning state services designed to help the child, does not change our conclusion. No amount of judicial lenity to compensate for the absurd application of the law changes the fact that the application of the law was absurd to begin with. Moreover, labeling Z.C. with the moniker of "child abuser," even within the juvenile court system, can have serious consequences that were not intended by the legislature. A delinquency adjudication for sexual abuse of a child can lead to sentencing enhancements for any offenses Z.C. might commit while she is a juvenile or even as an adult if her juvenile record is not expunged. Such an adjudication also has the potential to affect any civil proceedings related to the custody of her child or any future attempts to seek child support from the father.

We therefore vacate Z.C.'s adjudication. We stress, however, that our holding is narrowly confined to the application of [State] Code section 76-5-404.1 in situations where no true victim or perpetrator can be identified. Even among children under the age of fourteen, there are unfortunately situations where an older or more physically mature child abuses a younger or smaller child. In cases where there is an identifiable distinction between the perpetrator and the victim, it is manifestly logical to conclude that the legislature intended to include such acts within the scope of [State] Code section 76-5-404.1. In Z.C.'s case, however, where both children were under the age of fourteen and were of similar age, where both children met the intent requirement of the statute, and where there was no evidence of any coercion or force, we conclude that application of the child sex abuse statute produces an absurd result....

Even though the plain language of section 76-5-404.1 allows Z.C. to be adjudicated delinquent for sexual abuse of a child, we conclude that the filing of delinquency petitions against both participants produces an absurd result not intended by the legislature because, like all sexual assault crimes, the statute presupposes a perpetrator and a victim. We therefore hold that the juvenile court erred in denying Z.C.'s motion to dismiss the delinquency petition. We remand this matter to the court of appeals with instructions to remand it to the juvenile court to vacate Z.C.'s delinquency adjudication.

A quick question -- if you own a copy of Academic Legal Writing, how did you decide to get it? Was it recommended by a professor? Was it recommended by your law review? Was it recommended by a classmate? Did you see it in a classmate's hands, and ask about it? Did you buy it because you saw me promote it on the blog? Was it recommended on another blog? Did you get it as a present from someone, and do you know how he got it? My publisher and I would love to hear your feedback on this. Many thanks!

Just got it in the mail, and like it a lot. I saw it years ago at an airport, was reminded of it a few days ago, and decided to buy it online.

The Paleoartisans site from which I bought it isn't really well set up for taking online orders; but if you e-mail [email protected] your name, address, credit card information (card number, expiration date, and the three-digit security code from the back — the very things you'd routinely use to buy things online), authorization to charge you $18.75, T-shirt size, and color (select from these), you'll get the shirt in a few days. And, no, I'm not getting any money (or free shirts) from them.

The one thing I'd have liked even more would be a similar T-shirt with the text "People's Front for the Liberation of Gondwanaland." Also ordered recently, though from different sellers: A Curious George shirt, matching father-and-sons Russian Winnie-the-Pooh (Vinni-Pukh) T-shirts (CafePress), a Cheburashka and Crocodile Gena T-shirt (also CafePress), and a Che Burashka T-shirt (also CafePress):

Orin points to a New Republic editorial that credits this quote to Judge Carlos Bea and Ted Olson:

Today, the view lives on in elite organizations like the Federalist Society, with which Roberts has long been affiliated. Indeed, the much-cited coda to Roberts's opinion — that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race" — is lifted almost verbatim from a 2005 dissent by circuit court judge Carlos Bea, also a Federalist Society booster, which itself recalls a slogan favored a decade ago by former solicitor general Theodore Olson, another Federalista.

Note, though, that Judge Bea actually credited the forbears of his quote, and he didn't include Ted Olson. Here's what Judge Bea wrote:

Or, as more recently said by the late Justice Stanley Mosk of the California Supreme Court:

Racism will never disappear by employing devices of classifying people and of thus measuring their rights. Rather, wrote Professor Van Alstyne, ‘one gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment [n]ever to tolerate in one's own life or in the life or practices of one's government the differential treatment of other human beings by race. Indeed, that is the great lesson for government itself to teach: in all we do in *1222 life, whatever we do in life, to treat any person less well than another or to favor any more than another for being black or white or brown or red, is wrong. Let that be our fundamental law and we shall have a Constitution universally worth expounding.’

Price v. Civil Serv. Comm., 26 Cal.3d 257, 161 Cal.Rptr. 475, 604 P.2d 1365, 1391 (1980) (Mosk, J., dissenting) (quoting William Van Alstyne, Rites of Passage: Race, the Supreme Court, and the Constitution, 46 U. Chi. L.Rev.. 775, 809-10 (1979)).

The way to end racial discrimination is to stop discriminating by race.

Judge Mosk, of course, was generally seen as a leading liberal California Supreme Court Justice. William Van Alstyne had been on the ACLU National Board of Directors until three years before he published his Chicago law review article. Many Federalist Society members do share the view (as, polls suggest, do many Democrats) — but the quote's origin seems to be pretty solidly outside the Federalist Society.

As I discussed earlier, First Amendment precedents generally makes conveying facts and opinions into a constitutionally immunized activity. Normally, the government may punish people for causing various harms, directly or indirectly. But it generally may not punish speakers when the harms are caused by what the speaker said -- by the persuasive, informative, or offensive force of the facts or opinions expressed (unless, of course, the speech falls within one of the First Amendment exceptions, such as incitement, false statements of fact, threats, and the like).

This is, of course, quite compatible with the Court's general jurisprudence of content-based restrictions; it just equally covers laws that are content-based as applied and laws that are content-based on their face. And this principle makes sense, because a law that's content-based as applied can restrict speech as much as a law that's content-based on its face. Moreover, such a law is indeed punishing the "speech element" of the communication rather than some "nonspeech element," see U.S. v. O'Brien.

This principle is in some tension, however, with claims (such as those made by Dean Elena Kagan and Professor Jed Rubenfeld) that the First Amendment is chiefly aimed at preventing government actions that are motivated by a desire to suppress speech. In the examples I've given, the lawmakers may have genuinely wanted to prevent a certain kind of harm, and may have been quite indifferent to whether that harm is caused by speech or by conduct. The drafters of the Espionage Act, for instance, might have sincerely wanted to punish all interference with military recruitment. But whether the Act was well-motivated or not, it should have generally been unconstitutional when applied to interference by persuasion.

In some of the examples, one can argue that the law is open to improper government motivations in its enforcement. For instance, the "outrageousness" test in the emotional distress tort, the "offensive conduct" test in breach of the peace laws, and the "offensive work environment" test in workplace harassment law are quite vague. Prosecutors, judges, and juries might well interpret them narrowly when they agree with the speech, and broadly when they disagree with the speech.

But in other situations, the law is pretty clear. Public speech that advocates draft resistance does seem likely to obstruct recruitment. A journal article that explains how fingerprint recognition systems can be evaded does seem likely to facilitate certain crimes by some readers. If applying the law to such speech would violate the First Amendment, the reason must flow from something other than the government's motive, which may well be quite pure.

Prosecutors may still have discretion in deciding whom to charge under those laws, and they may exercise that discretion out of a desire to suppress certain viewpoints, rather than to evenhandedly prevent the harm that the law is aimed at preventing. But that risk is equally present for any law that may be applied to speech, including generally applicable laws that are both speech-neutral on their face and content-neutral as applied.

So, if the cases I've discussed are right, then the constitutional problem lies in the law's being content-based as applied -- in its punishing speech because of the persuasive effect of the speech -- and not in the government's being motivated by a desire to suppress speech rather than to prevent harm. Though the Supreme Court has at times said that "[i]n determining whether a regulation is content based or content neutral, we look to the purpose behind the regulation," it has also acknowledged that "while a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary to such a showing in all cases." The better formulation is the one the Court has often used: A content-neutral law is one that is "justified without reference to the content of the regulated speech" -- and a law that is content-based as applied is indeed justified, in that application, with reference to what the speech communicates.

Tomorrow: More on why content-based speech restrictions are indeed generally more troublesome than content-neutral restrictions.

A substantial minority of American states allows people to use lethal force in self-defense (against a reasonably perceived threat of death, serious injury, rape, or some other serious crimes) only when the person can't avoid the danger by safely retreating. This requirement — which is sometimes called a "duty to retreat," but is really a limitation of the right to self-defense — generally doesn't apply when the defender is in his own home, and doesn't apply when retreat would be unsafe: For instance, a defender doesn't have to turn his back on an assailant with a gun in order to retreat.

But the theory is that when a safe retreat is possible, the use of lethal force is no longer necessary to avoid the threat, and therefore no longer justifiable. Better that the defender feel obligated to retreat than that even a guilty attacker get killed. Better that the defendant retreat than that there be a shootout which needlessly injures or kills bystanders, or leads to vendettas. And better that the "defender" retreat than kill someone in ostensible self-defense, but an ostensible self-defense that could be used as a cover for outright murder, for instance if the supposed defender really wasn't in danger, but made up the self-defense story (especially likely when the other witnesses to the confrontation are either the "defender"'s buddies or are dead).

The majority of American states disagrees, probably based on a combination of factors: that limiting self-defense this way interferes with defenders' liberty by denying them the right to stay where they have the right to be and at the same time defend themselves against illegal attack; that limiting self-defense this way interferes with defenders' dignity by forcing them to run away from danger; and that in practice it's so hard to determine when retreat is really safe that it's better not to second-guess defenders' judgment to stand their ground. In those states, lethal self-defense may be used against a reasonably perceived threat of death, serious bodily injury, rape, and some other serious crimes even when the defendant had the opportunity to safely retreat. My understanding is that some states have recently shifted to the no-duty-to-retreat camp.

But it turns out that in a few states, it's illegal to use even nonlethal self-defense if you can safely retreat. The treatises report that this is a very small minority view; even the Model Penal Code, which firmly endorses not just a duty to retreat but also a duty to give in to certain threats as a limit on lethal self-defense, rejects a duty to retreat before using nonlethal self-defense. Still, it appears that Iowa and possibly Minnesota (plus perhaps a few other states) take this view.

This means that if someone threatens you in a public place — even with just a fistfight — you are not entitled to defend yourself, again even only with your fists, if you are able to retreat safely. Your legal right to stay where you want to stay can thus practically be constrained by any bully who threatens you with a fight, even if you think you could physically defend yourself. Someone doesn't like your being with a date of a different race (or of the same sex) and threatens to beat you up if you don't leave a bar (or a street corner)? You have to leave, or if you stay and he starts beating you you would be guilty of assault if you defend yourself. Someone is just a bully who wants to have the fun of making you do what he asks (which is to get away from him)? Same situation.

A case in point, from an Iowa court [UPDATE: link fixed]: Michael Mette, an off-duty Chicago police officer, was sentenced to 5 years in prison in Iowa for punching Jake Gothard in the face, which led Gothard to fall, hit his head, and be seriously (though apparently not permanently) injured.

Gothard had a blood alcohol level of .270 when he got to the hospital. The judge agreed that Gothard and a friend of his were going after Mette and five of his friends, outside of Mette's house. The judge agreed that "It was reasonable under the circumstances to believe that harm might come to [Mette or his friends]." Mette and his friends were not the aggressors. (They may have behaved badly in one respect, which is by taking Gothard's cell phone out of his hand and leaving it in Jake's mailbox, but the judge didn't seem to conclude that this was what made Mette's later actions unjustified.) The evidence the judge related seemed to say, without contradiction, that Mette had hit Gothard only once, and that Gothard had just "pushed [Mette] at least two times, maybe three."

Yet the judge convicted Mette (who had opted for a trial without a jury) simply because "the defendant failed ... to retreat ... or walk away and call the police about the disturbance. Because of his failure to take these steps, the court cannot find that the self-defense justification is available to permit the striking of [Gothard]."

That seems to me wrong: Mette should not have been under a legal obligation to either (1) leave the street where he had every right to be, or (2) surrender the right to self-defense if he didn't leave the street. Perhaps the result should be different when one is using lethal force, though I'm not sure; and I realize that even seemingly nonlethal punches can end up being lethal (or can end up escalating a fight into something more lethal). But on balance, it seems right that the duty to retreat has been almost everywhere rejected as to nonlethal force: It in effects allows bullies far too much legal authority to constrain people's freedom.

Still, State v. Washington, 160 N.W.2d 337 (Iowa 1968), which seems to still represent Iowa law, does indeed put Mette in precisely that position. See also State v. Baker, 160 N.W.2d 240 (Minn. 1968). Mette is apparently appealing; let's hope Iowa courts will revise or limit the duty to retreat on appeal.

Thanks to Sean O'Brien for the pointer; thanks also to this Chicago Tribune opinion column by John Kass for providing an account of the situation, though I recommend that people who are interested in the facts of the case read the judge's opinion.

UPDATE: Thanks to commenter ak47pundit for pointing me to a recent Michigan law that generally abolished the duty to retreat, including the duty to retreat before using nonlethal force; I had originally mentioned Michigan as a state in which such a duty might exist, but have since removed that reference.