Here's the story of "America's only known Jewish Indian chief". Thanks to Eric Muller (Is That Legal?) for the pointer.

I've got to defend Mike Huckabee from Hot Air on this one. Hot Air complains:

Video: Huckabee says the Constitution is a “living, breathing document” ...

I’m not going to rant about this. I will point out that Huckabee’s position doesn’t square up well with the Constitution’s amendment process — a process laid out precisely because it ought to be difficult to change the Constitution, but change is sometimes necessary, and it’s necessary because the Constitution isn’t a living, breathing document. If it were, as the proponents of that understanding tend to believe, you can find meanings in the penumbras of what’s actually written, meanings that might in fact be at odds with the plain understanding of the words themselves, without having to amend the document to find the new meaning therein. And I will also point out that the “living, breathing document” argument regarding the Constitution comes not from conservative or constructionist thinking, but from the left.

Make of all that what you will. Huckabee’s “living, breathing” statement hits at just under 4 minutes in....

To Hot Air's credit, the post links to the video, and the video is pretty clear on what Huckabee was actually saying:

[Narrator:] [R]ecently, [Huckabee] came under fire for suggesting that the constitution should be amended so that it was quote, "In God's standards." I asked him about that comment earlier on AMERICAN MORNING....

MIKE HUCKABEE, ... PRESIDENTIAL CANDIDATE: The constitution, the genius and the brilliance of it was that it was intended to be amended. That's why African-Americans are considered people, because we amended the constitution. As we needed to, to make sure that we ended slavery. We amended the constitution so women could vote. There were a lot of amendments including the first one, which gives me the right to worship or you the right to speak out and have free speech. The second amendment, which gives us the right to bear arms.

Those are all changes to the original constitution. My point was that the constitution was a document. It's a living, breathing document written in order that it could be changed. The scriptures, however, were not written so that we would change them to adapt them to ever-changing cultural norms.

Huckabee was arguing that there's nothing inherently wrong with amending the constitution — precisely because (in Hot Air's words) "change is sometimes necessary." Huckabee's reference to "living, breathing document" simply means a document that must remain relevant to today's problems, and that thus should be changed when change is necessary.

It's true that the phrase is often used by those who urge some degree of judicial updating of the constitutional rules, and generally more such updating than conservatives such as Huckabee like. But whether Huckabee was deliberately trying to appropriate the other side's metaphor to illustrate the right way of making the Constitution "liv[e]" and "breath[e]," or used the words without thinking of the way the other side used them, he expressly made clear that he was talking about using "the Constitution's amendment process" rather than about the judicial reinterpretation that Hot Air is condemning.

As to the supposed tension with Huckabee's Web site, which says (in the part Hot Air quotes), "I firmly believe that the Constitution must be interpreted according to its original meaning, and flatly reject the notion of a 'living Constitution,'" I think the tension is rhetorical and not substantive. On the site, Huckabee is explicitly condemning the "living Constitution" approach in the sense of judicial reinterpretation of the Constitution: "The meaning of the Constitution cannot be changed by judicial fiat." In the interview, he's equally explicitly talking about changing the meaning of the Constitution through the expressly constitutionally provided amendment process.

I think Fred Thompson's response is also overstated, and reads more into the use of "living, breathing document" than the context warrants. But at least Thompson expressly acknowledges that "Governor Huckabee was talking about amending the Constitution," and faults him chiefly for "using code words that support judicial activism." [Conceivable conflict-of-something alert: I've contributed to the Thompson campaign, and I'm a member of Lawyers for Fred Thompson.]

Thanks to InstaPundit for the pointer.

Not often that you see a judge complaining about a "seditious doctrine." Here's one instance, though, from a November 2007 concurrence by Justice Richard B. Sanders of the Washington Supreme Court:

I also note with alarm the seditious doctrine sometimes embraced by our majority that even our Declaration of Rights is itself trumped by exercise of the state's police power, a power which a majority of my colleagues seems to believe with their new-found wisdom has no limits whatsoever.

Not just mistaken, unsound, and the like -- seditious.

Jeffrey Toobin e-mails:

Hi Eugene,

I just wanted to let you know that I've been reading the posts about my discussion of Kelo in the Nine with great interest. In light of what I've learned, I suspect I'll be making some changes for the paperback. Again, feel free to post this note and let folks know I welcome any other corrections, comments, etc. Cheers, Jeff

Naturally, I'm delighted to pass this request along.

A lot of advertising uses sexual appeals (not just nice-looking people, but something well beyond that). But it usually doesn't involve people fully dressed is snow gear:

Still, some people are up in arms, according to Consumerist:

A Target billboard depicting a woman spreadeagled over a Target logo with her vagina centered squarely on the bullseye has some parents and feminists all riled up. One of them, Amy from ShapingYouth.org, contacted Target to see if they realized, you know, that their ad had a woman's crotch centered on a bullseye.

Advice Goddess Amy Alkon has, I think, the better view: People dressed in snowgear who are in that position are usually making snow angels (or, in rare instances, doing a highly bowdlerized version of da Vinci's Vitruvian Man), not preparing for sex or showing off their vaginas.

Of course, we're all free to think that "when correctly viewed, everything is lewd," and titter at whatever we find titterable. But making a fuss about how vile these ads are says more about the fussmaker than about the ads.

This, of course, brings up this old chestnut:

A man goes to a psychiatrist. The psychiatrist shows him an ink blot and asks him what he sees. "A man and a woman having sex," the patient says.

The psychiatrist shows him another ink blot. "That's a man and two women having sex," the patient says.

The psychiatrist shows him another ink blot. "That's two men and a woman having sex," the patient says.

The psychiatrist says, "I'm afraid you're excessively obsessed with sex."

"Me!?," says the patient. "You're the one who's showing me the dirty pictures!"

It's here, and it looks like a great resource for publicizing -- and finding out about -- law-related conferences, calls for papers, and workshops.

From the Web page of The Astrological Magazine: "We regret to announce that due to unforeseen circumstances beyond our control, the publication of The Astrological Magazine will cease with the December 2007 issue."

(Hat tip: GeekPress.)

I've written before about Muslim requests for religious exemptions from generally applicable rules — chiefly to point out how similar these often are to non-Muslim requests for such exemptions, and to argue that we shouldn't get particularly exercised about them (though neither should we categorically accept them, any more than we should accept such requests from Christians, Jews, or others).

Reader Stephen St. Clair pointed me to the latest such request in the news (from the Washington Post):

Juashaunna Kelly, a Theodore Roosevelt High School senior who has the fastest mile and two-mile times of any girls' runner in the District this winter, was disqualified from Saturday's Montgomery Invitational indoor track and field meet after officials said her Muslim clothing violated national competition rules.

Kelly was wearing the same uniform she has worn for the past three seasons while running for Theodore Roosevelt's cross-country and track teams: a custom-made, one-piece blue and orange unitard that covers her head, arms, torso and legs. On top of the unitard, Kelly wore the same orange and blue T-shirt and shorts as her teammates.

The outfit allows her to compete while complying with her Muslim faith, which forbids displaying any skin other than her face and hands.

As one of the other heats was held, two meet officials signaled to Kelly and asked her about her uniform. Meet director Tom Rogers said Kelly's uniform violated rules of the National Federation of State High School Associations, which sanctioned the event, by not being "a single-solid color and unadorned, except for a single school name or insignia no more than 2 1/4 inches."

Rogers then told Kelly she was disqualified....

Now there is some controversy about whether the officials' objection was simply to the uniform's not being suitably single-colored, or to the uniform's covering the head. If the track and field organization only wants to impose color rules, to which to my knowledge Kelly and other Muslims wouldn't object, then there'd be no problem with that in general. I do think it was needlessly cruel to bar the girl from running in this event, based on what sounded like an honest mistake; it's not like her violation of the color rules would give her some unfair advantage over other runners. Still, insisting on compliance with such rules for the future wouldn't be at all objectionable.

But if an organization does insist on enforcing some rule (if there is one) against head coverings, that strikes me as wrong — likely not illegal or unconstitutional (unless it's motivated by hostility to Muslims, which I doubt), but needlessly harmful to young athletes. Just as male Orthodox Jews' desires to wear head coverings should be accommodated even in the face of otherwise uniform restrictions on athlete headgear (assuming there's no safety problem caused by the head coverings, for instance if they are sufficiently securely attached), and just as Sikh men's desires to wear turbans should be accommodated, so should Muslim women's desires to wear headgear and long pants.

Here's the basic problem: There are some restrictions that are of only modest importance to the government (or an educational organization or an employer or others), but are implemented because they impose only a slight burden on the average person. Yet for people in some religious groups, they impose a much greater individually felt burden, which is why they ask for an exemption.

Our society has a long, honorable, and generally highly beneficial (though not perfectly adhered to) tradition of accommodating a wide range of religious beliefs — of trying to make sure that people can have, whenever reasonably possible, all the rights and opportunities available to other members of American society without having to give up their religious views. This dates back over 200 years, with exemptions from oath requirements for Quakers and other groups, exemptions from military service for pacifist religious sects, and a wide range of other kinds of exemptions from otherwise generally applicable laws.

This doesn't mean we accommodate every request, no matter how burdensome to others. If an exemption would somehow hurt others, or substantially increase the burden on others, that will often be a good reason to deny the request. (Exemptions from military service, for instance, are understandably controversial on this score, and have always been limited in some measure.) It may even be proper to deny the exemption if the exemption would risk substantially hurting the exempted person; the organization involved might not want to be a party to such possible accidents. If there was reason to think that any garment required by the Muslim girl would either seriously risk heatstroke or tripping, or unacceptably cut off her peripheral vision so she would stumble or run into others, that might be reason to reject the request.

But I see no reason why there would be such an inherent danger here (at least if the garment is properly designed). And when an exemption is very cheap for the organization, and the main barrier is just an insistence on following the rule — a rule usually made without any real consideration of the stark burden it imposes on some religious observers — relaxing the rule strikes me as the right thing to do.

Again, this is not necessarily a legal obligation (employers are generally required to accommodate religiously objecting employees when doing so is very cheap, but other institutions usually aren't) and certainly not a constitutional one: the organization involved here may well be a nongovernmental one and thus not bound by the constitutional religious freedom provisions, and in any case it's likely that the constitutional provisions don't mandate exemptions in these sorts of cases even when the rule is government-made. But I do think that granting an exemption from a no-headgear policy would be the right thing to do, especially for an organization that is aimed at trying to encourage young athletes.

Finally, I realize that some might specifically object to Muslim head covering claims, on the pragmatic grounds that such coverings tend to reinforce the subjugation of women, and are therefore potentially harmful to society. I don't think that's generally a good enough reason to reject an exemption request; but here it strikes me as particular counterproductive.

Here is a Muslim girl who is engaging in an activity that is far from stereotypically feminine or subjugated. If she succeeds, and other devout Muslims girls follow her example and become more involved in sports and in competition, I think this help those girls, and incidentally help them undermine whatever norms of female subservience might exist in their communities. Conversely, if devout Muslim girl are excluded from such activities, I doubt they're likely to just set aside their head coverings and become good gender-egalitarian secularists (or Muslim reformers); rather, most of them are likely to retreat into more traditional pursuits. Religious accommodation thus strikes me as the practically wise thing to do, as well as the kind thing for the girls who seek the accommodation.

A surprisingly common legal concept, it turns out: "Severe or persuasive" and "severe and persuasive" appear nearly 100 times in Westlaw-searchable cases, and my quick glance at some originals suggests that this isn't just a Westlaw glitch.

The actual legal phrase, of course, is "severe or pervasive," which is what speech or conduct must be in order to create a "hostile, abusive, or offensive work [or educational] environment." "Severe or persuasive," though passes the spell-checkers and the casual eyeballing.

at USC this Saturday; an interesting gathering of critics of affirmative action (including Ward Connerly, Tom Wood, Gail Heriot, and others) -- wish I could be there, especially because of the discussions about the political future of anti-race/sex-preferences campaigns. From being at past conferences such as this, my sense is that this is going to be quite substantive, though intentionally focused on the anti-preferences side. I know a lot of these people from my work on California's Yes on Prop. 209 campaign, and respect them highly.

From a Beliefnet interview:

And the same thing would be true of marriage. Marriage has historically, as long as there’s been human history, meant a man and a woman in a relationship for life. Once we change that definition, then where does it go from there?

Christians and modern Jews do not approve of polygamy, but surely anyone who believes in the Bible has to acknowledge that it attests to the widespread existence of marriage between a man and multiple women. (Nor is Huckabee just saying "a man and a woman" as a slip for "heterosexual"; immediately after this, he goes on to distinguish "a man and three women.")

Now of course we see polygamy in plenty of cultures in recent human history as well — Islamic cultures, some American Indian cultures, and many more. And of course we have lots of historical evidence of men and women in a relationship that is not for life; consider ancient Rome, or for that matter the growing tolerance for divorce in Western Christian cultures over what is now centuries (remember Henry VIII?). But it's striking that here Huckabee is forgetting what is described in the Bible itself.

I should stress that none of this responds to the traditionalist case built on longstanding American or Christian traditions of heterosexual monogamy, or for that matter to a traditionalist case built on longstanding broad traditions of not treating homosexual unions as marriages. But Huckabee seems to be deliberately trying to make an appeal to supposedly universal (at least nearly universal) traditions that go beyond just rejection of same-sex marriage. And that appeal is just factually unfounded, as his own religious histories and his own profession (as minister) should teach him.

UPDATE: I had thought I'd made this clear in the original post, but let me repeat it: I'm objecting to Huckabee's "historical[]" claims, and saying they're inconsistent with the Bible's own account of history. I am not responding to Huckabee's moral claims; I am criticizing his attempt to buttress his moral claims with what strike me as factually unsound (and Biblically contradicted) assertions about what has been the case throughout "human history."

FURTHER UPDATE: My colleague Stephen Bainbridge (who's considerably more conservative on social issues than I am) agrees.

I e-mailed Tim Pastika, one of the three high school sophomores who codiscovered a new asteroid, asking whether he wanted to say something about his project. He promptly responded:

Thank you. My classmates and I were recently given a choice between making a color picture (of nebulas, stars, etc.) or looking for new asteroids. Personally I thought that searching for asteroids would be so much cooler than making a picture because we might actually discover something new. However, many of the classmates were scared off by the thought of extra homework. The funny thing is we probably had to do less work than any of the other students.

When we discovered the asteroid, my friends and I -- to tell you the truth -- didn't think much of it. We were really just searching for faint moving dots.... Then we found out how extremely rare for us high school students to find these kinds of things. Astronomy is definitely something I would consider doing in the future; it's great.

P.S. I am not sure if it is official yet, but we are pretty sure we have found THREE more undiscovered asteroids.

In any case, congratulations again to Pastika, Connor Leipold, and Kyle Simpson -- good work!

WISN-TV reports:

Three Racine sophomore students were notified on Monday that a celestial body they discovered during a science project had been verified as an asteroid.

The students at Racine's Prairie School will be able to name the asteroid, temporarily identified as "2008 AZ28," in about four years, according to the Minor Planet Center in Cambridge, Mass., the international authority on known objects in the solar system.

Sophomores Connor Leipold, Tim Pastika and Kyle Simpson were able to make the discovery thanks to technology provided from Calvin College in Grand Rapids, Mich., which is also the alma mater of the science teacher, Andrew Vanden Heuvel, school spokeswoman Susan Paprcka said.

Thanks to InstaPundit for the pointer.

A fascinating article in the New York Times City Room blog:

Brian Persaud ... asserts that he was forced to undergo a rectal examination after sustaining a head injury .... Mr. Persaud was taken to the emergency room at NewYork-Presbyterian Hospital/Weill Cornell Medical Center, where he received eight stitches to his head.

According to a lawsuit he later filed, Mr. Persaud was then told that he needed an immediate rectal examination to determine whether he had a spinal-cord injury. He adamantly objected to the procedure, he said, but was held down as he begged, “Please don’t do that.” As Mr. Persaud resisted, he freed one of his hands and struck a doctor, according to the suit. Then he was sedated, the suit says, with a breathing tube inserted through his mouth....

There's much more interesting factual detail, but not the thing I most want -- a link to the relevant court papers (such as the Complaint and any non-one-liner decisions by the judge). My sense, though, is that the hospital has only one possible defense: "It is not always clear what is the patient’s capacity to make decisions, especially if the doctor suspects a head injury."

The general rule is that touching someone (except in relatively de minimis ways, which this surely wasn't) without their consent is tortious battery. That's true even if one has wonderful medical motives; the doctor is supposed to get the patient's informed consent, and if he doesn't then the doctor is guilty of battery even if he saved the patient's life. There are exceptions, for instance related to compulsory immunizations, but they are generally aimed at protecting the health of others. Someone who's mentally competent may even refuse lifesaving treatment when that's clear to lead to his death; the assisted suicide debate focuses on whether others can provide him with deadly substances or tools, but it's generally well-established that someone who's mentally competent may demand that, for instance, life support be removed.

But sometimes, of course, the consent is unavailable, for instance because the patient is unconscious. And sometimes the patient may be found to be legally incapable of meaningful consent, for instance if he's insane. So the interesting legal (and moral) question here is: When there's suspicion that the patient may be incapable of consent (for instance, because of head trauma), and there's the risk of irreversible harm if the hospital takes more time to figure things out -- including if the hospital even takes more time to figure out whether the patient is indeed suffering from head trauma that might make him delusional -- may the hospital just go with what doctors find reasonable (and what most patients would usually accept)? I don't know the answer to that question, but I thought I'd pass it along.

There are also of course less broadly interesting but potentially dispositive factual questions as well -- for instance, if there were simple, quick, and effective alternatives that the doctors could have suggested instead, or if there was solid evidence that Persaud was indeed delusional, or if there was no real reason to think he was suffering from head trauma (other than his seemingly excessive reaction to an admittedly unpleasant but generally not horrible and possibly lifesaving procedure).

Reuters reports:

A successful blog "kind of opens the kimono and from a brand point of view lets people know who you are," says Rob Frankel, a Los Angeles-based branding consultant who has advised clients ranging from Re/Max to Honda Motorcycles and Sea World.

For the sake of our readers, my kimono stays closed. (Hat tip: How Appealing.)

That's one of the claims in Eke v. Mukasey, a case stemming from Eke's prospective deportation for committing an aggravated felony:

Eke claims that the government violated his due process rights by conducting his hearing by televideo rather than in person. Eke contends that if the IJ had seen him in person, the IJ would have recognized that Eke is in fact homosexual.

No dice, says the Seventh Circuit. (Note that the criminal law rules, under which a defendant and the witnesses must generally be physically present at trial, don't apply in administrative cases, such as immigration hearings.)

Haaretz reports:

The High Court of Justice will hear a petition Monday against sex-segregated public buses known as mehadrin lines, which are meant to serve the ultra-Orthodox community.

Orthodox American-Israeli novelist Naomi Ragen and the Israel Religious Action Center, the advocacy arm of Israel's Reform movement, brought the petition a year ago in a bid to sharply reduce the operation of sex-segregated buses and prevent men and women from being forced to sit separately.

The state argues that the segregation — with men sitting in front and women in back — is voluntary and that the companies operating the mehadrin lines "are prohibited from forcing the voluntary arrangement on the rest of the passengers who are not interested in it...." ...

In practice, however, passengers have complained that they feel coerced — sometimes by physical violence — into sitting in the designated section of the bus.

Ragen decided to file suit after unintentionally boarding a mehadrin line, Egged's No. 40 bus, toward her home in the Jerusalem neighborhood of Ramot in July 2004. "I found myself insulted, humiliated and physically threatened because I refused to be bullied into giving up my seat and moving to the back of the bus," Ragen wrote.

In addition, Miriam Shear, an Israeli-American woman on vacation from Canada, says she was slapped, kicked, punched and pushed by a group of ultra-Orthodox men in November 2006 when she refused to move to the back of Egged bus No. 2 on its way to the Western Wall....

I don't see anything the government can reasonably do about genuinely voluntary segregation, which is not enforced through the threat of violence. But if it is indeed not adequately dealing with the violence, that's pretty bad.

The more interesting question, though, is whether and when governments in liberal democracies should, if legislators so decide, be allowed to legally enforce sex segregation (something the Israeli government claims isn't happening).

I think the answer is "sometimes." I've argued, for instance, that girls-only sports teams should be allowed in government-run schools; I'm inclined to say that sex-segregated government-run schools should also be allowed, if there seems to be good data supporting their educational value at least to one sex (and especially both).

It's true that such "separate but equal" wouldn't and shouldn't be allowed for race classifications, but sex should not necessarily always be treated like race. For instance, I think it's legitimate for the government to accommodate people's desire to be shielded when undressed (or even when partly dressed) from the opposite sex, but not legitimate for the government to accommodate (even on its own property) people's desire to be shielded from other races. Such sex-based privacy rules are much less likely than race-based privacy rules to be motivated by group hatred or perception of group inferiority, and much less likely to be divisive along group lines.

At the same time, I'm inclined to say that such government-imposed sex segregation should generally only be allowed when there's a pretty serious benefit to doing so, beyond the religious, cultural, or personal preferences of some citizens (though I should acknowledge that privacy interests are not easy to disentangle from such preferences). So I'd say that governments ought not impose segregation on publicly-run bus lines or other public places (outside restrooms and the like). But I'd like to hear what others think.

I'd also guess that either voluntary or mandatory segregation would be more appealing to many if half the buses had the women at the back and half at the front, rather than always having the women in the back.

Finally, a few remarks I've seen online about this try to analogize this to the treatment of women in Muslim countries, such as Saudi Arabia. That seems like quite a stretch, even if the government were seen as being a participant in the bus segregation. First, the treatment of women by the government in those countries is very far from "separate but equal."

Second, while I do think sex segregation may tend to reinforce traditional sex norms, norms that have generally on balance substantially restricted women, the harmfulness of this tendency is related to how much women are indeed restricted in that particular country. It may well be wrong to have sex segregation even in a country that gives women many educational, professional, and public options (as Israel does), especially when the sex segregation takes place in a particular subculture in which women may still be held back. But it's much more harmful, I think, in a country that gives women many fewer options, and where the dominant culture and not just a relatively small subculture continues to repress women.

Ron Collins at the First Amendment Center poses an interesting question: Will the "public airwaves" argument — which has been used as justification for the Fairness Doctrine and other content-based broadcast regulations — be used to urge regulations on wireless downloads to e-book readers?

I hope not, either because radio and non-cable television will be upgraded by the Court to full First Amendment protection, or because the public airwaves argument would at least be limited so as to exclude nonbroadcast communication (though if you're serious about the notion that the government has more power to impose content-based restrictions when the "public airwaves" are involved, that notion would seem to apply to cellular communications as well as to broadcast ones). Still, Collins is right to note the potential dangers of the "public airwaves" rationale.

My colleague Jonathan Zasloff (Reality-Based Community) points to this slip by David Brooks in the New York Times:

All the habits of verbal thuggery that have long been used against critics of affirmative action, like Ward Churchill and Thomas Sowell, and critics of the radical feminism, like Christina Hoff Summers, are now being turned inward by the Democratic front-runners.

Uh, that would be critic of affirmative action Ward Connerly, not disgraced professor Ward Churchill.

UPDATE: Also, isn't it Christina Hoff Sommers?

FURTHER UPDATE: "Churchill" corrected online, "Summers" not.

Late last month, an L.A. Times editorial reported that "In our America, 60 million people survive on $7 a day" — which is to say that 20% of the population survives on $2555 or less a year.

That's obviously way wrong: As of 2006, according to the Census, 12.3% of the population lived at or below the poverty level, which was $10,294 for a single person and $24,382 for the average family of five ($23,691 if one assumes only one adult and four children). Thus, even if all the poor people in the country were in families of one adult and four children (which I suspect substantially overestimates the average family size), that would mean 12.3% of the population surviving on $4600 or less, not 20% on $2555 or less. Naturally, I wouldn't want to live even on $10,294 per year, but the Times made a specific assertion about a particular number. It's pretty clearly a false assertion.

Annie Jacobsen (Pajamas Media) tries to track down the source of the error, in considerable detail; I encourage you to read Jacobsen's piece, which among other things suggests the Times is too ready to rely on advocacy sites rather than tracking down the facts itself. Among other things, Jacobsen reports that she questioned the Editorial Page Editor about this, in enough detail, I think, to put him on notice that there might be a problem there; my quick search, though, suggests that the Times hasn't published a correction.

Jacobsen's story also shows how careless or insufficiently skeptical editors can fall prey to a journalistic broken telephone: Once one tracks down the source of the $7 a day statistic, one finds it in this N.Y. Times story, which says -- with various sensible qualifiers -- that, according to IRS data, "the poorest 60 million Americans reported [to the IRS] average incomes of less than $7 a day each" (emphasis and bracketed material mine). "The I.R.S. data does not include the value of government benefits like food stamps, the earned-income tax credit for working families and subsidized medical care. It also excludes unreported income, which the Treasury Department and the I.R.S. have said is a major and growing problem among the highest-income Americans, especially those who own businesses, invest in stocks and have overseas financial interests." There's a lively debate in the comments to Jacobson's post about the N.Y. Times story, and the debate includes posts from the author to the story. But it's pretty clear that even if the N.Y. Times story is right, the L.A. Times' indirect echo of that story is way wrong.

Thanks to OpinionJournal's Best of the Web for the pointer.

I'm delighted to report that the judiciary's loss is our gain: Prof. Paul Cassell will be joining us a coblogger.

Paul is a law professor at the University of Utah and a leading scholar on victim's rights, criminal procedure, and sentencing; from 2002 to 2007, he served as a Judge of the U.S. District Court for the District of Utah. If you're interested, you can see Paul's extremely impressive c.v. here. Welcome, Paul, to our merry band!

It seems to me pretty clear that it may not, because such picketing -- whether related to labor issues, the merits of the movies the theater was showing, or whatever else -- is protected by the First Amendment, at least in traditional public forums such as parks or sidewalks.

The law may restrict the volume of the picketing, or the size of the group, especially if there's a serious security threat that may stem from the presence of a large group, or if the group is likely to block pedestrian traffic. In some situations, the law may create a 36-foot buffer zone if there's a serious risk of picketers' blocking entrances, and narrower restrictions have proven unavailing. The law may also require that people not approach within a few feet of a particular person to talk to the person without the person's permission. And the Court has upheld restrictions on residential picketing, stressing the special role of the home as a place where people should be able to retreat from controversy. But as a general matter, people -- especially in small groups -- are free to express their views in front of places of commerce and entertainment, even when offended listeners might be present.

The Ninth Circuit, though, held last week (Berger v. City of Seattle) that it's constitutional to ban speech to strangers -- even speech by one person -- within 30 feet of "any captive audience," including "patrons waiting in line for events" or eating in a seating area. The particular rule involved restrictions in a park, but a city sidewalk is just as much a traditional public forum as a park.

So this means that picketing, demonstrating, and the like, on city sidewalks -- even when engaged in by one person -- can be forced 30 feet away from any movie theater line, any outdoor restaurant seating area. Likewise, I take it that such speech can be forced 30 feet away from any employee whose job requires him to stand near a sidewalk, for instance a hotel doorman, an employee working as a sidewalk vendor, a maintenance worker, and the like. Those employees are, after all, even more "captive" than diners or people standing in line.

What's more, the court read Madsen's authorization of a 36-foot buffer zone outside an abortion clinic entrance as being justified by "captive audience" concerns related to "women entering an abortion clinic." The Ninth Circuit thus seems to suggest that an audience may be "captive" even to speech that it only needs to see briefly. If that's so, then any picketing or demonstrating outside any business would be seen as involving a "captive audience" of business employees and vendor employees who have to come and go through the front door, and perhaps of customers, too.

This strikes me as a pretty clearly mistaken result. It might not have been intended by the judges in the Ninth Circuit panel majority, who were talking about restrictions in a park and not on a sidewalk -- but, as I mentioned, parks and sidewalks are both treated as the same sort of place by First Amendment law (a traditional public forum), and if a restriction is allowed in a park, it would presumably also be allowed on a sidewalk. (If anything, restrictions on sidewalks may often be more justifiable because pedestrian traffic problems tend to be more serious on sidewalks.)

Moreover, while the particular plaintiff in the Ninth Circuit case was a street performer who made balloons, apparently performed magic tricks, "talk[ed] to his audience about his personal beliefs, especially the importance of reading books," and seemingly accepted contributions, the panel's rationale wasn't limited to people like plaintiff (nor am I quite sure just how it could be so limited). The panel upheld the captive audience rule on its face, and treated it (in relevant part) as banning "speech activities 'within thirty (30) feet of any captive audience ....'" It did not limit its decision to rules banning speech activities that solicit (expressly or implicitly) the immediate handing over of money, or to rules banning balloonmaking and magic tricks but allowing political or social advocacy. The decision is thus a precedent for restrictions that cover many more people than "Magic Mike" Berger.

Finally, I should note again that the Court has indeed accepted some kinds of restrictions on picketing in public places, as I said in the second paragraph of this post. The Ninth Circuit's decision is thus not a completely radical new step. But it does go far beyond, I think, the narrow restrictions that have been upheld, and covers speech that poses no real security risk, no threat to individual privacy, no material threat of blocking entrances, and no inherent danger of people trespassing on others' personal space (this is a 30-foot exclusion zone, not a requirement that one stay 8 feet away from people whom one is approaching).

And to the extent that one does see this as a logical extension of past decisions, that should be a reminder that the slippery slope from narrow restrictions to much broader ones is a real risk in a legal system that's built on analogy and precedent. Even when the precedents by no means require a particular result, and even don't justify it in the minds of many, some decisionmakers (here, judges) may read them that the precedents may end up justify many more restrictions than the precedents' drafters contemplated.

The Bergen County Record quotes:

In the full knowledge of the commitment that I am freely willing to undertake as a student, I promise to respect each and every member of the college community without regard to race, creed, political ideology, lifestyle orientation, gender or social status sparing no effort to preserve the dignity of those I will come in contact with as a member of the college community. I promise to Bergen Community College that I will follow this code of responsibility.

1. Honesty, integrity and respect for all will guide my personal conduct.

2. I will embrace and celebrate differing perspectives intellectually.

3. I will build an inclusive community enriched by diversity.

4. I am willing to respect and assist those individuals who are less fortunate.

5. I promise my commitment to civic engagement and to serve the needs of the community to the best of my ability.

There was some talk last Thursday about the possibility that "the college, ultimately, may opt for an 'aspirational' statement as opposed to a code," but the statement from a college spokeswoman Wednesday had been, "The pledge would not be optional .... If you don't agree, it is President Ryan's vision that you cannot attend the school."

Some of this just can't be taken seriously: "I promise to respect each and every member of the college community without regard to ... creed [or] political ideology ... sparing no effort to preserve the dignity of those I will come in contact with"? You have to respect people whose religious "creed" is that the Earth is flat, or that blacks or whites are morally inferior? You have to respect people without regard to political ideology, "sparing no effort to preserve the dignity of" Nazis or Stalinists?

But even if you set that aside, students are entitled to be selfish, or to channel their altruism in ways other than "civic engagement [or] serv[ing] the needs of the community," or not to have any interest in working to build inclusive communities enriched by diversity. And they are entitled to get the benefit of an education at Bergen Community College even if they take such personal views, which should not be the subject of any loyalty oath. If the College wants to require them to study certain topics, or even engage in certain extracurricular activities, it may so require. But under the First Amendment, it can't demand a pledge that students not only do certain things, but do them with the right attitude.

Interestingly, all this is defended as an attempt to "balance First Amendment rights with a need to bring civility into an institution." But even beyond the unconstitutionality of this particular balance, note that much of the proposal isn't about "civility" -- it's about enforcing a particular ideology of "civic engagement," "serv[ing] the needs of the community," and "assist[ing] those ... who are less fortunate," and excluding students who don't share this ideology no matter how civil they might be.