Benjamin Zimmer (Language Log) reports on this, and a quick experiment confirmed it. (Of course, as ABC News points out, it's not that someone at Microsoft is somehow deliberately anti-Obama; it's just that Obama wasn't in the dictionary -- that makes sense -- but Osama was, so the spell-checker suggested it.)

As the ABC story puts it, "When Fast Isn't Fast Enough, Spell-Checker Isn't Always Your Friend."

against Simon Glik, who recorded a police arrest, is here; thanks to Harvey Silverglate for the pointer.

Last semester, I for the first time recorded in my exam scoring spreadsheet the length of each answer. This let me figure out the correlation between the length and the grade.

Note that my exam had 13 multiple choice questions (which amounted to 1/3 of the grade) and one long essay (which amounted to 2/3 of the grade, and for which the median answer was about 3750 words). The students had four hours to do the exam, and the exam was open book and open notes.

The correlation coefficient of the total score (which combined the essay score and the multiple choice score) and the essay word count was 0.60, which is huge as correlations go. So longer is better, by a lot, right? The correlation between the total score and the word count for exams longer than the median exam was basically zero.

In fact, I sorted the spreadsheet by word count, and then added a column for each exam that measured the correlation between total score and essay word count for all exams this exam and longer (the Excel formula for the 5th shortest exam of the 81 total, for instance, was =CORREL(B5:B$81,K5:K$81), where column B was the total score and column K was the essay length). The column started at 0.60, got steadily smaller until the median, and then immediately past the median exam the column fell to basically 0 (-0.01, to be precise) and pretty much stayed that way as the exams got longer.

I also did the same with the correlation between the essay score and the word count. For that, the inflection point didn't appear until exam 50 out of 81, rather than 42 out of 81. That makes sense: Time spent on the essay is time not spent on the multiple choice, so there's some tendency for the longer essays (past a certain length) to have slightly smaller multiple choice scores.

Likewise, the correlation between essay word length and multiple choice score was mildly positive if we looked at all exams (0.12), but fell to basically 0 once one set aside the 17 shortest exams -- and once one set aside the 35 shortest exams, the correlation between essay word length and multiple choice score got to be -0.10 and stayed pretty much there (with some fluctuations).

Is this of any use to students? I highly doubt it -- it's hard to act on the advice, "write at least as many words as your median classmate," and in any event simply trying to make your exam longer is unlikely to make it better (even if longer is usually better, up to a point). Still, it struck me as an interesting data point; and perhaps some students might be happy to know that, past a certain level, quantity and quality aren't even correlated.

In any case, this is just one set of data; in past years, I didn't include the word counts in my spreadsheets, so I couldn't do the same analysis. But I'd love to see what other law professors find.

My post on the Muslim soldier's religious exemption demand reminded me of a point I made several months ago:

Recent years have seen a set of requests by Muslims for exemptions from generally applicable laws and work rules. A Muslim policewoman in Philadelphia, for instance, asked for an exemption from police-uniform rules so that she could wear a Muslim headdress. A few years ago, a Muslim woman in Florida asked that she be allowed to wear a veil in a driver’s license photo. Last year, a Muslim woman in Michigan asked that she be allowed to testify veiled in a small-claims case that she brought.

All these claims were rejected by courts, and likely correctly, though the arguments for the rejection are not open-and-shut. But some of the public reaction I’ve seen to the claims suggests that people are seeing such claims as some sort of special demands by Muslims for special treatment beyond what is given Christians, Jews, and others. And that turns out not to be quite so: While the claims are for religious exemptions for Muslims, they are brought under general religious-exemption statutes that were designed for all religions and that have historically benefited mostly Christians (since there are so many Christians in America).

The Muslim exemption claims are plausible attempts to invoke established American religious-exemption law, and they deserve to be treated as such -- even if there are good reasons for rejecting them, as American religious-exemption law recognizes. Let us briefly review this law, so that this becomes clearer.... [Go here to keep reading.]

This is an excellent example. People of many religious groups have demanded exemptions from military service. In some measure, American law has chosen to expressly accommodate them, for instance through the conscientious objector exemption for people who oppose all wars (which especially benefits Quakers and other pacifist groups). Some members of other religious groups have also demanded exemptions, for instance when they believed that as Catholics they had a religious obligation not to fight in wars they believed to be unjust. Their claims were considered and rejected, using the then-standard constitutional approach for considering religious exemption demands (which has now been reinstated as a federal statutory approach).

The Muslims are just the latest group to do so. Their objections may be somewhat different from the Catholics', in that to some Muslims they may turn on the religious identity of the people on the other side. But other Muslims' objections appear to be very similar to some more familiar religious objections; for instance, in the case I discuss below, one of the quoted Muslim scholarly opinions suggested a just/unjust war distinction that in principle sounds much like the rule asserted by the Catholic objector in Gillette v. U.S.. And more broadly, Muslims are simply taking advantage of a longstanding American tradition -- the tradition of often (though not always) accommodating people's religious objections to generally applicable laws.

Sometimes the Muslim objector's demands should be rejected and sometimes they should be accepted. But they shouldn't be seen as some striking innovation brought here by some foreign interlopers. One commenter to an earlier post about accommodation of Muslim female athletes complained that, when Muslims "come here, we're expected to conform to their rules, not the other way around." Yet that misses the point: One of our rules, which we've followed for centuries, is precisely that sincere religious objections -- whether brought by familiar religions or recently imported ones -- should often (not always, but often) be accommodated.

The Army Court of Criminal Appeals just handed down an opinion on this a few days ago, rejecting the claim, asserted by Sgt. Abdullah Webster as a defense to charges of "missing movement by design and disobeying a superior commissioned officer." A few highlights:

1. "Appellate defense counsel now assert the military judge erred in accepting appellant's plea because he 'did not freely plead guilty' and appellant's 'guilty plea was irregular and not freely given because the Islamic scholars ... forbade [defendant] from deploying to Iraq [and] doing so would condemn [appellant] to hell." The court says no: "It is irrelevant that appellant missed movement or failed to obey the orders of his superior commissioned officers based on religious motives."

2. Defendant also argues that the federal Religious Freedom Restoration Act provides a defense, presumably because of his view that

Based upon the advice given to me by Islamic Scholars ... the conclusions were: 1. Consensus was that this [sic] no Muslims are permitted. 2. Muslims are not allowed to kill another Muslim except under three conditions . . . . Given the religious ruling, any combatant role I undertake would jeopardize my belief and place me in an unfavorable position on the Day of Judgment.

RFRA provides that, when the federal government substantially burdens a person's religious practice -- for instance, by requiring him to do something that his religion forbids -- the person is entitled to an exemption (even when the law is generally applicable, and doesn't single out religious people for special burden) unless the government shows that applying the law to the person is the least restrictive means to serve a compelling government interest.

The court says no: Even if the order burdened defendant's religious practice (which the court assumes for the sake of argument),

The Army has a compelling interest in requiring soldiers to deploy with their units. As the Supreme Court has said, “[i]t is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” The Army’s primary mission is to maintain national security by fighting and winning our nation’s wars. The Army cannot accomplish this primary mission if it cannot deploy, in a state of military readiness, the various units into which it is organized. Giving soldiers the option to decide selectively whether they wish to participate in particular military operations would undermine the readiness of all units to deploy, and thus compromise the Army’s mission and national security.

In this case, the Army furthered its compelling interest in the least restrictive manner possible. Although the Army required appellant to deploy with his unit, the Army made numerous allowances for him. The Army afforded him the opportunity to request relief as a conscientious objector. The Army gave him the right to request reasonable accommodation of his religious practices. Finally, although apparently not required to do so by any regulation, appellant’s commander generously allowed appellant to deploy with his unit in a non-combatant role....

As the Supreme Court has stated, “to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps.” ... “The inescapable demands of military discipline and obedience to orders cannot be taught on battlefields; the habit of immediate compliance with military procedures and orders must be virtually reflex with no time for debate or reflection.”

Sounds quite right to me. I should also add that the Supreme Court held in Gillete v. U.S. (1971) that people weren't entitled to a religious exemption from the duty to serve in the military, beyond what was provided by the limited conscientious objector exception (which applies only to those who object to all military service, rather than to those who refuse to fight in what they see as "unjust" wars). Gillette was decided during the era when the Court viewed the Free Exercise Clause as providing a presumptive right to religious exemptions; the Court later reversed that position, but the Religious Freedom Restoration Act basically reinstated the Gillette-era religious exemption doctrine as to the federal government, so Gillette would still be good precedent as to RFRA cases (though for some reason the Army Court of Criminal Appeals didn't cite it).

An interesting post by Prof. Mike O'Shea at Concurring Opinions on the Court's forthcoming Second Amendment case.

Again from Jennifer Rubin (Commentary): "Conservative lawyer, former Assistant to the Solicitor General and filibustered federal appellate court nominee Miguel Estrada says 'McCain' as well." For those who don't know, Miguel is both brilliant and solidly conservative.

Looks like a very interesting program, and a quick glance suggests it's a pretty balanced lineup. It will be happening on Friday, February 22.

From Jennifer Rubin at Commentary: "Ted Olson, fomer U.S. Solicitor General and conservative legal icon, has just informed me that he is endorsing John McCain."

I'd file an amicus brief in the Supreme Court's Second Amendment case supporting the individual right to bear arms (but with room for an unspecified range of "reasonable restrictions"). I'd then tout my position, and question the views of those of my rivals who didn't file such a brief.

Not that I'd expect the brief to matter much to the Court -- but I'd think it would be pretty good for my campaign, certainly if I'm a Republican but maybe even if I'm a Democrat who wants to appeal to the many pro-gun-rights Democrats and independents. Or am I mistaken?

Earlier this morning, I wrote:

It's true that blog posts are often less thought-through than articles or op-eds.... It therefore makes sense to check with the author before citing the post, in case the author wants to elaborate on it, or even recant it in some measure -- it's not necessary, but it can be helpful.

Tim Sandefur responded:

I must say I really disagree with the "check with the author" thing. Why? I never check with the author of a law review article or a book when I cite them. I can see that in some cases it might be helpful if you think the author could expand on some point, but that would probably be best done in a new post by that blogger.

When I cite a blog it is very often because I am citing someone whose views are contrary to mine, and if there were any point of etiquette that counsels me to ask permission or anything, that person would then refuse (or alter the blog post) and deprive me of a helpful reference. The fact that people can retroactively alter their blog posts makes it especially likely that a person who made a comment that later proves embarrassing will then try to weasel out of it when he's called on it in the form of a law review citation.

In my view, there's no more reason to request permission before citing in a law review than there is to request permission before linking to it from my own blog and criticizing it. If the person then chooses to alter the blog post or elaborate or whatever, that's fine, but why should I give him a chance to cover up his tracks before I criticize him?

Now, obviously blogs are, as you say, off-the-cuff, and they should be cited with that in mind (and if cited, should be read with that in mind). And you do say that there's no "rule" here, but I still don't think there's any reason to set out some guideline of etiquette that counsels any obligation on the part of a reader or writer to ask permission before citing a blog post. And I think there is an obvious downside in a bloggers' ability to go back and change his statements.

Here's my thinking: None of this is a matter of needing "permission" -- but it is a matter of making sure that debates are based on real disagreements, and not on misunderstandings, silly mistakes, or qualifiers that are omitted in the course of a casual conversation.

Say you say in a quick blog post, "Content-based speech restrictions are unconstitutional," and I have a paragraph in your article saying, "Some scholars argue that content-based speech restrictions are unconstitutional, but they're wrong -- after all, libel law, obscenity law, and many other constitutionally permissible laws are content-based." But you didn't really mean to argue that content-based speech restrictions are unconstitutional; you just omitted a "generally," or some other qualifier. What's the point of the back and forth? How does it help the reader, or the state of professional knowledge?

Or say you accidentally omit a "not" or an "un-," or make a similar typing error (not uncommon in quickly written prose). And say you don't notice this and your readers don't tell you (maybe you don't have a lot of readers who help you by sending corrections, or maybe they just weren't paying attention to this post). I then write "X says that content-based speech restrictions are constitutional, which shows what a minimalist he is when it comes to free speech" -- but it turns out I'm arguing not with your sincere beliefs or your edited prose, but with your slip of the finger. What's the point?

Nor is there much reason to worry, I think, about the person "covering his tracks" by modifying the post. If the original post is somehow especially telling, you can always cite the original (just save a copy of the original version, and note in your footnote that you're citing to the original version and not the updated one). Thus, for instance, if you think the original post really reflects the speaker's true views, and the revision is an attempt to disingenuously hide the beliefs that slipped out in a rare moment of candor, go ahead and cite to the original.

But if the person e-mails back sincerely saying, "Thanks -- I misspoke, and I've corrected the post to more accurately reflect my views [or the state of the law]," then what have you lost? At most the opportunity to engage in a debate with a view that might not actually be held by anyone, or to represent the post as your target's true views when it's actually just an error. Pat yourself on the back for being nice, and, more importantly, for sparing your readers a pointless debate against a view that even your target doesn't actually hold.

Now some of this is specific to law review articles that cite blog posts. If you're citing an article, you can be more confident that the author really means what he says there, because the author has likely reread the article several times, and confirmed that he didn't just misspeak. If you're writing a blog post that cites another blog post, you might not want the delay that often accompanies such queries. But if you're writing a law review article, you have the time to check things, and good reason to avoid needless debates.

Berkeley's and the far Left's latest bout of self-marginalization was cunningly planted by Karl Rove, and of course the neocons. On top of the lovely, pointless self-parody from the Berkeley City Council, check out this item, from the same news story:

Code Pink on Wednesday started circulating petitions to put a measure on the November ballot in Berkeley that would make it more difficult to open military recruiting offices near homes, parks, schools, churches libraries or health clinics. The group needs 5,000 signatures to make the ballot.

I mean, that wouldn't be even remotely effective, even if it were enacted and upheld against a preemption challenge -- it's just an attempt to insult the Marines. Karl and the neocons say, "Bwahahaha! Everything is going just as we planned."

The Contra Costa Times reports:

[T]he Berkeley City Council ... voted 8-1 Tuesday night to tell the U.S. Marines that its Shattuck Avenue recruiting station "is not welcome in the city, and if recruiters choose to stay, they do so as uninvited and unwelcome intruders."

In addition, the council voted to explore enforcing its law prohibiting discrimination on the basis of sexual orientation against the Marines because of the military's don't ask, don't tell policy. And it officially encouraged the women's peace group Code Pink to impede the work of the Marines in the city by protesting in front of the station.

In a separate item, the council voted 8-1 to give Code Pink a designated parking space in front of the recruiting station once a week for six months and a free sound permit for protesting once a week from noon to 4 p.m....

"I believe in the Code Pink cause. The Marines don't belong here, they shouldn't have come here, and they should leave," said Berkeley Mayor Tom Bates after votes were cast....

Oddly enough, in pretty much every city I've lived, I've been "uninvited" by the city council or any other organization representing the city. Nor would I have felt I was doing something rude or otherwise bad if the city council has announced that I was "unwelcome."

On the other hand, being labeled as "intruder" would have troubled me, because it seems to assert some sort of property rights on the city council's part. If a host declares me an intruder in his house, or a business on its property, I would have to leave. But here the Marines, I take it, are on private property that the commercial landlord has voluntarily rented to them. A little arrogant for the city council to decide who's an intruder as to all the private property in the city, no? (The same would go as to government-owned parcels of property or easements that are by law open to the whole public, such as roads or sidewalks.) Especially when it's quite likely that many Berkeleyans, even if only a minority, take a different view, and are entitled to themselves invite the Marines onto the property if they so choose?

Thanks to InstaPundit for the pointer.

People sometime ask whether it's proper to cite blogs in a law review article. A few thoughts:

1. Crediting Ideas, Big or Small: Not only is it proper to cite blogs to credit them for their ideas -- it's mandatory, if an observation in your article was borrowed from someone else's blog post, or even just if the blogger had the original observation first. That's the same rule as when you borrow from a law review article, an op-ed, or even a personal conversation.

2. But Check with the Author: It's true that blog posts are often less thought-through than articles or op-eds. (They're also unedited, but many op-eds aren't substantially edited by editors, and certainly not by editors who have knowledge of the law; yet op-eds are certainly citable.) It therefore makes sense to check with the author before citing the post, in case the author wants to elaborate on it, or even recant it in some measure -- it's not necessary, but it can be helpful.

3. Supporting Authority: If, however, you're making an assertion that you want to rely on without proving yourself, and therefore want to cite supporting authority for it -- as opposed to giving credit to the originator of an idea, or referring to a particular counterargument that was seems to be present only in a blog post -- then you should cite a law review article or a book. Those are the sources that are more likely to be the more thought-through and detailed expositions of the argument.

4. Factual Assertions: Finally, you should not cite blog posts for specific facts quoted or paraphrased by those blog posts, whether they are facts about cases, statutes, social science data, or whatever else. Find, read, quote, and cite the original source instead. But of course that's true not just as to blog posts but also as to articles, books, and other sources -- if they are quoting or paraphrasing another source, you should go to the original. Don't let the intermediate source's errors and oversimplifications become your errors and oversimplifications.

Last month, I linked to a story about someone who was "convicted of violating state wiretapping laws" for "conceal[ing] a camera to videotape a Boston University police sergeant ... during a 2006 political protest." I wrote that this was outrageous, but entirely consistent with a 2001 Massachusetts Supreme Judicial Court decision in Commonwealth v. Hyde, which is based on Massachusetts' extremely broad privacy law. The court there upheld a conviction of a person who had "secretly tape recording statements made by police officers during a routine traffic stop" of himself. This, I argued, was the dark side of "privacy" — a law aimed at protecting privacy ends up wrongly restricting people's liberty, and people's ability to protect themselves against police misconduct. Here's part of the court's rationale:

We reject the defendant's argument that the statute is not applicable because the police officers were performing their public duties, and, therefore, had no reasonable expectation of privacy in their words. The statute's preamble expresses the Legislature's general concern that "the uncontrolled development and unrestricted use of modern electronic surveillance devices pose[d] grave dangers to the privacy of all citizens of the commonwealth" and this concern was relied on to justify the ban on the public's clandestine use of such devices.

And this protection of "privacy" extends not just to allegedly misbehaving cops but even to kidnappers calling in ransom requests: "In Commonwealth v. Jackson, this court rejected the argument that, because a kidnapper has no legitimate privacy interest in telephone calls made for ransom purposes, the secret electronic recording of that conversation by the victim's brother would not be prohibited ...."

These incidents aren't necessarily an indictment of all such laws. Perhaps such a law could be properly drafted to exclude audiotaping of conversations with the police, or of conversations with people who one reasonably believes are trying to extort something from you or threaten you. But the incidents are a warning that not all laws proposed in the name of "privacy" are good, especially when they try to protect one person's privacy by constraining another's liberty to record conversations to which one is lawfully a party.

Now there's another such incident in the news; the Massachusetts Lawyers Weekly reports:

[Simon Glik] will stand trial on Jan. 29 in Boston Municipal Court on charges of wiretapping, aiding an escape and disturbing the peace for allegedly using his cell phone to record the arrest of a 16-year-old juvenile in a drug case....

Officer Peter Savalis alleges that attorney Simon Glik was walking in the Boston Common at 5:30 p.m. when he used his phone’s camera to videotape him and two other officers investigating a teen.

“[He] reached out and placed his arm into the officer’s way and held out a phone,” according to Savalis’ police report -— an accusation that Glik denies.

The report then states that [Glik] walked around the officers and continued recording the scene.

When one of the officers asked if he was using audio and video on the phone, Glik reportedly said: “I sure am using audio.” ...

I can't speak to whether Glik got close enough to the scene that he was physically interfering with the arrest of the suspect. But it shouldn't be illegal for him to audiotape the police officers (the subject of a separate charge, of which he could be convicted even if the jury finds he didn't physically interfere with the arrest). Yet under Massachusetts law, he may well be guilty, so long as the jury concludes that at least part of the tape recording happened before the officers realized that they were being recorded. Pretty bad.

Thanks to Harvey Silverglate for the pointer.

Prof. Mark Kleiman (The Reality-Based Community) and Prof. Michael Froomkin (Discourse.net) rightly condemn this move by some New York officials:

Richard Falkenrath, the NYPD's deputy commissioner for counterterrorism, ... and Mayor Michael Bloomberg have asked the City Council to pass a law requiring anyone who wants to own [machines that detect traces of biological, chemical, and radiological weapons] to get a permit from the police first. And it's not just devices to detect weaponized anthrax that they want the power to control, but those that detect everything from industrial pollutants to asbestos in shoddy apartments. Want to test for pollution in low-income neighborhoods with high rates of childhood asthma? Gotta ask the cops for permission. Why? So you "will not lead to excessive false alarms and unwarranted anxiety," the first draft of the law states.

Last week, Falkenrath made his case for the new law before the City Council's Public Safety Committee, where Councilman Peter Vallone introduced the bill and chaired the hearing. Dozens of university researchers, public-health professionals, and environmental lawyers sat in the crowd, horrified by the prospect that if this law passes, their work detecting and warning the public about airborne pollutants will become next to impossible. But Falkenrath pressed on, saying that unless the police can determine who gets to look for nasty stuff floating in the air, the city would be paralyzed by fear.

"There are currently no guidelines regulating the private acquisition of biological, chemical, and radiological detectors," warned Falkenrath, adding that this law was suggested by officials within the Department of Homeland Security. "There are no consistent standards for the type of detectors used, no requirement that they be reported to the police department—or anyone else, for that matter—and no mechanism for coordinating these devices.... Our mutual goal is to prevent false alarms ... by making sure we know where these detectors are located, and that they conform to standards of quality and reliability." ...

As the opposition mounted, Vallone pulled the proposed legislation just before the meeting's end and agreed to give it a second look.... He and his colleagues will try to accommodate all the concerns when they redraft the bill, he said, but one way or another, the cops are going to have this new power....

This is the very model of government paternalism, and likely counterproductive government paternalism at that. But Mark asks: Does it violate the First Amendment, because it deliberately interferes with information gathering?

I think the answer has to be: Nobody knows. The Supreme Court has said surprisingly little about restrictions on information gathering (as opposed to restrictions on information dissemination, which is what most of the Court's Free Speech/Press Clause caselaw is about).

We do know that generally speaking there's no First-Amendment-based information gathering defense to generally applicable laws, such as bans on travel to Cuba and the like. We also know that there's generally no First Amendment right of access to information that's in the government hands (except for a historically sanctioned presumptive right of access to criminal trials, which lower courts have reasonably extended to civil trials and to most court filings in civil and criminal cases).

But here the government is proposing the licensing of certain products precisely because of a fear that the products will be used to gather information, and then to disseminate the information in ways that the government claims might be misleading. That sure sounds bad, because the government's rationale is frankly concerned with the communicative impact of the speech that will eventually flow from use of the devices.

Moreover, the fear isn't just that the devices and the speech they facilitate will infringe privacy (a rationale for banning certain forms of information gathering, such as unauthorized recording of conversations, and potentially even the distribution of certain kinds of eavesdropping restrictions). Rather, it's that it will lead to speech that will mislead and frighten the citizenry into doing foolish things — a classically disfavored rationale in First Amendment law.

So I think there's a perfectly credible First Amendment argument against any such ban — as well as lots of first-rate policy arguments (for some plausible-seeming examples, see this American Industrial Hygiene Association letter). But there's no Supreme Court caselaw squarely confronting this subject, so predictions are hard to make (though if anyone can point me to some useful lower court caselaw on the subject, I'd love to read it).

UPDATE: Thanks to John Wilson from the UCLA Law Library, I now have the text of the proposed amendment:

The Libel Terrorism Protection Act. I take it that they're trying to protect against something they label "libel terrorism" (which is itself something of a misuse of "terrorism," it seems to me, even if it's understood as a play on "libel tourism"). But in any case, the name sounds at first like they're trying to protect terrorism, or libel, or libel terrorism, not protect against it.

The proposal itself -- providing that New York state courts need not enforce foreign libel judgments, if the foreign law provided less free speech protection than did U.S. law, and giving New York courts jurisdiction to issue declaratory judgments to this effect -- strikes me as sound. For more on why a nonenforcement policy is sound, see the Maryland high court's 1997 decision in Telnikoff v. Matusevitch. (We Russkies are a bunch of troublemakers.) But Libel Terrorism Protection Act is a funny name for the proposal.

The Archbishop of Canterbury's speech contains a passage that I thought worth quoting separately from my broader discussion below:

The grounds for legal restraint in respect of language and behaviour offensive to religious believers are pretty clear: the intention to limit or damage a believer's freedom to be visible and audible in the public life of a society is plainly an invasion of what a liberal society ought to be guaranteeing; and the obvious corollary is that the creation of an offence of incitement to religious hatred is a way of avoiding the civil disorder that threatens when a group comes to feel that it has been unjustly excluded. Since the old offence of blasphemy -– as we have seen -– no longer works effectively to do this, there is no real case for its retention. How adequately the new laws will meet the case remains to be seen; I should only want to suggest that the relative power and political access of a group or person laying charges under this legislation might well be a factor in determining what is rightly actionable.

Later on, the Archbishop echoes this legal point (though in a passage that chiefly focuses on moral questions):

The assumption of the naturalness of one's own position is regularly associated with an experience of untroubled or uninterrupted access to the dominant discourse and means of communication in one's society. If I can say what I like, that is because I have the power and status to do so. But that ought to impose the clear duty of considering, when I engage in any kind of debate, the relative position of my opponent or target in terms of their access to this dominant means and style of communication –- the duty which the history of anti-Semitism so clearly shows European Christians neglecting over the centuries. I have intimated that I think the law could and should take this into consideration where 'incitement to hatred' is concerned; but it is again primarily a moral question, the requirement in a just society that all should have the same means to speak for themselves.

Lovely: First, "language and behaviour offensive to religious believers" should be suppressed when they are "inten[ded] to limit or damage a believer's freedom to be visible and audible in the public life of a society" -- and of course the "limit or damage" stems from the message the speech communicates, not just (say) the physical noise created by the speech (which may physically keep people from being "audible"). But, beyond this, whether such "language" is to be punished should turn on "the relative position" of the offended religious believers, presumably relative to the speaker.

So I take it, in a magnanimous gesture, the Bishop of Canterbury would offer himself and his Established church less protection when it criticizes (if it ever does) Islam than Muslims would get when they criticize Anglicanism. But what if a Muslim apostate criticizes or insults (or both) extremist Muslims, or for that matter mainstream conservative Muslims? What if a Muslim criticizes Jews? What if an atheist criticizes Muslims, or vice versa?

And of course, as we know, different groups have different "relative power and political access" in different contexts. In much of America, atheists and even, more broadly, secularists have less power and political access than Christians generally or even conservative evangelical Christians in particular. But in some towns and on many college campuses, the matter might be different. I imagine there are similar differences within England. I take it then that an atheist's "language and behaviour offensive to [conservative evangelical Christians]" would be protected against criminal punishment under the Archbishop's proposed blasphemy law in most places, but not on college campuses where the "relative position[s]" are reversed.

What about "relative power" that stems not from political or financial influence, but from a willingness to use violence? If many critics of Islam are intimidated by the risk of violence from Muslim extremists, does that mean that a Christian's criticism of Islam would be protected because Muslims have more "power" to intimidate stemming from some Muslims' willingness to use violence -- or unprotected because the Muslims have less "political access" than the Christians?

Finally, the Archbishop's proposal gives supposedly low-power groups a quite remarkable sort of power -- the power to use government machinery to suppress "language and behavior offensive" to them, while their adversaries lack this power. How does that change the balance?

A pretty poor proposal, it seems to me, on many levels. But unfortunately it's the sort of poor proposal that many groups find appealing, in particular out of a misguided sympathy for the supposed underdog that leads them to undermine both liberty and equality.

The Archbishop of Canterbury, Rowan Williams gave a lecture about criticism of religion (thanks to commenter gs for the pointer, which let me revise the post to quote the original lecture, rather than the Times of London excerpts). Parts of the lecture that dealt with nonlegal questions were quite interesting and plausible; parts I couldn't fully assess, because they referred to other works that I haven't read, or details of various controversies (such as the English reaction to the original Salman Rushdie fatwa) that I hadn't followed carefully.

But the legal parts were quite striking, and in my view strikingly wrong. Williams was accepting the need to revise the existing English blasphemy laws, but gave the following thoughts about what should replace them:

The grounds for legal restraint in respect of language and behaviour offensive to religious believers are pretty clear: the intention to limit or damage a believer's freedom to be visible and audible in the public life of a society is plainly an invasion of what a liberal society ought to be guaranteeing; and the obvious corollary is that the creation of an offence of incitement to religious hatred is a way of avoiding the civil disorder that threatens when a group comes to feel that it has been unjustly excluded....

The law cannot and should not prohibit argument, which involves criticism, and even, as I noted earlier, angry criticism at times; but it can in some settings send a signal about what is generally proper in a viable society by stigmatising and punishing extreme behaviours that have the effect of silencing argument. Rather than assuming that it is therefore only a few designated kinds of extreme behaviour that are unacceptable and that everything else is fair game, the legal provision should keep before our eyes the general risks of debasing public controversy by thoughtless and (even if unintentionally) cruel styles of speaking and acting....

An appalling proposal, though I expect that many others would agree with it. Thanks to InstaPundit for the pointer.

I just looked at Brandeis's "harassment"-based speech code, which is available at the FIRE site; here's what it threatens to punish students (not just teachers) for saying (I excerpt the most troubling parts) -- and unfortunately such broad codes, drawn from hostile work environment law, are present at many universities:

[V]iolations of this policy will not be tolerated and may result in corrective actions up to and including dismissal from school ....

This policy applies to all Brandeis students, faculty and staff....

Harassment, whether sexual or based on an individual’s protected class status (of race, color, ancestry, religious creed, gender identity and expression, national or ethnic origin, sex, sexual orientation, age, genetic information, disability, Vietnam Era veteran, qualified special, disabled veteran or other eligible veteran status or any other category protected by law) is a form of discrimination and will not be tolerated. It is regarded as harassment when conduct: has the purpose or effect of unreasonably interfering with a person's education or work performance by creating an intimidating, hostile or offensive environment in which to work, study or live ....

Harassment may occur between supervisor/supervisee, faculty/student, within peer groups, or with third parties.

Examples Of Harassment

Depending on the circumstances, conduct which may constitute sexual harassment includes but is not limited to: ...

• ... [D]isplaying of sexually suggestive objects, pictures, cartoons or posters, suggestive or obscene letters or emails, notes, invitations or gifts;
• Making or using derogatory comments, epithets, slurs or jokes with a sexual content; ...
• Displaying, sending, forwarding, downloading or otherwise distributing sexual materials via the internet, computer or email ...

Examples of Other Forms of Harassment/Discrimination

There are other forms of harassment/discrimination as well that create a hostile educational or work environment on the basis of race, color, ancestry, religious creed, gender identity and expression, national or ethnic origin, sex, sexual orientation, age, genetic information, disability, Vietnam Era veteran, qualified special, disabled veteran or other eligible veteran status or any other category protected by federal or state law (together, “protected class status”).

Depending on the circumstances, the following are examples of behaviors that may constitute harassment/discrimination under this policy. This is not an exhaustive list:

• Jokes, comments or innuendoes that make fun of, denigrate or are based on an individual’s or group’s protected class status;
• Epithets or slurs based on an individual’s or group’s protected class status;
• Objects, posters, cartoons or pictures which make fun of, denigrate or are based on an individual’s or group’s protected class status whether directed to an individual, placed on University premises or displayed or circulated on campus;
• Displaying, sending, forwarding, downloading or otherwise distributing materials via the internet, computer, or email that make fun of, denigrate or are based on protected class status;
• Other verbal or physical conduct that denigrates or shows hostility or aversion towards an individual or group based on protected class status....

The University may take action on conduct that it deems to be inappropriate, regardless of whether it rises to the level of a violation of law.

These are not limited to statements said to a particular offended person. (In fact, one provision that I don't include above covers "Unwelcome sexual conduct toward an individual, including offensive comments, touching or sexual propositions"; no such limitation appears in the items I quote above.) Nor is there any exception for statements that are part of political, social, or religious debate, or for that matter of friendly conversation that happens to be overheard by others.

So if you distribute materials that make fun of Scientologists (which are based on "a protected class status," namely religion), and this is found to "unreasonably interfer[e] with a person's education ... by creating ... [an] offensive environment in which to work, study or live"), you're guilty. Likewise if you denigrate or show hostility towards fundamentalist Christians, or extremist Muslims, or veterans, or gays, or people who have certain disabilities (or for that matter certain "genetic information").

Likewise if someone concludes that your "sexually suggestive" objects, pictures, or cartoons "unreasonably interfer[e] with [their] education" (for instance, because they are very offended by sexual content, and see it in the dorms often, whether on people's T-shirts or doors). Likewise if people feel such "unreasonabl[e] interfer[ence]" because they overhear people's "jokes with a sexual content" (or should that be limited just to "derogatory jokes with a sexual content").

What constitutes an "abusive or offensive" environment? When does political or religious commentary "unreasonably interfer[e] with [people's] education"? Say that someone feels genuinely upset by the fact that others have the temerity to harshly condemn fundamentalist Christianity or extremist Islam or who knows what else, whether in student newspaper articles, at demonstrations, or in overheard conversations, and finds it hard to be excited about school as a result. Does that qualify?

Of course, I quite doubt that the policy is enforced often, or evenhandedly. But it's out there whenever someone (a student, a student group, or the administration) wants to make trouble for others who express certain kinds of views. Not what we ought to have at universities that try to take free speech and academic freedom, it seems to me. But inevitable once one asserts a supposed civil right to be free from "harassment," defined to include speech (including speech not directed at the offended person) that might offend based on race, religion, sex, and the like.

I'll be giving it next Monday, February 4, at noon in room HOL 360. It's open to the public, so if you're in town and want to stop by, please do. (I mention this because one of the readers asked about this in the Gainesville restaurant thread.)

If any of you are Brandeis professors or students, and thus have a special perspective on the Hindley controversy -- for instance, know something about the facts that the posts haven't discussed, or know something about public reaction to the question -- could you please post it in the comments below? Likewise, if you know some Brandeis professors and students, and can get something from them that you can post, then please do post it here. I'd love to know more than what is said the reports I've read.

If you do not have any special Brandeis-specific knowledge on this, and just want to speak to the merits of the question, please post your comments at the other post on the subject. Thanks!

When may state law allow grandparents to have visitation with their grandchildren, over the parents' objections?

Let's set aside cases where the parents' parental rights can generally be terminated, because they're found unfit. Let's also set aside the rare cases where the grandparents could be found to be "psychological parents" because (to oversimplify) they've taken a parental role, with the parents' consent, for instance by raising the children to for several years while the parents have been absent. And of course let's also set aside the situation where the parents are just delighted by maintaining a relationship between their children and their parents, plus don't much object to the free babysitting (Mom, Dad, if you're reading this, that means you!). Let's just take a situation where state law allows the grandparents some visitation rights, so long as such visitation is seen as in the child's "best interests," and the parents (or parent, if only one is in the picture) object.

In Troxel v. Granville (2000), the Supreme Court held that such visitation may impose an unconstitutional burden on the parents' rights, but didn't resolve exactly when this would be so. Rather, the Court stressed that the particular statute in that case -- which "permits '[a]ny person' to petition a superior court for visitation rights 'at any time,' and authorizes that court to grant such visitation rights whenever 'visitation may serve the best interest of the child'" -- was so broad that it was clearly unconstitutional. And, the plurality said, "Because we rest our decision on the sweeping breadth of §26.10.160(3) and the application of that broad, unlimited power in this case, we do not ... whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation."

I haven't followed all the post-Troxel cases from the state courts, but my sense is that most of them have generally held that a parent has a constitutional right to deny grandparents visitation, at least unless there's a showing that lack of visitation will substantially "harm" the child (and not just be against the child's "best interests"). The South Carolina Supreme Court, however, has just taken a different view (Marquez v. Caudill, decided Jan. 22), in cases where the grandparents are the parents of a deceased parent. The court held that the father (technically, the stepfather, but the court said that he was properly treated as the father) was a fit parent. And it held, citing an earlier South Carolina case that relied on Troxel v. Granville, "Before visitation may be awarded over a parents objection, one of two evidentiary hurdles must be met: the parent must be shown to be unfit by clear and convincing evidence, or there must be evidence of compelling circumstances to overcome the presumption that the parental decision is in the child's best interest."

But in then went on to say:

We hold that a biological parent's death and an attempt to maintain ties with that deceased parent's family may be compelling circumstances justifying ordering visitation over a fit parent's objection. We find visitation here is in the children's best interest to further the relationship between the children and the mother's family. We further find the visitation ordered by the family court would not excessively interfere in Stepfathers relationship with the children. Therefore, the family court did not err by awarding Grandmother visitation.

A pretty substantial limit on parental rights, it seems to me. Perhaps it's justifiable; while I on balance favor parental rights, both the libertarian and the constitutional case for strong judicial protection of parental rights is complicated and, in my view, far from open-and-shut. But right or wrong, it seems quite noteworthy.

Let's briefly recap the situation: A professor is found guilty of "racial harassment," apparently because he mentioned the term "wetback" in class. He says he wasn't trying to be offensive towards Mexicans or Mexican-Americans (illegal immigrant, legal immigrant, or otherwise), but was merely discussing and condemning some people's attitudes towards them. The student who apparently complained hasn't been quoted as squarely disagreeing with him, but perhaps she does.

The university refuses to publicly say what it thinks the professor said. Is it missing the use/mention distinction? Is it imitating Monty Python? Does it take the view that both using (in the sense of endorsing the message of) and mentioning (in the sense of quoting or describing) the word "wetback" is racial harassment? Does it conclude, as a factual matter, that the professor actually used the term, rather than just mentioning it? Even if he did use it, is he found guilty of racial harassment because he expressed an idea using epithets, or because the idea he expressed — and is Brandeis's view that the racially harassing and therefore prohibited idea is hostility to Mexican-Americans, hostility to Mexican immigrants, or hostility to Mexican illegal immigrants?

No-one knows. No-one knows what is and is not allowed for Brandeis professors who teach controversial subjects. No-one can sensibly evaluate the merits of Brandeis's professor speech code. That's what critics of Brandeis have been saying.

Now here's the response from Brandeis's Provost and Senior Vice President for Academic Affairs:

7:51 a.m. January 29, 2008

Dear Faculty Colleagues,

I am well aware that many of you are concerned about the investigatory process and outcome following a complaint by a student last semester against a member of our faculty. As a member of the faculty and as an administrator, I share with all of you the goal and expectation that our university policies reflect our core values of academic freedom, the right of our students to a learning environment that is free of harassment, and the right to privacy in personnel matters.

As you know, the University is legally required to have a non-discrimination and harassment policy. Our policy and investigatory procedures were substantially revised in 2006, following extensive discussions with the Faculty Senate. These procedures instructed the investigation conducted last semester and that case is now considered closed. Because of our obligation to ensure confidentiality, I have been unwilling to comment publicly about this case, despite the misrepresentations of the investigatory process and outcomes that are now widely circulated in the media.

Some of you have expressed confusion concerning what constitutes racially harassing speech and how the University conducts a legally required investigation. As a community, we can all agree that this confusion is not healthy and that we must work together to understand both our legal and academic responsibilities. I have been and will continue to work with the Faculty Senate Council regarding programs for the faculty that increase our internal capacity for understanding diversity issues.

I am saddened by the pain that our community has experienced recently and I want to open up channels for constructive dialogue. The spirit and specifics of our current policy reflects thoughtful discussions between the faculty and university administrators. I expect that such conversations will continue to inform this and other university policies in the future.

Sincerely,

Marty Wyngaarden Krauss
Provost and Senior Vice President for Academic Affairs

Ah, you'll surely say — now everything is fine! The confusion is unhealthy, and the community's pain is saddening, but the Senior Vice President for Academic Affairs will work with the faculty regarding programs that increase everyone's internal capacity for understanding diversity issues. Not only that, but she'll open up channels for constructive dialogue (though apparently not about this incident, since this case is now considered closed).

Look: This is an issue that goes to the heart of Brandeis's role as a center for learning and teaching, and its credibility as a center for learning and teaching. And the University's response is that the "case is now considered closed," and no further information is forthcoming (except perhaps through future "programs that increase our internal capacity for understanding diversity issues"). Nor is the confidentiality argument plausible — the question is what the university thinks the professor (who has spoken publicly on the matter) said in class in front of many students.

Is it really so much to ask the university to reveal this one simple factual finding? Or is the university worried about what this factual finding will say about it and the rules that it is actually applying?

"Your Tremendousness."

Any recommendations for restaurants in Gainesville, Florida? If it's the sort of thing that's delicious but that I'm unlikely to get often in L.A., that would be especially good, but just plain delicious will do, too. Thanks!

Five readers e-mailed me about the court decision saying that cease-and-desist letters are protected by copyright. Does this mean that sites that get such letters -- usually saying "your post violates my client's [libel / privacy / copyright / etc.] rights, so take it down immediately or else" -- are violating copyright law when they post the letters (usually in the context of criticizing the letters)?

Probably not, though it's not obvious. The magistrate judge's report, which was adopted by the district court, is here, and a careful read makes things clearer. But first, let's go over two basic copyright law principles (which I necessarily oversimplify):

1. Copyright law presumptively protects pretty much any written (or otherwise recorded) work, whether or not the work is commercially valuable, highly creative, or decorated with a copyright notice. That includes this post, nearly any letter, and nearly any e-mail, except those that are very short or that almost entirely consist of copies of someone else's work.

2. But this presumption can be rebutted if the person copying the work shows (among other things) that his use is a "fair use" of the work.

The court decision in this case simply reaffirmed item 1, and thus isn't terribly noteworthy. And it only had occasion to consider item 1 because it did not decide that posting a cease-and-desist letter is copyright infringement (which would have required considering the fair use defense). Rather, the court was only asked to decide whether the plantiff could use a subpoena (under 17 U.S.C. § 512(h)) to discover the identity of the poster. The court concluded that for this, the potential plaintiff only had to show that copyright law presumptively protected his work (which it does); the fair use inquiry would then take place when the merits of the case are litigated, at trial or on a pretrial motion.

One can argue that this was mistaken, that anonymous speakers should have more protection against litigation that seems likely to be groundless, and that a subpoena shouldn't issue if there's reason to think that an affirmative defense (such as fair use) should prevail; I take no position on this question. But the important thing is that the court held that the "copyright law protects a lawyer demand letter posted online by the recipient" (to quote the press release of the lawyer for the potential plaintiff) only in the sense that copyright law does presumptively cover such letters; as an interpretation of existing law, that's quite uncontroversial. The court did not hold that the letter was protected by copyright on the sense that a lawsuit over the posting of such a letter is likely to succeed.

What then about question 2, which wasn't decided in this case but might be litigated in the future? This is unfortunately a tough question, because "fair use" requires the application of a notoriously mushy balancing test. Here's a quick run-through of the four fair use factors:

1a. The purpose of the use -- criticism of the original, which cuts in favor of fair use; the more detailed the criticism, the better for the user.

1b. The purpose of the use -- if the site makes some money (e.g., through advertising), then this cuts in some measure against fair use. But it doesn't cut that much against the fair use when the use is critical, since criticism even in commercially distributed works (such as newspapers or books) is generally a favored use.

2a. The nature of the copied work -- primarily not creative (the way a work of fiction might be creative), which cuts in favor of fair use.

2b. The nature of the copied work -- unpublished by the author, which cuts against fair use.

3. The amount of the work taken -- the entire work, which may cut against fair use, but the court may conclude that the critical nature of the posting requires copying the entire work (so that the reader can evaluate the criticism based on all the facts), in which case this factor may be neutral.

4. The effect on the market for the work -- cuts in favor of fair use, since there is generally no market as such for cease-and-desist letters, and it's unlikely that there'd be a licensing market for the letters (since few people would license the use of the letter to a critic). Any harm to the copyright owner stems from the critical nature of the posting, and not from the poster's competing with the author in the nastygram market.

If it weren't for the unpublished nature of the letter, the Supreme Court's Campbell v. Acuff-Rose decision, on which I rely in my quick analysis above, would make this an almost open-and-shut fair use case. The unpublished nature of the work undermines that in some measure (see, e.g., Harper & Row v. Nation Enterprises); but I still think the copier's fair use case is quite strong.

By the way, I couldn't find the allegedly infringing post containing the cease-and-desist letter. If you can find it and send it to me, I'd love to see it, and post it if I think it merits criticism.

I'm delighted to welcome George Washington Prof. Michael Abramowicz, who will be guest-blogging about his new book Predictocracy: Market Mechanisms for Private and Public Decision Making, being released this week by the Yale University Press. (Michael and I were briefly colleagues, when he was a lawprof at George Mason, and I was visiting there for a semester.)

Michael's book argues that prediction markets should be widely employed in decision making, because -- when properly designed -- they tend to provide a good algorithm for aggregating different points of view into a single forecast. A decisionmaking institution would be better off using this algorithm than relying on individual decisionmakers to develop their own forecasts, whether explicitly or implicitly.

At its most ambitious, the book defends what Michael calls "normative markets," in which the forecast is of a normative assessment by a decision maker to be randomly selected from a group. Sometimes, he argues, it might be better to rely on a forecast of the decision of a single randomly selected member of a group, rather than on an actual decision of all or a subset of the group members.

Michael will start by addressing some common objections to prediction markets and by outlining their institutional advantages. He'll then offer some of his ideas both for innovative designs and applications of prediction markets. And, finally, he'll explain and defend the broader theory behind normative markets. I'm very much looking forward to seeing Michael's posts.