An interesting essay in The Atlantic on love and marriage from a woman's perspective.

Most of my closest friends have always been women -- when I got married, the attendants on my side were my brother and two groomsmaids. And many of my women friends have been (or are) unmarried considerably longer than they might have liked; this was for all the right reasons, but it still made them somewhat unhappy. So I've thought a lot about such matters, thought obviously without the intensity stemming from direct personal concern (men face a different set of problems related to marriage), and the essay seemed to me to capture a good deal of truth.

In any case, I'm not sure the essay is right, I'm sure that it doesn't tell the whole story, and I am pretty sure that nothing in it is particularly original. But it strikes me as refreshingly candid as to one set of circumstances that are worth a good deal of thinking (even though it necessarily slights other circumstances). And there is one item that I thought was very well put (though I stress again that, like all statements on this subject, it can't describe everyone's experience equally):

Marriage isn't a passion-fest; it's more like a partnership formed to run a very small, mundane, and often boring nonprofit business. And I mean this in a good way.

Read all about this (and Osama is even involved). But wait, it's also in Minnesota. And in New Jersey (Nat'l Group for Communications & Computers Ltd. v. Lucent Technologies Int'l, Inc., 331 F. Supp. 2d 290 (D.N.J. 2004)).

Oddly enough, the American courts treat this as a perfectly normal matter. In the first two cases I cited, the parties entered into a contract that provided for Sharia arbitration; the courts considered challenges to the arbitral process, and upheld the awards. The third case involved a contractual provision expressly stating that disputes about the contract would be resolved under Saudi Arabian law; the court then dutifully investigated what the Saudi rules (which are built on Sharia) would call for, and rendered judgment "based upon this Court's review of various academic texts, the testimony of the experts, the submissions of the parties, and the Court's understanding of the fundamental principles of Islamic law as they would be interpreted by a court in Saudi Arabia."

And of course the application of Sharia law was indeed a perfectly normal matter. American courts are governed by American law, but American law has long provided that parties to contracts can provide for alternative dispute resolution mechanisms (such as arbitration). American law has likewise long provided that some contractual disputes would be resolved with reference to foreign law, especially when the law is expressly provided for by the contract. It doesn't matter whether the arbitration or the foreign law is secular or religious -- secular and religious rules are treated basically equally, on the principle that the parties' contractual choices should be honored unless some extraordinary circumstance makes it unfair to do so.

One could argue that American courts shouldn't be able to apply religious rules because of concerns about excessive entanglement of the government and religion. But even if that's so in some situations, it wouldn't apply when a court is merely asked to confirm an arbitration award rather than to applying the religious rules in the first instance, and it also wouldn't apply when the religious rules are part of the law of a foreign country (such as Saudi Arabia).

Now maybe Sharia law is more likely to be unfair than other systems in certain circumstances; and doubtless some people feel strong social pressure to enter into contracts endorsed by their cultural group. But people feel various kinds of pressure to enter into various kinds of contracts. American law usually enforces the contracts despite talk of pressure and unfairness. There are exceptions, but they are indeed exceptions, and the rule is enforcing contracts. Yet the skies haven't fallen, nor do they seem likely to fall even if more contracts end up being arbitrated or otherwise evaluated under Sharia law.

Samizdata and other sources point to this article. The article begins with, "The adoption of some aspects of Islamic Sharia law in Britain 'seems unavoidable', the Archbishop of Canterbury has said." Samizdata and others harshly condemn the Archbishop's position.

I read the Archbishop's speech (which I found by googling some key phrases). It's a long speech, with a good deal of theoretical discussion that's hard for me to precisely pin down, and some references to articles and books that I haven't read and can't opine on. But the heart of that part of the Archbishop's proposal that's quoted in the newspaper article seems clear; the Archbishop proposes

a scheme in which individuals retain the liberty to choose the jurisdiction under which they will seek to resolve certain carefully specified matters, so that 'power-holders are forced to compete for the loyalty of their shared constituents.' This may include aspects of marital law, the regulation of financial transactions and authorised structures of mediation and conflict resolution — the main areas that have been in question where supplementary jurisdictions have been tried, with native American communities in Canada as well as with religious groups like Islamic minority communities in certain contexts.

As best I can tell, the Archbishop is arguing for an analog to something quite familiar: arbitration agreements, including prenuptial agreements. If you and I enter into a contract (such as one related to "financial transactions") in the U.S., we could agree to having our disputes resolved by an arbitrator (usually secular, but nothing stops us from choosing a religious arbitrator).

We could also agree to have our disputes resolved under whatever legal rules we choose -- the law of North Dakota, the law of Switzerland, some legal rules that we ourselves draw up, or Jewish or Islamic law. The courts would then enforce the arbitrator's decision, unless one of us can point to some compelling and exceptional grounds for setting it aside. Likewise, people can enter into prenuptial agreements that set forth the substantive and procedural rules to be followed should they divorce.

Now of course these agreements aren't always completely enforceable -- there are various procedural requirements related to disclosure of certain things for the agreement to be treated as valid, and substantive constraints on supposedly unfair provisions of the agreement. And of course the agreements can call only for standard civil remedies; we can't enter into an agreement that provides for a beheading or a whipping in case of breach. Likewise, the agreements might not be enforceable to the extent they were entered into by minors (a possible issue for prenuptial agreements entered when a spouse is under 18) or to the extent they purport to limit the rights of third parties (a possible issue for prenuptial agreements that purport to decide child custody and child support as well as division of property between the contracting spouses).

But the Archbishop's proposal likewise calls for a variety of constraints on such agreements; he's not entirely clear about the magnitude of such constraints, but I think he might well envision more constraints than American law generally imposes, and more than most libertarians like me would impose on what are after all voluntarily entered-into contracts. No-one is talking about executing apostates, only about providing for an alternate way to resolve normal civil disputes related to financial transactions, divorce, and the like.

Thus, the Archbishop's proposal seems eminently defensible under the rubric of freedom to contract -- a freedom that I as a libertarian (squish that I am) believe to be quite important. It is the freedom of people to make their own rules for their own transactions, rather than having a one-size-fits-all rule set imposed on them by the government.

Such freedom of contract often provides important efficiencies, but it also helps protect professional communities (which may not want their internal disputes resolved by lay jurors or judges who know nothing about the relevant technical questions or the customs of the trade), helps protect personal choices, and helps protect cultural and religious communities that may want to settle their disputes using their own rules. So long as the decision binds only the contracting parties -- which the Archbishop seems to expressly contemplate -- civil courts should uphold it.

Now of course many people (usually not libertarians) do object to arbitration agreements on the grounds that they're "coercive" or "unfair" in that they "force" people into giving up rights that people's shouldn't have to give up, whether procedural rights such as a jury trial or substantive rights such as a right to get half the other spouse's marital income. And indeed sometimes there are social or economic pressures that lead people into such contracts, or for that matter any contracts.

Yet it seems to me that the general presumption should still be freedom of contract, and contract that the civil courts will enforce. Generally speaking, people are better off with this freedom. True, no choice is ever completely free, but it's generally better have the power to choose (in light of all the pressures under which we labor) and be able to commit to others that this choice will be binding. If there are to be constraints on this freedom (e.g., that one can't make certain irrevocable and highly damaging contracts, such as selling oneself into slavery), they should be narrow. Again, I think that's very much the libertarian approach.

But even those who aren't libertarians should be pleased that the Archbishop actually contemplates a good deal of constraint on the freedom of contract. He doesn't go into very great detail on this (it's a lecture, not a bill), but the discussion about the "inheritance of widows" problem suggests that he would indeed impose important substantive constraints on what can be contracted away. I'm sure the Archbishop is no libertarian, and endorses a great deal of paternalistic legislation. But his willingness to endorse this sort of liberty of contract, with plenty of constraints, strikes me as a valuable acceptance of people's choice to reject one-size-fits-all government solutions in favor of those that they and their partners choose.

Now I can't speak about the degree to which the English legal system is currently open to arbitration and prenuptial agreements (I have a vague sense that it's less open to prenuptial agreements than American states generally are, but I'm not positive). And if it isn't open to them already, I certainly wouldn't endorse preferential recognition of contracts to abide by Sharia and not by other procedural or substantive contractually provided regimes. But I would endorse a general openness to enforcing such contracts, whether they are secular, Islamic, Jewish, or whatever else.

And at the very least the harsh condemnation of the Archbishop -- who seems to be endorsing a system much like that which is already available as a matter of course to those Americans who choose it -- strikes me as excessive given the relative modesty and good sense of his proposal. And I say this as someone who has criticized the Archbishop on other matters in the past.

Thanks to InstaPundit for the pointer.

I just read an article on whether people in their homes should be free to use lethal force against burglars even when they don't have specific reason to fear death, serious bodily injury, rape, or kidnapping from the burglar. One question that arises, of course, is whether they have enough general reason to fear injury from such crimes -- just on the theory that someone who will break into their home may also attack them further -- that they should be allowed to assume that the burglar may mean them harm, and use lethal force on that assumption. Here's the relevant discussion:

[B]urglary, from a statistical standpoint, does not appear to be a particularly violent crime. The vast majority of burglars appear to be unarmed, and the vast majority of burglaries involve actual or attempted theft of household property, rather than violent crimes.... Indeed, the incidence of violent attacks by intruders during burglary is quite small. Violent crimes (generally defined as rape, robbery, and assault) were committed during only about 3.8% of all burglaries committed during a ten-year period studied by the Department of Justices.

It should be noted, however, that when a household member was present, the incidence of violent crimes was considerably higher -- about 30.2%.

Dan Slater at the Wall Street Journal Law Blog points to this Virginia Beach Virginian-Pilot story:

Police, saying they were responding to citizen complaints, carted away two large promotional photographs from the Abercrombie & Fitch store in Lynnhaven Mall on Saturday and cited the manager on obscenity charges....

The citation was issued under City Code Section 22.31, [police spokesman Adam] Bernstein said, which makes it a crime to display "obscene materials in a business that is open to juveniles." ...

Bernstein confirmed that one depicts three shirtless young men from the back, walking through a field. The man in the lead appears to be about to pull up his jeans, which have slipped down enough to reveal his upper buttocks....

The other image is of a woman who is topless and whose "breast is displayed with her hand covering just the nipple portion," Bernstein said. "You could still pretty much see the rest of the breast."

The seizure was "prompted by several customer complaints, and the management of Abercrombie & Fitch was notified of those complaints," Bernstein said....

I'm pretty sure, though, that this prosecution is unconstitutional, not statutorily authorized, or both — as the Virginia Beach city attorney's office seemed to conclude when it said that it would recommend dropping the charges at the scheduled March 3 hearing. The relevant ordinance reads:

It shall be unlawful for any person to knowingly display for commercial purposes in a manner whereby juveniles may examine or peruse ... Any picture, photograph, drawing, sculpture, motion picture film or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles ...

Harmful to juveniles: That quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement or sadomasochistic abuse, when it:

(1) Predominantly appeals to the prurient, shameful or morbid interest of juveniles;
(2) Is patently offensive to prevailing standards in the adult community in the city as a whole with respect to what is suitable material for juveniles; and
(3) Is, when taken as a whole, lacking in serious literary, artistic, political or scientific value for juveniles.

Juvenile: Any person less than eighteen (18) years of age.

Nudity: A state of undress so as to expose the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered or uncovered male genitals in a discernibly turgid state.

Here's the problem: To be constitutionally unprotected obscenity (including the broader category of obscenity-as-to-minors, which may not be shown to minors even if it's protected as to adults), the material must do more than just depict nudity, even in a "prurient," "offensive," "value[less]" way — it must depict sex, excretion, or "lewd exhibition of genitals." "[A] portrayal of nudity is not, as a matter of law, a sufficient basis for a finding that a work is obscene," Price v. Commonwealth, 214 Va. 490 (1974), and in fact Miller v. California — the 1973 Supreme Court case that held that there is indeed an obscenity exception to the First Amendment — didn't give mere nudity as one of its examples of the "sexual conduct specifically defined by statutes" that could be restricted. (The Virginia Beach ordinance largely follows the Miller test but with the addition of "for juveniles" or "of juveniles" to each prong, which is what makes it an ordinance related to "obscene-as-to-minors" material; the one exception to this model is that it also adds "nudity" as one of the specifically defined forms of "sexual conduct.")

Likewise, the Court explicitly said in Jenkins v. Georgia, 418 U.S. 153, 161 (1974),

Our own viewing of the film satisfies us that ‘Carnal Knowledge’ could not be found under the Miller standards to depict sexual conduct in a patently offensive way. Nothing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the ‘patently offensive’ element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment. While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including ‘ultimate sexual acts' is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatever of the actors' genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards.

It's also hard to see — even assuming the ordinance could apply to nudity without sex, excretion, or lewd exhibition of genitals — how depiction of a partly unclothed breast, or the top of a butt crack, "[p]redominantly appeals to the prurient, shameful or morbid interest of juveniles" ("prurient" in these contexts is just a synonym for "shameful or morbid"). Likewise, the Virginia law is that the third prong is satisfied "if a work is found to have a serious literary, artistic, political or scientific value for a legitimate minority of normal, older adolescents, then it cannot be said to lack such value for the entire class of juveniles taken as a whole"; my sense is that the pictures, though advertising, have serious artistic value for older adolescents.

But more importantly, it seems to me that absent something beyond mere nudity (even nudity that is titillating even though it lacks lewd exhibition of genitals), a picture can't be constitutionally treated either as obscene or as obscene-as-to-minors.

UPDATE: Thanks to reader Tracy Johnson, we bring to you the following nude breast — special bonus: Sex + Violence! — though one with serious political value (since it's on the flag of the Commonwealth of Virginia):

From the excellent Language Log.

The AP reports:

John McCain effectively sealed the Republican presidential nomination on Thursday as chief rival Mitt Romney suspended his faltering presidential campaign.

"If I fight on in my campaign, all the way to the convention, I would forestall the launch of a national campaign and make it more likely that Senator Clinton or Obama would win. And in this time of war, I simply cannot let my campaign, be a part of aiding a surrender to terror," Romney will say at the Conservative Political Action Conference in Washington....

Thanks to InstaPundit for the pointer.

UPDATE: I should note that I think Romney's "aiding a surrender to terror" line is quite over-the-top; whatever Clinton's and Obama's possible faults may be, they surely aren't planning to "surrender to terror" or do anything close. (Even promptly withdrawing troops from Iraq, something I don't agree with, can't be fairly described as that.) I didn't focus on that sentence when I first posted it -- I just copied and pasted what struck me as an important news item -- or else I'd have noted this at the outset.

Edwin Battistella's Bad Language p. 98 (2005) explains the supposed superiority of "disabled" over "handicapped":

[O]ne can argue that disabled is the optimal choice on the basis of conciseness, accuracy, politeness, and connotation.... The term handicapped ... carries the connotation of being held back in some competitive enterprise (we talk of social handicaps, golf handicaps, and racing handicaps) and is unwelcome by some people with disabilities.

I've heard this argument from others as well.

But wait: The term disabled carries the connotation of not being able, which surely holds one back in various enterprises, competitive and otherwise. In fact, if you're looking at the connotations that stem from the word's visible etymology, "handicapped" seems more favorable — it suggests that someone's path is harder because of the burden under which he labors, but it does not suggest that he's not able. Horses or golfers who labor under heavy handicaps may sometimes win. Horses or golfers who are disabled (in the literal sense) don't win.

Now etymology, even visible etymology, will only carry you so far; there are other aspects to this issue, which I've touched on elsewhere (here and here). But if one does focus on visible etymology, it seems to me that "handicapped" should be the superior term.

In the lawyer self-promotion thread, I pointed out a troublesome implication of a New York appellate decision applying the Telephone Consumer Protection Act. The decision held that a lawyer's unsolicited faxes explaining some legal issues (and implicitly promoting the lawyer as an expert whom readers should hire) were commercial advertising, and thus less-protected "commercial speech" for First Amendment purposes. The same logic, though, would suggest that a lawyer's blog, legal magazine article, treatise, or newspaper column (which also implicitly promote the lawyer as an expert whom readers should hire) would be commercial advertising, too.

Some readers suggested a possible distinction: Unsolicited faxes come to the recipient, simply because he's plugged his fax machine into the phone line; the other communications only come to him once he's opened up some publication or visited some Web site. And I agree that this is a distinction that makes us annoyed by unsolicited faxes (especially since they cost the recipient money by using his paper), and may justify special statutes aimed at such faxes.

But the trouble is that this distinction can't affect the judgment of whether something is "commercial speech" for First Amendment purposes. The commercial speech cases generally define the category to include speech that proposes a commercial transaction between the speaker (or the speaker's business partners) and the listener (or the listener's business partners). That includes proposals in unsolicited speech (such as mailings or in-person approaches) or in voluntarily accessed publications (such as newspapers, magazines, or TV programs). Many of the Court's "commercial speech" cases in fact involved commercial ads in newspapers, on television, on product labels, and the like.

An "Accident? Hire me" ad is equally a proposal of a commercial transaction if it's in an unsolicited fax, in a free newspaper dropped on your doorstep (which may have a combination of editorial and advertising), in a free newspaper you pick up, or in a newspaper which you pay to subscribe to. Likewise, an "Introduction to lawyer malpractice law" page is equally a combination of information and an implicit suggestion to hire (or refer people to) the author if it's in an unsolicited fax, in a free newspaper dropped on your doorstep, in a free newspaper you pick up, or in a magazine which you pay to subscribe to.

It may well be that the law should bar all unsolicited faxes, whether they are commercial or not. And it may well be that First Amendment law should treat restrictions on unsolicited speech differently from restrictions on solicited speech.

But the statute here distinguishes commercial speech from noncommercial speech; and it condemns the particular fax here on the grounds that it is commercial advertising, which is to say commercial speech. That logic can't be neatly cabined to apply only to annoying unsolicited faxes, when commercial speech can exist in lots of other media as well.

(For evidence that the line TCPA draws for faxes tracks the First Amendment commercial/noncommercial speech line, see the uncontradicted assertions in the Stern v. Bluestone dissent and the reasoning in Rudgayzer & Gratt v. Enine, Inc., 779 N.Y.S.2d 882 (2004), on which Stern relies.)

In Stern v. Bluestone, a New York appellate court held that blast faxes from a plaintiffs'-side legal malpractice lawyer — sent to other lawyers — constituted commercial advertising.

Each "Attorney Malpractice Report" [fax] consists of a one-page essay on legal malpractice containing information regarding issues and trends in that area. The faxes include generic statements about the elements of professional malpractice; the most common causes of attorney malpractice litigation; and brief discussions of situations that have given rise to attorney malpractice cases. At the bottom of each fax is a box containing Bluestone's contact information, office address, telephone number, fax number and web site address. Another web site address appears at the top of the faxes....

The court plausibly reasoned that the faxes were commercial self-promotion on Bluestone's part (paragraph break added):

The faxes at issue certainly have the purpose and effect of influencing recipients to procure Bluestone's services, which are for the specialized field of legal malpractice claims. First, the faxes include the name of Bluestone's law firm and contact information. Second, while the faxes do not directly offer Bluestone's services as a legal malpractice attorney, they indirectly advertise the commercial availability and quality of such services. Not only do the faxes invite contact for further information but they also list two web sites that boast Bluestone's specialization in attorney malpractice suits.

Thus, it is clear that the faxes indirectly proposed a commercial transaction and had the effect of influencing recipients to procure Bluestone's services. Contrary to the dissent's viewpoint, Bluestone's motive is not a factor in the determination that these faxes are advertisements. It is not necessary to probe that deeply, since simply looking at the faxes in the context in which they were sent is sufficient to establish them to be advertisements. The faxed "commentaries" are not just information with an author's name attached, but include the name of the author's law firm and direct readers to his web sites which advertise his professional services.... Moreover, Bluestone's professional role as an attorney specializing in legal malpractice claims supports the conclusion that the faxes advertise his services.

The court doesn't discuss in detail the fact that Bluestone is faxing lawyers and not the consumers who would typically use his services, but I take it that the response to that would be that he's trying to get lawyers to refer clients to him (since many lawyers don't know much about this sort of litigation, and would rightly refer their clients to specialists). And because the speech is treated as commercial advertising, the court concludes, it's covered by the federal ban on unsolicited commercial advertising via fax — though note that the legal consequence of this is that the speech is treated as falling within the "commercial speech" exception for all purposes, not just for the blast fax law.

Now there surely is something to the court's analysis: When lawyers and other professionals write about things they specialize, they're often implicitly trying to promote their services. And that's true of magazine articles, blogs, and other things as well as blast faxes. Young lawyers, I'm told, are often urged to write for bar publications precisely for this reason.

Yet if the court is right, then this suggests that lawyer-written blogs (such as the invaluable How Appealing), lawyer-written articles, and even lawyer-written treatises might qualify as "commercial speech," since they too "have the purpose and effect of influencing recipients to procure [the author's] services." (I give How Appealing just as a prominent and highly respected example of a blog that is written by a lawyer, and that I very much hope helps bring the lawyer business, or else I imagine he wouldn't be able to devote as much time to it as he does.)

Such blogs, articles, and treatises often "include the name of [the author's] law firm and contact information." They "indirectly advertise the commercial availability and quality of such services." They often "list ... web sites that boast [the author's] specialization." They "are not just information with an author's name attached, but include the name of the author's law firm and direct readers to his web sites which advertise his professional services."

"Moreover, [the author's] professional role as an attorney specializing in [whatever the blog, article, or treatise topic may be] supports the conclusion that the [blog, article, or treatise] advertise[s] his services." And if the author's "identity, motives, purposes, and intentions are relevant to whether the [work] was merely 'information' or 'advertising,'" that may often likewise cut against the blogger or article author, since the author's identity is as a practicing lawyer, and his motive will often in part be to get business.

And if the material is treated as "commercial speech," then the consequence isn't simply that it can't be sent as an unsolicited fax (something we law bloggers certainly don't do). Rather, we might well become strictly liable for any false statements we might post, rather than being protected by the "actual malice" test and the like. We would be punishable for any statements that the Bar might find to be "misleading." We could be required to post a wide range of government-compelled statements, which usually can't be required for nonadvertising media, but can be for advertisements. And the government might even be able to impose broader content-based restrictions on our speech, so long as the restrictions pass muster under the weaker Central Hudson test rather than the very demanding strict scrutiny test.

How can law bloggers and article writers distinguish themselves from Bluestone? Likely not based on motive; even if motive is relevant (the court here says it isn't, though later it cites a case suggesting that it may be), law bloggers and writers often have a mixed motive — spread knowledge and improve the legal profession, but also get more client inquiries and referrals — and law faxers might, too. It may well be that Andrew Bluestone not only likes to fight lawyer malpractice in court, but sincerely wishes that lawyers know better how to avoid malpractice, or how to spot possible malpractice causes of action against their clients' ex-lawyers. (A cynic might think that malpractice lawyers would like to see more malpractice, but many of them might figure that there'll be plenty for their business in any case, and surely many serious, decent professionals sincerely want a world with less malpractice.)

Perhaps the difference might be that Bluestone's faxes are brief and not terribly informative. But I'm not sure that's right — in fact, Bluestone does have a blog, and the entries in his Attorney Malpractice Report category strike me as having a good deal of substance. I can't speak to whether they're particularly original, helpful, or even accurate; nor am I positive that his faxes tracked these blog posts. But my sense from the opinion is that the fax items were pretty similar to the blog posts; and I'd hate to see a legal test under which a court would have to compare the relative value of Bluestone's posts and the relative value of my posts or Howard's posts or any other legal blogger's posts.

So it seems to me that the Stern decision is pretty troubling, and potentially dangerous to all lawyers who write about law, as well as to other professionals who do similar things — potential expert witnesses who write articles aimed at lawyers, doctors who write articles in the hope of building their name with the public or with other doctors who can provide referrals, and more. I'm not at all sure it's wrong under existing law, especially given Bolger v. Youngs Drug Products Corp. (1983), in which the Supreme Court held 8-1 (with only Justice Stevens taking a contrary view) that pamphlets by a drug company that promoted the benefits of condoms fell within the "commercial speech" zone of lower protection — even when they didn't mention the company's product by name. (This case goes a bit beyond Bolger; but not far.) But the decision does, I think, help illustrate the potential breadth of the "commercial speech" category under existing law, and helps show how a considerable amount of speech restriction — including restriction of valuable speech such as law blogs or professional articles — could be allowed under a broad reading of the commercial speech doctrine.

Note: I've spoken here of "commercial speech" in the First Amendment sense, which roughly means "express or implicit commercial advertising." For more on this definition, see here; suffice it to say that "commercial speech" doesn't mean "speech sold as an article of commerce" (such as a book, a newspaper, or a slogan on a T-shirt) or "speech about commerce"; it just means express or implicit advertising proposing a commercial transaction between the speaker (or his business partners) and the listener (or his business partners).

A RedState post suggests "JC Watts for Vice President." Of course, the Julius Caesar part might worry some ....

in the Hindley "wetback" matter.

So reports Village Soup / the Knox County Times (thanks to InstaPundit for the pointer). Apparently "it seems some Camden-Rockport Middle School eighth-grade boys are ... making a game of seeing who can expel the loudest and grossest flatus"; the school responds by threatening detention for "intentional farting."

Reader James Paternoster asks whether the school can do this. I answer yes, and it should, both to avoid distraction and to teach students how to behave. And detention seems a sensible punishment -- enough to be something of a deterrent, but not something that would interfere with the students' education or be otherwise excessive (as expulsion or a long suspension would be).

True, I'd hate to try to prove beyond a reasonable doubt in a criminal case that a fart was intentional. But school discipline isn't a criminal case, there's no need to prove the intent beyond a reasonable doubt, and often the students' statements, giggles, and other behavior will give a perfectly adequate clue to the clueful teacher. Perhaps experience will show the school that for some reason this policy won't work, but it certainly seems to me to be worth trying.

OK, that's not the point, but that's what it looked like when the article first pointed out the interior.

A different thought, though possibly an idiosyncratic one: The bride's wedding dress strikes me as a delightful alternative to the usual wedding dress -- it presents the image of a confident, adult woman, not a young girl or a historical copy of the young girl. I understand such dresses are more common these days in second (and later) weddings; but I like them for all weddings, especially those of women who are past their early 20s. Lovely as ordinary wedding dresses may be (and any friend of mine who's getting married always looks lovely), I like nonspecialty dresses much better.

despite 90,000+ signatures on an online petition (though a quick skim of a few signatures suggests that not all of them endorse the petition's views).

Good for Wikipedia. An encyclopedia may certainly choose not to include such pictures, and still remain true to its mission. (I don't think it would be right for the encyclopedia to remove important historical details that some people are offended by, though the encyclopedia authors would surely have the First Amendment right to do this; but drawings representing the subject are not a necessary part of an accurate discussion of the issue.) But I think an encyclopedia may also properly refuse to succumb to such pressure, and I approve of the Wikipedia editors' refusal here.

A reader sent me an e-mail which seems to condemn this development as a sign of "dhimmitude":

Standard & Poor's said it will launch on Tuesday versions of its widely used global indexes such as the S&P 500 .SPX, in response to the burgeoning demand for financial products and services that comply with Islamic law, or shariah.

Shariah forbids Muslims from receiving interest payments and from investing in companies involved in the production or sale of pork, alcohol, tobacco, pornography, gambling and non-Islamically structured finance or life insurance....

In further developments, some people have actually launched restaurants that only serve shariah-compliant food! Not only that, but others have food that complies with Jewish law, and still others have food that complies with vegan ethical principles. How will the nation survive?

Seems to me that if customers want to buy certain products and not others -- because they're Muslim, Christian, Jewish, Buddhist, vegan, and so on -- it's generally quite good for businesses to cater to those customers' preferences. If that means investing in companies that don't sell certain foods or certain financial instruments, or investing in companies that pollute less, or investing in companies that supposedly treat their works better, that seems just fine to me. We don't become "dhimmis" (non-Muslims governed by Muslim law) by doing what smart businesspeople routinely do: adjusting their products to the tastes of their customers.

The Telegraph (U.K.) reports (thanks to my friend Manny Klausner for the pointer):

[Muslim w]omen training in several hospitals in England have raised objections to removing their arm coverings in theatre and to rolling up their sleeves when washing their hands, because it is regarded as immodest in Islam.

Universities and NHS trusts fear many more will refuse to co-operate with new Department of Health guidance, introduced this month, which stipulates that all doctors must be "bare below the elbow".

The measure is deemed necessary to stop the spread of infections such as MRSA and Clostridium difficile, which have killed hundreds.

Minutes of a clinical academics' meeting at Liverpool University revealed that female Muslim students at Alder Hey children's hospital had objected to rolling up their sleeves to wear gowns.

Similar concerns have been raised at Leicester University. Minutes from a medical school committee said that "a number of Muslim females had difficulty in complying with the procedures to roll up sleeves to the elbow for appropriate handwashing".

Sheffield University also reported a case of a Muslim medic who refused to "scrub" as this left her forearms exposed.

Documents from Birmingham University reveal that some students would prefer to quit the course rather than expose their arms, and warn that it could leave trusts open to legal action....

A few thoughts:

1. Certainly hospitals should insist on maintaining proper levels of hygiene, even if that violates some doctors' or students' religious views. Reasonable accommodations of religious beliefs are generally good, but an accommodation that puts patients' health at risk is not reasonable. And while I'm not an expert, my sense is that the hospitals' insistence on not leaving garments hanging below the elbow is sound.

2. At the same time, hospitals should be open to proposed accommodations that would satisfy the Muslim women doctors' and students' felt religious obligations but at the same time protect patients' health. For instance, if it is possible -- as the Islamic Medical Association's spokesman suggests -- to have "long, sterile, disposable gloves which go up to the elbows," that might well be a reasonable accommodation.

3. More broadly, my sense is that such reasonable accommodations are not only good for religious observers, but good for the rest of us, too. When Islamic women go into respected professions, that undermines conservative Islam's subordination of women, and brings Islamic culture closer to Western norms. "Women have bare arms" vs. "women have gloves on their arms" is a relatively small cultural difference. "Women become doctors" vs. "women don't become doctors" is a much bigger cultural difference.

It may well be that as conservative Muslim women become more professionally liberated, women's standards of dress will become more relaxed, too. The two have gone hand in hand in the West. But even if the standards of dress will remain, both Western society and Islamic women will be better off when more Islamic women become professionals. Reasonable, safe accommodations (if these are possible) that help pull more Islamic women into medicine are thus better than refusing all accommodations and thus pushing some Islamic women away.

It's been hard for me to choose, but I've decided to vote for John McCain in tomorrow's California primary.

I'd vote for either of the Republican candidates in November, and I have some reservations about both. Still, I think that McCain is likely to be very good on defense and on spending, and I think he's eminently electable (not the only criterion, but a very important one). I'm also moved by the views of many lawyers and scholars I know and respect as serious conservatives — such as Ted Olson, Miguel Estrada, John McGinnis, and Stephen Calabresi — whose support suggests that McCain will do a very good job on judicial appointments. I'm also glad to be in the good company of my cobloggers Orin and Dale.

This having been said, I disagree with McCain about restrictions on campaign-related speech, and I'm uncomfortable with his occasional streak of economic populism. But the fact is that no Republican candidate is likely to be a perfect match for my views; and I think that on balance he's the one I'd prefer as my party's candidate this November. So that's one reporter's opinion. We'll see what others think tomorrow, and during the rest of the campaign.