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Saturday, April 12, 2008
Some Wisdom on the Housing Situation:
Boston Globe:
Owning a home in Boston is about 70 percent more expensive than renting an essentially identical home. Therefore the government should stop trying to keep owners in homes and instead let more people return to renting. Those families could spend the extra money on other needs…says a new study from the National Low Income Housing Coalition.
The study joins a growing chorus making the point that home ownership is a misnomer in many cases. Many 'homeowners' are people with little equity, no equity or even negative equity who are basically making monthly rental payments to a mortgage company.
The group argues there is little long-term benefit to ownership because prices in cities including Boston likely will continue to decline…And even if they could, they’d be better off paying half as much and investing the difference in stocks.
Much of the "foreclosure crisis" involves homes purchased with no-money-down loans from which owners are walking away now that they have negative equity. [Not to mention long-time homeowners who cash-out refinanced regularly, ensuring that they never built any equity; I've read of individuals who have spent literally tens or even hundreds of thousands of dollars they received from refinances, and now want a bailout because they can't afford a few hundred dollars a month increase in their mortgage payment resulting from their last refinance into an ARM.] There is no more reason to consider such cases part of a social crisis than if the same individuals has leased apartments well beyond their means and have now been evicted.
On the other hand, some victims of the housing bubble are unlikely to get any government help. I know a woman who works as a cleaning lady, her husband as a maintenance man. They are immigrants who speak little English. They nevertheless managed to save 50K for a down payment on a townhouse, which they bought in the outer D.C. suburbs at the peak of the market in July 2005. That 50K in equity, and perhaps a bit more, has been wiped out as prices return to historically normal levels. Unlike those who put no money down, they can't just walk away, and unlike many others, they didn't buy beyond their means, so they aren't in foreclosure, but have seen their life savings evaporate. Sure, they didn't have to buy when they did, but they are certainly in a sense victims of the bubble, caused by the irresponsible lending and borrowing practices of others. If anyone is going to get bailed out by Congress, I would like it to be people like them [update: though, to be sure, I'd rather Congress stay out of it completely).
Now That's An Ambitious Campaign Plank:
The New York Times reports:
"We'll start by setting a bold goal," Clinton said at a YMCA community center in the tough neighborhood of West Philadelphia. "We'll start by focusing on cities with high homicide rates and we will cut those rates in half."
The Times paraphrases the plan this way: "The centerpiece of Clinton's proposal is a goal of halving homicide rates in cities. It includes adding 100,000 new police recruits, targeting gang violence and disrupting drug markets, and a federal initiative to tackle illegal gun trafficking."
Huh -- halving homicide rates over five years, even in "cities with high homicide rates," seems a pretty challenging task, and rather beyond what can be plausibly planned for, even as a "bold goal" (much as I would love to see such a goal reached). But perhaps I'm mistaken; I'd love to hear more from people who know about such things.
Obama in San Francisco on Pennsylvanians:
The original audio is here; here's the transcript, with the key passage emphasized: So, it depends on where you are, but I think it's fair to say that the places where we are going to have to do the most work are the places where people feel most cynical about government. The people are mis-appre ... I think they're misunderstanding why the demographics in our, in this contest have broken out as they are. Because everybody just ascribes it to 'white working-class don't wanna work -- don't wanna vote for the black guy.' That's ... there were intimations of that in an article in the Sunday New York Times today -- kind of implies that it's sort of a race thing.
Here's how it is: in a lot of these communities in big industrial states like Ohio and Pennsylvania, people have been beaten down so long, and they feel so betrayed by government, and when they hear a pitch that is premised on not being cynical about government, then a part of them just doesn't buy it. And when it's delivered by -- it's true that when it's delivered by a 46-year-old black man named Barack Obama (laugher), then that adds another layer of skepticism (laughter).
But -- so the questions you're most likely to get about me, 'Well, what is this guy going to do for me? What's the concrete thing?' What they wanna hear is -- so, we'll give you talking points about what we're proposing -- close tax loopholes, roll back, you know, the tax cuts for the top 1 percent. Obama's gonna give tax breaks to middle-class folks and we're gonna provide health care for every American. So we'll go down a series of talking points.
But the truth is, is that, our challenge is to get people persuaded that we can make progress when there's not evidence of that in their daily lives. You go into some of these small towns in Pennsylvania, and like a lot of small towns in the Midwest, the jobs have been gone now for 25 years and nothing's replaced them. And they fell through the Clinton administration, and the Bush administration, and each successive administration has said that somehow these communities are gonna regenerate and they have not. So it's not surprising then that they get bitter, they cling to guns or religion or antipathy to people who aren't like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations.
Um, now these are in some communities, you know. I think what you'll find is, is that people of every background -- there are gonna be a mix of people, you can go in the toughest neighborhoods, you know working-class lunch-pail folks, you'll find Obama enthusiasts. And you can go into places where you think I'd be very strong and people will just be skeptical. The important thing is that you show up and you're doing what you're doing.
A key political question at this point, I suppose, is whether the audio will be cleaned up well enough to be effectively played over the air again and again by Obama's critics in the run-up to the Pennsylvania primary, which is a week from Tuesday.
Here, by the way, is a transcript of his response to his critics (here's the href="http://www.youtube.com/watch?v=Sc9PepjyDow">YouTube version) (relevant passage emphasized): When I go around and I talk to people there is frustration and there is anger and there is bitterness. And what’s worse is when people are expressing their anger then politicians try to say what are you angry about? This just happened – I want to make a point here today.
I was in San Francisco talking to a group at a fundraiser and somebody asked how’re you going to get votes in Pennsylvania? What’s going on there? We hear that’s its hard for some working class people to get behind you’re campaign. I said, “Well look, they’re frustrated and for good reason. Because for the last 25 years they’ve seen jobs shipped overseas. They’ve seen their economies collapse. They have lost their jobs. They have lost their pensions. They have lost their healthcare.
And for 25, 30 years Democrats and Republicans have come before them and said we’re going to make your community better. We’re going to make it right and nothing ever happens. And of course they’re bitter. Of course they’re frustrated. You would be too. In fact many of you are. Because the same thing has happened here in Indiana. The same thing happened across the border in Decatur. The same thing has happened all across the country. Nobody is looking out for you. Nobody is thinking about you. And so people end up -- they don’t vote on economic issues because they don’t expect anybody’s going to help them. So people end up, you know, voting on issues like guns, and are they going to have the right to bear arms. They vote on issues like gay marriage. And they take refuge in their faith and their community and their families and things they can count on. But they don’t believe they can count on Washington. So I made this statement -- so, here’s what rich. Senator Clinton says ‘No, I don’t think that people are bitter in Pennsylvania. You know, I think Barack’s being condescending.’ John McCain says, ‘Oh, how could he say that? How could he say people are bitter? You know, he’s obviously out of touch with people.’
Out of touch? Out of touch? I mean, John McCain -— it took him three tries to finally figure out that the home foreclosure crisis was a problem and to come up with a plan for it, and he’s saying I’m out of touch? Senator Clinton voted for a credit card-sponsored bankruptcy bill that made it harder for people to get out of debt after taking money from the financial services companies, and she says I’m out of touch? No, I’m in touch. I know exactly what’s going on. I know what’s going on in Pennsylvania. I know what’s going on in Indiana. I know what’s going on in Illinois. People are fed-up. They’re angry and they’re frustrated and they’re bitter. And they want to see a change in Washington and that’s why I’m running for President of the United States of America.
Does this go far to explaining the original statement, both its part about "they cling to guns or religion ... as a way to explain their frustrations" and the part about "or antipathy to people who aren't like them or anti-immigrant sentiment or anti-trade sentiment"? My sense is that it doesn't, but I'd love to hear your views.
Thanks to InstaPundit for the pointers.
Friday, April 11, 2008
Associate Justice Reinhardt?:
Senator Barack Obama, on the qualities he would look for in a potential Supreme Court Justice if he is elected President: We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. Ninth Circuit Judge Stephen Reinhardt, on the qualities of a good judge: [I]n my view they include compassion, sensitivity, empathy for others, and a commitment to the pursuit of justice. Hmmm......
Reinhardt on Posner:
In the Michigan Law Review, Ninth Circuit Judge Stephen Reinhardt has a book review of Seventh Circuit Judge Richard Posner's recent book Not a Suicide Pact. It has lots of interesting tidbits and asides on what Reinhardt thinks of Posner more generally. For example, here is Reinhardt's take on Posner's widely-read book review in the New Republic of Aharon Barak's book on judging: My quarrel is unfortunately with Posner’s conclusions and, more particularly, his judgment. To use his words, I admire his skills as a “technician” but not as a “policy maker” (p. 19). Recently, for example, he wrote a review of a book by the world’s leading jurist, Aharon Barak, the former president of the Israeli Supreme Court who teaches with some regularity in his spare time at Yale Law School. Posner ends the review with the incredible statement, “No wonder he frightens Robert Bork.” Talk of bad taste, let alone bad judgment. It would be tough to match. Bork is a bitter figure still licking his wounds from his public rejection. Barak is a giant in the law, admired throughout the world. Shame on Posner! This passage at the end is also interesting: Th[e fact that judges act as policymakers] is why the battle over the appointment of members of the Court is so critical and why the Democrats—belatedly, and possibly too late—may finally be awakening to the importance of the Supreme Court confirmation process, something that the right wing well understood many years earlier.
I feel more confident in judges than in elected officials safeguarding our constitutional liberties. But I would feel even better were there some Warrens, Brennans, Marshalls, Douglases, Blackmuns, or even more Stevenses currently making the decisions that will determine the nature of our rights and freedoms—and indeed the nature of our society—for years to come. I would even feel more comfortable with a Richard Posner making such decisions than a George W. Bush—but not by much.
The "Progressive" Case for Water Markets:
As part of its symposium on "What's Next? The New Progressive Agenda," the webzine Democracy: A Journal of Ideas includes "tradable water rights" among the "progressive" ideas our nation's leaders should adopt. In a short essay, MIT environmental economist Michael Greenstone explains how tradable water rights could help overcome water allocation and scarcity problems, particularly in the West. According to Greenstone:
There are clear gains from having an active market in water rights. It would help solve the problems posed by current water shortages in the West, and it would provide the flexibility necessary to confront the impact of climate change on water supplies in the coming decades. It would be, in a word, fluid.
In his view, the federal government should take three steps to facilitate the development of water markets:
First, the restrictions that prevent the trading of water rights across state lines should be removed. The median price for a one-year lease of an acre-foot of water in Colorado is 10 times the median price in Utah. Additionally, as much as possible, other restrictions on trades and the requirement that all trades be reviewed by bureaucrats should be removed.
Second, property rights for water must be clarified. The practice of usufruct rights, in which the state holds all water "in the public trust," with the ability to retract or reassign rights, should be eliminated. The uncertainty caused by these policies prevents beneficial investments from being made.
Third, federal and/or state governments can reduce transaction costs in several ways. They could, for example, set up a monitoring system to determine withdrawals from the Colorado River and other important water sources. Moreover, the government could help fund a centralized market for trades if one doesn’t develop in the private market naturally. Finally, government involvement would likely be necessary to construct water transportation systems that aid trading or to clear the legal hurdles to developing these systems.
The case for water markets is particularly urgent when one considers the potential consequences of climate change, so it is promising to see water markets embraced as part of a "progressive" agenda. Related Posts (on one page): - The "Progressive" Case for Water Markets:
- Climate Change and Water:
Why Biofuels (like Ethanol) Are Bad for Birds:
The NYT reports what many of us have been predicting:
Thousands of farmers are taking their fields out of the government’s biggest conservation program, which pays them not to cultivate. They are spurning guaranteed annual payments for a chance to cash in on the boom in wheat, soybeans, corn and other crops. Last fall, they took back as many acres as are in Rhode Island and Delaware combined.
Environmental and hunting groups are warning that years of progress could soon be lost, particularly with the native prairie in the Upper Midwest. But a broad coalition of baking, poultry, snack food, ethanol and livestock groups say bigger harvests are a more important priority than habitats for waterfowl and other wildlife. They want the government to ease restrictions on the preserved land, which would encourage many more farmers to think beyond conservation. . . .
Last fall, when five million acres in Conservation Reserve came up for renewal, only half of them were re-entered. While the program has gained some high-priority land in the last few months, in part from an initiative to restore bobwhite quail habitats, the net loss is still more than two million acres.
That is just the beginning, warns Ducks Unlimited, a politically potent organization with more than half a million members in the United States. Ducks Unlimited is concerned about the three-quarters of a million acres of grassland that were removed from the program last year in the so-called duck factory in the Upper Midwest.
“We foresee a dramatic reduction,” said Mr. Ringelman, a conservation director for the association.
Incentive programs to encourage for voluntary conservation on private land have been a bargain, particularly when compared to various regulatory and non-regulatory alternatives. (A point I discuss in the latter sections of this paper.) It doesn't take much to convince many landowners to make small alterations in their land practices for the benefit of wildlife. Yet with the ethanol driven rise in commodity prices, many farmers now find that the opportunity costs of dong the green thing are too high. So they put more of their land under plow, and wildlife suffers as a result.
Debunking the Climate-Disease Connection:
There are many legitimate reasons to be concerned about climate change (such as its likely effects on water supplies. The potential of a warmer world to spread insect-borne diseases is not one of them, however. Given current technology, climate is a relatively insignificant factor in the distribution of malaria and other such ailments around the world. As Paul Reiter and Roger Bate explain, those who wish to combat malaria and other insect-borne diseases have better things to worry about than climate change.
It may come as a surprise that malaria was once common in most of Europe and North America. In parts of England, mortality from "the ague" was comparable to that in sub-Saharan Africa today. William Shakespeare was born at the start of the especially cold period that climatologists call the "Little Ice Age," yet he was aware enough of the ravages of the disease to mention it in eight of his plays.
Malaria disappeared from much of Western Europe during the second half of the 19th century. Changes in agriculture, living conditions and a drop in the price of quinine, a cure still used today, all helped eradicate it. However, in some regions it persisted until the insecticide DDT wiped it out. Temperate Holland was not certified malaria-free by the WHO until 1970.
The concept of malaria as a "tropical" infection is nonsense. It is a disease of the poor. Alarmists in the richest countries peddle the notion that the increase in malaria in poor countries is due to global warming and that this will eventually cause malaria to spread to areas that were "previously malaria free." That's a misrepresentation of the facts and disingenuous when packaged with opposition to the cheapest and best insecticide to combat malaria – DDT.
It is true that malaria has been increasing at an alarming rate in parts of Africa and elsewhere in the world. Scientists ascribe this increase to many factors, including population growth, deforestation, rice cultivation in previously uncultivated upland marshes, clustering of populations around these marshes, and large numbers of people who have fled their homes because of civil strife. The evolution of drug-resistant parasites and insecticide-resistant mosquitoes, and the cessation of mosquito-control operations are also factors.
Of course, temperature is a factor in the transmission of mosquito-borne diseases, and future incidence may be affected if the world's climate continues to warm. But throughout history the most critical factors in the spread or eradication of disease has been human behavior (shifting population centers, changing farming methods and the like) and living standards. Poverty has been and remains the world's greatest killer.
In other words, those concerned with disease control in the developing world should devote their energies to increasing wealth and distributing available medical technologies, rather than cooling the earth.
Thursday, April 10, 2008
JuicyCampus Lawyer Responds About the New Jersey Attorney General's Investigation:
For background, see here. Here's a response from a friend of mine, an experienced lawyer whose judgment I trust:
As it happens, I'm the lawyer who drafted Juicy Campus's terms and conditions, and who is representing Juicy Campus in connection with the New Jersey subpoena (along with local counsel in New Jersey). I was in trial the last week of March (on an unrelated matter) or I would have weighed in sooner.
Juicy Campus's Terms and Conditions simply do not say that Juicy Campus will delete offensive posts. To the contrary, the Terms and Conditions expressly provide: 6. No Pre-Screening or Regular Screening of Content.
You acknowledge that JuicyCampus does not pre-screen Content, but agree that JuicyCampus shall have the right (but not the obligation) to access, re-arrange, modify and remove or restrict access to any Content on the Site in its sole discretion and without notice or compensation. Without limiting the foregoing, JuicyCampus shall have the right to access and remove or restrict access to any Content that violates this Agreement or that JuicyCampus believes is otherwise objectionable, in its sole discretion.
The Attorney General's office is basing its investigation on the theory that because Juicy Campus requires its users to agree that they will not post anything defamatory, Juicy Campus is therefore obligated to delete posts that are alleged to be defamatory by third parties. In particular, the AG seems focused on paragraph 7 of the Terms and Conditions, which provides: 7. User Conduct.
You agree to not use the Site to:
(a) violate or solicit the violation of any applicable local, state, national or international law;
(b) infringe the rights of any third party, including but not limited to intellectual property rights and privacy or publicity rights;
(c) upload, post, email or otherwise transmit any Content that:
(1) is unlawful, threatening, abusive, tortious, defamatory, obscene, libelous, or invasive of another's privacy;
... If you use the Site to commit any of the above offenses, JuicyCampus may, at its sole discretion ... remove any Content you posted to the Site. No one could reasonably interpret such language to impose on Juicy Campus any obligation to delete posts.
Even were there some representation that Juicy Campus would delete posts from the Site (which there emphatically is not), the AG's investigation for violation of New Jersey's consumer fraud statute would be baseless. The New Jersey Consumer Fraud Act prohibits, inter alia, "any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation ... in connection with the sale or advertisement of any merchandise ..." (emphasis added). Juicy Campus does not charge users to post on site or read the site, and does not sell any merchandise on the site. Juicy Campus does, however, serve third-party advertising. It seems self-evident that one who clicks on a banner ad does not do so in reliance on any representation in the Terms and Conditions, but according to Assistant Attorney General James Savage, the fact that JuicyCampus.com sells advertising to third parties is enough to support a finding of fraud if users (even those who never clicked on any advertisement) were misled by its Terms and Conditions into thinking that it would delete offensive posts.
If this is the law in New Jersey, I'm moving there tomorrow to hang out my shingle. It seems to allow one who is neither a party to a contract nor an intended beneficiary of that contract to allege that one has been defrauded by the manner of the contracting parties' performance, without having sustained any damage as a result. I would start by suing all the lenders who have the right to foreclose on late-paying borrowers but are refraining from doing so, on the theory that their failure to enforce the borrowers' payment obligation defrauds me. I would then sue every bank in New Jersey that had ever waived an overdraft charge, since I believe their agreements with their customers allow them to collect such charges. The absurdity of the Attorney General's position is underscored by the sheer inanity of some of the interrogatories in the subpoena (my favorite: "What does the Company mean by the term 'beta' as it is currently used on the JuicyCampus.com website").
Paul Mulshine of NJ.com got it right: it's grandstanding. Richard Blumenthal, the Attorney General of Connecticut, has now chimed in with a letter asking for information similar to that sought by the New Jersey subpoena. I'll keep you posted as things develop.
If Learned Hand Had Spent Time in the Blogosphere:
If Learned Hand were alive today and spent a lot of time reading blog comment threads, I think his famous address " The Spirit of Liberty" probably would have gone something like this: What then is the spirit of liberty? Only a complete and utter moron would pretend they can't define it. The spirit of liberty is the spirit that recognizes I am obviously right. The spirit of liberty is the spirit that sees I know so much more than other men and women; the spirit of liberty is the spirit which recognizes that only people who agree with me are without bias; the spirit of liberty sees that a sparrow falls to earth because some idiot killed it. Duh. For the original, see here.
Obama Lies About His Church's Honor to Farrakhan:
Jake Tapper:
In Levittown, Penn., today, Sen. Barack Obama, D-Illinois, was asked about his church's magazine giving an award to Rev. Louis Farrakhan. "This was done by a magazine that was connected to the church," Obama explained. "I would have never done it. It was primary focused on the rehabilitation work that they do for ex-offenders in Chicago. That doesn't excuse it, that just explains it."
The first time Obama said this, I could believe he was misinformed [update: indeed, the first time he said this, he only said he "assumed" this was the reason]. The second time, perhaps that he was caught offguard and didn't have his story straight. Now, I can only conclude that he is intentionally choosing to blatantly lie about this, hoping that no one will notice and call him on it.
Let's recall the facts: The magazine explicitly explained in the video it prepared for the banquet at which Farrakhan was honored that it was honoring Farrakhan for his purported dedication "truth, education, and leadership." [Surprise, surprise, the video seems to have been pulled from YouTube.] Obama spiritual mentor Rev. Wright, meanwhile praised Farrakhan in the magazine for his "astounding and eyeopening" analysis of the "racial ills of this nation," a "perspective" that is "helpful and honest." I even got ahold of the interview the magazine did with Farrakhan. No mention was made in any of these sources of "rehabilitation work for ex-offenders."
UPDATE: It's odd that Obama's initial "assumption" has morphed into a statement of fact. He made up that assumption, which was not an entirely unreasonable one, and then either (at best) failed to check it out but decided to repeat this assumption as truth with no supporting evidence, or decided to just go with a lie when he found out the truth. Given the significance of the Wright controversy, I find it hard to believe that none of his aides has investigated the Farrakhan award, which would take approximately five minutes to research, so I'm still inclined to go with the latter explanation, though the former one hardly casts him in a great light, either.
Is Genocide Worse than Other Mass Murder Because it Targets People Based on "Immutable" Characteristics?
Some commenters on my earlier post arguing that international law should not consider genocide a more severe crime than other types of mass murder argue that genocide is worse because it targets victims based on immutable characteristics, such as race and ethnicity. This is a common argument. But I don't think it works.
First, the current international law definition of genocide is not in fact limited to immutable characteristics. It includes targeting of victims based on religion, which is most certainly not immutable.
Second, and far more important, many mass murders that are not genocide under current international law also target people based on immutable characteristics. For example, communist regimes routinely target people based on their economic class origins. Obviously, you can't do anything to change the fact that your parents were "bourgeois" or "kulaks."
Even in the case of targeting based on characteristics that can be changed, it is often too late to change them at the time the mass murder occurs. For example, my great-grandfather was arrested by the NKVD (as the KGB was then called) in the 1930s for having attended speeches by Leon Trotsky years before. At the time he went to the speeches, such attendance was not only legal but actually encouraged by the communist government, since Trotsky was a high-ranking Party leader. Years later (after Stalin had his rival Trotsky exiled and executed his most prominent supporters), such attendance became a crime punishable by a term in a Gulag (which often resulted in death). There was no way that my great-grandfather could have foreseen this at the time he decided to attend Trotsky's speeches. Fortunately, he was able to persuade the NKVD investigator that he really hadn't attended the speeches in question (although he actually had been present). A great many others were not so lucky.
Finally, even if the current definition of genocide really did capture a neat divide between mutable and immutable characteristics, I don't see why the mutable-immutable distinction should carry any moral weight. Killing a person because of his political affiliations wrong; so is killing a person because of his race or ethnicity. I don't see why the latter is somehow more wrong than the former merely because political affiliations can be changed and racial ones can't. The key question, it seems to me, is whether the killers are justified in demanding such a change as the price of allowing their victim to live. If not, their actions are just as reprehensible as murder based on characteristics that the victim can't change. If future technological developments allow people to rewrite their DNA and thereby change their race, would racially-based mass murder become less reprehensible than it is today? I think not.
"Freedom of Speech Is an American Concept, So I Don't Give It Any Value":
I'd heard of this quote from a Canadian Human Rights Commission investigator, but I wanted to see the hearing transcript for myself just to confirm that it's not being misquoted or quoted out of context. I just got the surrounding pages (available here; see PDF page 43 for the quote), and here it is:
MS KULASZKA: Mr. Steacy, you were talking before about context and how important it is when you do your investigation. What value do you give freedom of speech when you investigate one of these complaints?
MR. STEACY: Freedom of speech is an American concept, so I don't give it any value.
MS KULASZKA: Okay. That was a clear answer.
MR. STEACY: It's not my job to give value to an American concept.
Later on, Steacy does get a bit less clear:
MS KULASZKA: So if someone claims freedom of speech for what they said, it is rejected out of hand?
MR. STEACY: If somebody is claiming freedom of expression, it is not rejected. As I said, freedom of speech is an American concept, it is not a Canadian concept. If somebody said, "I am doing this because of freedom of speech," I would equate that to somebody raising a freedom of expression concept.
So freedom of speech is equated to freedom of expression, which is not rejected, but freedom of speech isn't valued because it's an American concept — hard to tell what he means. But however one reconciles the logic here, and whatever the extent to which free expression is indeed "not rejected," Mr. Steacy's rhetoric is still striking: "Freedom of speech is an American concept, so I don't give it any value."
Statistics on the Race of Persons Convicted of Federal Crimes in 2007:
In 2007, about 72,000 persons were convicted of federal crimes. Here's the breakdown of the defendants by race in the 95% or so of those cases in which the defendant's race was recorded: White -- 28.8%
Black -- 24.4%
Hispanic -- 43%
Other -- 4.1% (Source: 2007 Sourcebook of Federal Sentencing Statistics, page 14.) The same source includes a breakdown of defendants by race for different types of crimes that sheds light on these numbers. About a third of the defendants were convicted of drug cases, almost all for trafficking, and the racial breakdown of the defendants in drug trafficking cases roughly resembled that of the overall group: White -- 24.2%
Black -- 28.5%
Hispanic -- 43.8%
Other -- 3.5% In contrast, other types of crimes had a racial breakdown quite different than the whole. For example, the racial breakdown of defendants in fraud cases, about 10% of the group, was much whiter and much less hispanic than the rest: White -- 47%
Black -- 31.5%
Hispanic -- 16.5%
Other -- 5.0% Firearms cases, about 12% of the whole, were much more heavily black: White -- 32.5%
Black -- 48.3%
Hispanic -- 16.3%
Other -- 2.9% The fact that the largest group on the whole was hispanic largely resulted from immigration offenses, which constituted about 20% of the overall set. Defendants in immigration cases in 2007 were overwhelmingly hispanic: White -- 7.1%
Black -- 2.7%
Hispanic -- 89.1%
Other -- 1.2% What was the 'whitest' offense category with at least 1,000 prosecutions in 2007? That would be pornography/prostitution, the primary offense of about 1,400 defendants. Altogether, about 84% of the defendants convicted of those offenses are white.
Starbucks Now Accepts "Laissez Faire":
Since the publication of David Boaz's op-ed, several readers have tried ordering their own personalized Starbucks cards emblazoned with "laissez faire." Whatever Starbucks' policy was before, they now allow such cards, as at least one VC reader received his "Laissez Faire" Starbucks card in the mail today. I'll post the picture once I figure out how to do it.
UPDATE: If I'm doing this correctly, here's the picture of a "Laissez Faire" Starbucks card.
David Boaz also has more here. As he notes: "In this case the market worked, 'Laissez Faire' cards are fully acceptable, and my Starbucks-addicted colleagues can breathe easy again."
Related Posts (on one page): - Starbucks Now Accepts "Laissez Faire":
- No "Laissez Faire" at Starbucks:
The Fourth Amendment and "Domestic Military Operations":
There has been a lot of press attention recently on references in the John Yoo torture memo to another classified OLC memo apparently concluding that the Fourth Amendment does not apply to "domestic military operations." For background, see here and here . What to make of this depends mostly on what you think the phrase "domestic military operations" might mean, and more specifically, what "military operations" are. If "domestic military operations" refers to actual active battlefields in the United States -- think the Battle of Gettysburg, or the British attack on Washington in the War of 1812, etc. -- then I think that conclusion is very likely correct. Why? Here caselaw doesn't do much for us. As far as I know there is no caselaw on anything like this question. Probably as close as you can get is United States v. Verdugo-Urquidez, and that's still pretty far away. But I think the problem is that the principles of the Fourth Amendment and the principles of an active battlefield are almost 180 degrees apart from each other. Fourth Amendment rules are all about proportionality; by contrast, military strategy often requires overwhelming force. I don't know how a Fourth Amendment lawyer could be expected to weigh in on questions of military strategy to try to respect some sort of Fourth Amendment constitutional values. What would the lawyer say -- that the Army should break into enemy safehouses only during day time, for fear that breaking in at night could interrupt the enemy's "period of nighttime repose"? That they should "knock and announce" their presence before the Marines take a hill? It's hard to know how the two worlds are supposed to mix; they are just totally different. Or at least they are very different if "domestic military operations" is given a narrow meaning, such as an active battlefield. If the phrase has some sort of broader meaning, then you start to run into problems. Obviously, the mere fact that a war is on does not eliminate Fourth Amendment rights. Nor does the fact that the President is commanding the Executive Branch to act to protect the country mean that the Fourth Amendment doesn't apply. See, e.g., United States v. United States District Court. If the OLC memo took a contrary position, then it's pretty obviously wrong. As for whether the OLC memo takes (or took) such a broad reading, we just don't know. The Administration has long had a very broad view of how broadly "the battlefield" is in the GWOT, so it's possible. But we just don't know, and without that it's hard to know whether the OLC memo is objectionable.
Obama Favors Gun Control . . . Until the Pennsylvania Primary
John Lott has this very interesting op-ed, tracking Senator Obama's support for broad gun control measures ... support that seems to have evaporated with the Pennsylvania primary just a few weeks away. Lott quotes a personal exchange with Obama in which Obama said directly to Lott, "I don't believe that people should be able to own guns."
It will be interesting to see what exactly Obama says about his position on gun control during the campaign. Based on the evidence cited by Lott, it looks like he has taken a fairly consistent position in favor of banning handguns and perhaps some other guns as well.
Right To Choose Which Photographs You Create:
A commenter asks, "how many people would (dare to) take the photographer's side here if she refused to photograph a mixed-race couple?" I should hope that virtually all of those who support Elaine Huguenin's Free Speech Clause rights would support that hypothetical photographer's constitutional rights, too. I certainly would, just as I support the constitutional rights of many people whose views I condemn.
The premise of the argument I've made is that the government may not force you to create speech that you don't want to create, whether that's an article, a press release, a photograph, or a painting. You can be a racist, anti-same-sex-marriage, a devout Catholic who doesn't want to create works celebrating a marriage of divorced people, an orthodox Jew who doesn't want to create works celebrating a marriage of Jews and non-Jews, or whatever else. It doesn't matter.
The desire to prevent race discrimination should no more dissolve your right to be free from being compelled to speak (here, to create an artistic work) than it should dissolve the right to express bigoted views, to choose members of a racist political organization, or to select ministers (or church members) based on any criteria a church pleases. And if that means that writers and photographers can't be legally barred from choosing their subjects based on race, that's just an implication of the basic First Amendment principle of the speaker's right to choose what to say.
There should be nothing particularly daring about this position.
The Case for Keisler:
Over at Bench Memos, Ed Whelan asks why Peter Keisler's DC Circuit nomination is being blocked. Presumably the answer is that it's a political process, and that's how the politics are working out right now. But whatever the reason, I share Ed's dismay about the situation. I don't know Keisler well, but everyone I have spoken with on both sides of the aisle speaks extremely highly of him. Of all the pending Bush nominations, Keisler's is the one that I would most like to see go through. Related Posts (on one page): - No More Games:
- The Case for Keisler:
Wednesday, April 9, 2008
The ACLU and the Elane Photography Case:
Stop the ACLU writes,
Where was the ACLU on this one you may ask? Word has it that an ACLU-affiliated attorney represented the "offended" lesbians. "Foremost defender of the United States Constitution and the Bill of Rights" .... yeah right. More on that later.
From what I know of this case, I see no reason to fault the ACLU for it. Elane Photography's lawyer tells me that Julie Sakura of Albuquerque was the lawyer on the other side; she is not an ACLU staffer, nor, to my knowledge, has the ACLU taken a stand on this, or had Sakura characterize herself as an ACLU representative. Sakura has worked with the ACLU as a cooperating attorney, but my sense is that this just means she sometimes takes cases for them. It certainly doesn't mean that all her work is ACLU-sanctioned.
Nor do I see any reason to fault the ACLU for not representing Elane Photography here. Elane Photography has eminently capable counsel in the form of the Alliance Defense Fund; I don't know that Elane Photography even sought the ACLU's help. And while it might have been possible for the ACLU to file a friend-of-the-commission brief (though I'm not sure the commission's rules allow it), it's certainly sensible for an organization with limited resources to avoid spending effort on amicus work at such a stage, especially given that competent counsel are on the case.
I'll be happy to condemn the ACLU for being on the wrong side here if they actually end up on the wrong side. But so far I see no evidence of this -- please correct me if I'm mistaken.
Rosen's Unnatural "States of Nature":
New Republic legal affairs editor tries his hand commenting on environmental law in “States of Nature: How George Bush's legal war against the environment backfired,” and makes a complete hash of it. Rosen’s thesis is that conservatives have waged a “long-standing campaign against environmental protections” in which they “have taken a kitchen sink approach,” deploying various – at times even contradictory – legal arguments, irrespective of legal principle. Writes Rosen, “The only consistent objective was to thwart regulation, and the only question was which strategy would be most effective in achieving that goal.” An unintended consequence of this strategy, Rosen hypothesizes, is that “conservative anti-environmentalists may find that they have laid the legal groundwork for their ultimate defeat.”
From the outset, Rosen’s essay suffers from careless and inaccurate characterizations of conservative positions. Where Rosen correctly notes that many conservatives embraced federalism-based challenges to environmental regulations – what he calls a “states’-rights strategy – his primary example is out of place. During the Reagan and first Bush administrations, the states'-rights strategy initially prevailed. In a series of legal challenges, conservatives embraced a pre-New Deal vision of Congress's power to regulate the environment. They insisted that the Clean Air Act, which instructs the EPA to "protect the public health" by regulating ozone and particulate matter, was an unconstitutional delegation of regulatory authority. In a federal appellate opinion in 1999, Judge Douglas Ginsburg of the U.S. Court of Appeals in D.C. embraced this radical argument. (He was the same judge who had called for the resurrection of the "Constitution in Exile"--a reference to judicial limitations on federal authority that had been dormant since the 1930s and that would have called the EPA itself into question.) But, in 2001, in a unanimous opinion written by Justice Antonin Scalia, the Supreme Court disagreed. (In a separate concurrence, only Clarence Thomas indicated that he would be amenable to similarly radical arguments in the future.) Contrary to Rosen's suggestion the nondelegation doctrine is hardly a “states’ rights strategy” or a “states’-rights argument,” as it limits congressional delegations to administrative agencies, and does nothing to formally limit Congress’ ability to displace state authority. Further, it is misleading to say that the D.C. Circuit decision he references ( American Trucking Associations v. EPA) held the Clear Air Act itself to be unconstitutional. Rather, in a portion of the opinion written by Judge Stephen Williams (not Judge Douglas Ginsburg as Rosen claims -- presumably in order to insert a gratuitous reference to “Constitution in Exile”), the court held that the act, as interpreted by the EPA, would amount to an unconstitutional delegation, requiring the EPA to interpret the act so as to provide a meaningful “intelligible principle” that would limit the agency’s discretion. This is an important distinction because the D.C. Circuit decision would have allowed the EPA to cure the problem on remand – something a holding that the Act itself was unconstitutional would have precluded.
Rosen then makes clear that Justice Scalia should not be regarded as an environmental hero for authoring the decision overturning the D.C. Circuit, for “Scalia's rejection of the states'-rights argument didn't mean he was sympathetic to environmental regulations; it meant he was intellectually flexible about how to attack them.” The problem with Rosen’s characterization here was that the EPA rules upheld by Scalia’s opinion (in Whitman v. American Trucking Associations) were arguably the single most expensive environmental regulation ever proposed by the EPA. If Scalia was intent on implementing an “flexible” anti-regulatory strategy, he would hardly have sought to uphold such a massive administrative decision, nor would he have embraced an interpretation of the Clean Air Act that decisively rejects any reliance on cost-benefit analysis in the setting of federal air quality standards. Yet that is precisely what Scalia’s opinion did.
Rather than address the starkly pro-regulation implications of Scalia’s opinion, Rosen proceeds to suggest the decision is part of a “two-front war” against “meddlesome regulations at the state and federal levels.” By augmenting federal power as against the states, Rosen suggests, Scalia and other conservatives are limiting the ability of states to adopt environmental and other regulations. While this might be a reasonable critique of various arguments for expansive federal preemption of state law, it is bizarre to connect Scalia’s American Trucking opinion to such a cause.
Rosen turns next to the Bush Administration where, he writes, conservatives have “committed the EPA to an anti-regulatory agenda, and then attacked any states that tried to pass broader environmental protections than the now-complaisant federal agency.” Contrary to Rosen’s suggestion, the EPA has continued to adopt new regulatory controls on business over the past eight years, though far less aggressively than many environmental activists would like. This is hardly the agenda of an “anti-regulatory” or “complaisant” agency.
The one area where the EPA has been “anti-regulatory” and “complaisant” is in the context of climate change. As Rosen correctly observes, “the Bush administration tried to do as little as possible on global warming” and denied California’s request for a waiver of preemption under the Clean Air Act so it could adopt and enforce its own greenhouse gas controls on new motor vehicles. Rosen reports that “the EPA's own legal staff warned that the denial of the waiver was illegal.” Yet as I’ve discussed before, there is a strong argument that the EPA staff is wrong, as a matter of law (see here and here). Then Rosen commits a real howler, writing in the very next sentence that the Supreme Court, in Massachusetts v. EPA “agreed” with the EPA staff’s judgment. No. The Supreme Court did not “agree” with the EPA staff who said the denial of California’s waiver was illegal. Mass v. EPA rejected the Bush EPA’s conclusion that it lacked authority to regulate carbon dioxide is a pollutant under the Clean Air Act, but this has little bearing on whether California is entitled to a waiver. Indeed, the EPA did not deny California’s waiver request until well after the Mass v. EPA decision.
Continuing on the Court’s Mass v. EPA decision. Rosen writes: Justice John Paul Stevens's opinion for the Court, joined by Justice Anthony Kennedy and the three liberals, was full of rhetoric about the importance of states' rights and federalism, noting that states like Massachusetts played a crucial role in challenging the federal government's failure to follow the clear mandates of the law. Scalia's dissent, joined by Thomas, Samuel Alito, and John Roberts, struck a much more nationalistic note, arguing that the Court owed deference to the "reasoned judgment" of the EPA. (A year after the decision, the foot-dragging EPA has still failed to make the finding the Court required, leading congressional Democrats to threaten a subpoena. This is also a bit odd, as the language stressing the importance of states’ rights in Justice Stevens opinion is in the portion of his opinion about standing. The Scalia dissent, on the other hand, focused on an entirely different question in the case – whether the EPA had regulatory authority over carbon dioxide – not standing. The response to Justice Stevens’ invocation of the importance of states in environmental protection was written by Chief Justice Roberts. Rosen’s characterization here is even more confused, as one of Justice Stevens’ arguments was that greater solicitude of state standing was justified because states had given up their sovereign power to deal with interstate pollution problems to the federal government. According to Stevens, in return for this sacrifice of sovereign power, courts should be more permissive to state litigants who seek to prod the federal government to regulate in their stead.
Rosen then proceeds to suggest that many conservatives are simply embracing a pre-Goldwater, pro-business agenda – a fair point – and that this could backfire if (as seems likely) the next presidential administration is more sympathetic to environmental regulation. Yet his evidence that the legal arguments made by conservatives against environmental regulations will somehow facilitate regulatory expansion is decidedly lacking. Perhaps recognizing the weakness of his case here, Rosen quickly suggests that the conservative defeat will come at the hands of Congress, rather than the courts: even if anti-environmentalists convince the Supreme Court to overturn the policies of President Obama, Clinton, or McCain, Congress would likely reverse the decision with bipartisan majorities. Almost three in four Americans say they would pay more taxes for local governments to reduce the gases that cause global warming, according to a recent Roper/Yale environmental survey. Perhaps this is true, but it hardly substantiates Rosen’s opening claims, and there are ample reasons to doubt Congressional eagerness to adopt expansive environmental measures. Democratic control of Congress has hardly led to the advancement of meaningful environmental legislation.
In conclusion, Rosen writes: Because state legislators and Congress are in a pro-environmental mood, and because the Supreme Court is now committed to deferring to Congress, says Douglas Kendall of the Community Rights Council [sic], "the next administration has all the tools it needs to control the global-warming agenda, and to push Congress to implement a national solution." In their opportunistic moves to use the courts and the EPA to thwart politically popular environmental regulations, conservatives may have unwittingly checkmated themselves. This last bit is simply silly There is nothing in “states’-rights” legal arguments that would obstruct Congress’ ability to adopt meaningful climate change policies. Even the most aggressive federalism arguments against environmental regulations acknowledged that the regulation of air pollution is well within even a relatively limited view of federal power. Contrary to Rosen (and Kendall), there is little in the legal arguments that conservatives have actually advanced that will have such a boomerang effect, let alone “checkmate” conservative policies.
There are many reasons to criticize the Bush Administration’s haphazard and largely unprincipled approach to environmental policy. It’s also fair to observe how the Bush EPA and Congressional Republicans have missed opportunities to articulate and advance a principled conservative environmental agenda. The problem with Rosen’s essay, however, is that he misstates or misrepresents the relevant legal issues and arguments in the process of making his case. Only through gross oversimplifications and exaggerations does he make his ultimate thesis seem even plausible. This would be excusable from a newspaper editorial writer or generic political commentator, but from the legal affairs editor of the New Republic this level of legal analysis it is quite disappointing.
Religious Exemptions and the Elane Photography Case:
I'm wondering whether the religious exemption question might be getting lost in our discussion of the compelled speech issue. The compelled speech issue is a First Amendment question, and thus arises everywhere, and for all photographers, so that is more important. But the religious exemption issue remains significant, since about half the jurisdictions have a general religious exemption rule (by statute or by interpretation of the state constitutional provision).
Recall that the New Mexico Religious Freedom Restoration Act provides that:
A government agency shall not restrict a person's free exercise of religion [i.e., an act or a refusal to act that is substantially motivated by religious belief] unless ... the application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.
Assume, as seems to be the case, that Elaine Huguenin's refusal to photograph a same-sex commitment ceremony does seem to be substantially motivated by her religious belief. Is applying the antidiscrimination law to Huegenin really "essential to further a compelling governmental interest," especially given that there are doubtless many other Albuquerque photographers who would have no religious objections to photographing same-sex ceremonies? Will it even materially advance whatever compelling governmental interest is present, given that forcing photographers to photograph events that they find repugnant is not likely to produce the warm, affectionate photographs that couples want?
I discussed this more here, but I wanted to ask what you folks -- and especially those who defend the New Mexico Human Rights Commission decision -- think about this.
Baby M:
A staple of law school Contracts casebooks is the case of Baby M. I have long pointed out that the majority's opinion in the case rests on multiple unproven assertions and dubious empirical claims. The majority provides utterly no evidence for the claim, for example, that poor women will disproportionately be used as surrogates or that they are somehow "coerced" into being surrogates.
A great cover story in last week's issue of Newsweek looks at the "complex world of surrogate mothers." The reality of who becomes a surrogate mother doesn't resemble the asserted views of the judge at all. In fact, most surrogate mothers are middle class. Poor women not only are rarely chosen as surrogates, but are disfavored as surrogates. Military wives are frequent surrogates because they move around alot and it is difficult for them to otherwise gain employment and income. They also get free health care. Other women, according to the article, simply don't mind being pregnant because of the psychological value of being altruistic or even the hormones associated with being pregnant.
There are plenty of other problems with the logic of Baby M, but this complete lack of any empirical basis for the majority's assertions in the case as to how this market will evolve has always struck me as one of the more outrageous elements of the opinion.
Legal Requirements That You Write Things or Create Photographs:
Let me mention again the hypothetical I posed in my earlier post, and ask for the reaction of those who think the New Mexico Human Rights Commission's decision is constitutional. Maybe I'm mistaken, but my sense is that there weren't many responses to it, and I'd love to see more, again especially from people who think the Commission's decision doesn't violate the First Amendment.
Say you're a freelance writer, who holds himself out as a business offering to perform a service. Someone tries to hire you to write materials -- press releases, Web site materials, and the like -- for his same-sex marriage planning company, or his Scientology book distribution company, or whatever else.
May the government force you, on pain of damages liability, to write those materials, even if you would prefer not to because of the sexual orientation, religion, or whatever else to which the materials would be related? Or do you have a First Amendment right to choose which words you write and which you decline to write? If you do have such a right, why shouldn't Elaine Huguenin have the same right as a photographer?
One response I saw a few people make is that wedding photography isn't really artistic, the way that creative photography is. Well, I suppose that some will say that writing press releases or Web pages on commission isn't really literary or political, the way that writing fiction or opinion columns is; that's why I chose this particular example. Yet I take it that even being compelled to write bland, relatively generic copy about the virtues of some same-sex marriage planning company would be seen as a speech compulsion. Why wouldn't being compelled to take bland, relatively generic photographs likewise qualify (especially since taking and selecting good photos does involve at least some artistic decisionmaking)?
Another response was that there's no First Amendment issue with imposing nondiscrimination obligations on lemonade sellers, chefs, florists, and the like. But I take it we would see such an issue with imposing such obligations on writers, no? Why isn't a photographer far closer to a writer for First Amendment purposes, given that both photography and text are traditionally recognized as First-Amendment-protected media (because of their capacity to convey facts and ideas)?
One response pointed out that lawyers, who speak for a living, are required not to discriminate in choice of clients. But the First Amendment rights of lawyers practicing law are considerably constrained, see, e.g., Gentile v. State Bar of Nevada, and especially when it comes to choice of clients; for instance, courts generally still have the power to appoint lawyers to represent indigent criminal defendants, even if the lawyer objects on ideological grounds. Whatever the proper rule for lawyers should ultimately be, I don't think that the constitutionality of certain speech compulsions for lawyers -- officers of the court who have been therefore treated as something distantly kin to government employees -- tells us much about similar speech compulsions imposed on photographers, writers, painters, musicians, and others.
So tell me, please, if you think the Commission's decision is constitutional: Could the freelance writer be compelled to write copy for the same-sex marriage planning company, or the Scientology book distribution company? If the answer is "no," then what exactly is the difference between the writer and the photographer?
The International Law of Genocide and the Soviet Terror Famine of the 1930s:
Last October, I explained why international law is wrong to classify "genocide" as a different and more serious crime than mere mass murder. The recent brouhaha between the Russian and Ukrainian governments over Joseph Stalin's terror famine of the 1930s is a case in point. Not even the apologists for communism in former KGB Colonel Vladimir Putin's government deny that Stalin ordered the deliberate mass murder of millions of peasants in order to facilitate the collectivization of Soviet agriculture. In his classic study, The Harvest of Sorrow, historian Robert Conquest estimates that as many as 14 million rural people may have died because the Soviet government confiscated their land and food supplies.
However, the Ukrainians claim that this mass murder counts as genocide because Stalin specifically targeted Ukrainian peasant farmers for extermination. The Russian parliament, by contrast, claims that Stalin was an equal opportunity mass murderer, targeting Russians, Ukrainians, and others alike. International law considers mass murder to be genocide only if it is the result of an "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." Thus, if Stalin killed the Ukrainian peasants because they were peasants rather than because they were Ukrainians, it wasn't genocide, and therefore a less serious crime.
Frankly, I see no reason why this difference in Stalin's subjective intentions affects the severity of the crime in any way. The impact of the mass murder is exactly the same either way. And I don't see why Stalin and his henchmen somehow become less immoral if they killed millions of innocent people for "economic" reasons rather than for racial or ethnic ones.
Interestingly, as Jonah Goldberg points out in a column on this dispute, the international law definition of genocide may have been crafted to exclude mass murders targeting political or economic groups precisely because the Soviet bloc insisted on it. Although communist states sometimes do target groups based on ethnicity (as in the USSR's ethnic cleansing and partial extermination of the Crimean Tatars), most of their mass murders were based on economic and political grounds; and Stalin apparently wanted to make sure that they weren't covered by the international law of genocide. If so, this is another example of the pernicious influence of nondemocratic states on international human rights law, which John McGinnis and I discuss in this paper.
UPDATE: Various commenters argue that genocide is worse than other mass murders because it destroys cultural value as well as killing individuals. I addressed this point in my earlier post on genocide and mass murder. For readers' convenience, here's what I said:
Sometimes, it is argued that genocide is worse than other types of mass murder because it deprives the world of valuable cultural diversity, not just of the contributions of particular individuals. That may well be a real harm of genocide. But other types of mass murders also destroy diversity and other cultural resources. For example, Pol Pot's decimation of Cambodia's educated classes surely did severe damage to Cambodia's culture. Stalin's extermination of Russians active in political movements other than his own certainly undermined valuable diversity in that country, and so on. Whether genocide causes more cultural damage than other types of mass murder will vary from case to case.
UPDATE #2: For what it's worth, I think the evidence on Stalin's motives is somewhat unclear. There is little doubt that Stalin's main objective was to achieve the collectivization of agriculture by destroying the class of private landowning farmers - regardless of ethnicity. In addition to the Ukrainians, millions of Russian peasant farmers were also killed, along with members of other ethnic groups (including a good many Georgians - Stalin's own nationality group). On the other hand, Stalin, like other Russian and Soviet rulers, feared Ukrainian nationalism, since the Ukrainians were the Soviet empire's largest minority group. As Conquest and other historians suggest, he may well have been happy to cut down on the number of Ukrainians under his rule, thereby reducing the chance that they would ever be able to achieve independence. The terror famine enabled him to achieve both his ethnic and his economic objectives at the same time.
First Amendment and Photography/Writing/Publishing/Book Distribution for Money:
A commenter writes, about the photographer case,
This case isn't about art it's about commerce. If she ran a lemonade stand and refused to sell same sex couples or interracial couples, it would be clearly discriminatory.
The case is about art that is sold in commerce -- just as newspapers are sold in commerce, paintings are sold in commerce (whether to the person who commissioned them or to a museum), books are sold in commerce, and the like. And because photography is a medium of communication and of expression of ideas (unlike lemonade sales), the First Amendment is implicated (and, in my view, violated). Just as a bookstore may choose to sell only black-authored books, or refuse to sell Christian-themed books, so it seems to me that a photographer should
This also responds, I think, to comments such as "If she holds herself out as a business offering to perform a service, then it would seem that she cannot refuse that service to anyone falling into a protected class." Bookstores also offer to perform services, both to buyers and to publishers and authors; but they may choose what books to stock. Yet it doesn't follow that they may be denied their freedom to choose which speech to distribute.
Likewise, let me repeat the hypothetical I posed in my earlier post, which I think people didn't much respond to. Say you're a freelance writer, who holds himself out as a business offering to perform a service. Someone tries to hire you to write materials -- press releases, Web site materials, and the like -- for his same-sex marriage planning company, or his Scientology book distribution company, or whatever else.
May the government force you, on pain of damages liability, to write those materials, even if you would prefer not to because of the sexual orientation, religion, or whatever else to which the materials would be related? Or do you have a First Amendment right to choose which words you write and which you decline to write? If you do have such a right, why shouldn't Elaine Huguenin have the same right as a photographer?
Religious Accommodations and the Elane Photography Case:
In my earlier post about the photographer who refused to photograph a same-sex commitment ceremony -- and was punished by the government as a result -- I discussed the First Amendment objections to the New Mexico Human Rights Commission's decision. But the decision may also violate the photographer's religious freedom rights under the New Mexico Religious Freedom Restoration Act. The act, which is similar to the legal rules in place in about half the states and as to federal law, provides that
A government agency shall not restrict a person's free exercise of religion [i.e., an act or a refusal to act that is substantially motivated by religious belief] unless ... the application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.
Elaine Huguenin's refusal to photograph a same-sex commitment ceremony does seem to be substantially motivated by her religious belief. She is therefore entitled to an exemption unless applying the law to her passes "strict scrutiny" -- "is the least restrictive means of furthering [and is essential to furthering a] compelling governmental interest."
What government interests might justify denying Huguenin the exemption? If the interest is in making sure that people have roughly equal access to services, regardless of their sexual orientation, then I doubt that requiring Huguenin to photograph the ceremony is essential to serving that interest. There surely are lots of other photographers in Albquerque, and I have no reason to think that all or even most of them share Huguenin's religious objections; if Huguenin is given an exemption, same-sex couples will still have lots of photography services available to them. And given that a wedding photographer, to do a great job, likely needs to feel some empathy with the ceremony, forcing the Huguenins of the world into photographing a ceremony that they disapprove of will likely not give same-sex couples very good service.
But if the government's view is that people have a moral right not to be discriminated against -- entirely independently of any practical burden that such discrimination imposes on them -- based on their sexual orientation, then it would appear that every instance of sexual orientation discrimination would violate that right. And if the government has a compelling interest in vindicating that right, then granting an exemption even to a few religious objectors would jeopardize that interest, and denying the objection would be essential to maximally furthering the interest. On the other hand, can New Mexico assert such a compelling interest when it itself discriminates against same-sex couples in its marriage laws?
So the religious freedom issue would turn, I take it, on what version of the government interest New Mexico courts ultimately recognize -- the first version, focusing on practical access to services, which should lead to granting an exemption, or the second, focusing on a supposed moral right not to be discriminated against, which should lead to denying an exemption (if the government is seen as having a compelling interest in protecting that right). Incidentally, in a similar area, marital status discrimination in housing against unmarried couples, the several state courts applying state religious accommodation regimes have split, based precisely on this issue of which sort of interest is involved.
Photographers Denied the Freedom To Choose What They Photograph:
Elaine Huguenin co-owns Elane Photography with her husband. The bulk of Elane's work is done by Elaine, though she subcontracts some of the work some of the time. Elane refused to photograph Vanessa Willock's same-sex commitment ceremonies, and just today the New Mexico Human Rights Commission held that this violated state antidiscrimination law. Elane has been ordered to pay over $6600 in attorney's fees and costs.
I haven't seen any written statement of reasons, but the order must implicitly rest on two interpretations of state law: (1) This sort of photography company constitutes a "public accommodation," defined by state law "any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private." (2) A refusal to photograph a same-sex commitment ceremony constitutes sexual orientation discrimination, which New Mexico law forbids. These may or may not be sensible interpretations of the statutory text. But the result seems to me to likely violate the First Amendment (though there's no precedent precisely on point).
Photography is an art, and Huguenin is an artist. It may not be high art, but it embodies a wide range of artistic choices (especially since she says she takes a "photojournalist" approach, rather than just doing normal staged photos). And though she sells the art to its subjects, that is of course part of a long and continuing tradition in the arts, including painting and sculpture, as well as photography. Certainly many of the works protected by the First Amendment (books, newspapers, movies, and the like) were created for money and distributed for money.
Yet the New Mexico government is now telling Huguenin that she must create art works that she does not choose to create. There's no First Amendment case squarely on point, but this does seem pretty close to the cases in which the Court held that the government may not compel people to express views that they do not endorse (the flag salute case, West Va. Bd. of Ed. v. Barnette, and the license plate slogan case, Wooley v. Maynard).
For whatever it's worth, Huguenin also says she exercises political judgment in deciding what to photograph (for instance, she reports that she refuses to make photographs that put horror films in a positive light, or to take photographs that positively portray abortion, pornography, or nudity, as well as same-sex marriage). I don't think that sort of political selectivity should be required for photographers to be protected as artists, but it seems to me to highlight the scope of the artist's judgment, and the artist's constitutional right to exercise such judgment (just as a bookstore has the right to choose which books to stock).
Consider also a hypothetical analogy: Say that instead of Willock's trying to hire a photographer, Willock was trying to hire a solo freelance writer (or a writer in a two-person freelancing partnership) to write materials for Willock's (hypothetical) same-sex marriage planning company. The writer refused on the grounds that she didn't want to promote such a company.
I take it the law would cover the writer as much as it would cover the photographer (why wouldn't it?). Yet wouldn't requiring writers — even writers of press releases and Web sites — to write words that express views they reject violate the First Amendment? And if not, what's the difference between that and requiring photographers to take photographs that implicitly but strongly express views they reject? (Wedding photographs, of course, express views celebrating the event being photographed.)
More on the religious freedom issues and perhaps some other matters shortly.
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