The Volokh Conspiracy

"George Washington ... so quickly tired of the infighting among his Cabinet and vagaries of public opinion that he stepped down from the presidency after a single term," says an L.A. Times article, in the course of discussing HBO's John Adams biography. And here I thought he had served from 1789 to 1797, which is to say two terms (though the first was a titch short, starting on April 30 rather than March 4).

A French bill (No. 791, April 9, 2008), would provide (translation by my brother Sasha):

"Art. 223-14-1. The fact of provoking a person to seek an excessive thinness by encouraging prolonged dietary restrictions having for effect to expose him to a danger of death or to directly compromise his health is punished by two years of imprisonment and 30,000 euros of fine. The penalties are increased to three years of imprisonment and 45,000 euros of fine when this seeking of excessive thinness has provoked the death of the person.

"Art. 223-14-2. Propaganda or publicity, whatever the method, in favor of products, objects, or methods recommended as means of achieving an excessive thinness having for effect to directly compromise health, is punished by two years of imprisonment and 30,000 euros of fine."

I just read the paper that Stuart just noted; I'm not econometrician enough to tell whether the analysis is sound, but I'd love to hear from those who are.

Note, though, that even if the statistical analysis is correct (which it might be), this still doesn't tell us why this effect is present (as the paper makes clear). One possible reason, which the paper points to, is the conventional wisdom that Yale students learn a lot of theory but not a lot of doctrine.

But there are other possible reasons. For instance, perhaps Yale has such an excellent reputation that Yalies who are relatively far down in the class get more clerkships than comparably ranked students at comparable quality schools. (I have indeed heard that this is the case, though I have no hard data on the subject except for this appellate clerk data.)

Say, for instance, that the Yale district court clerks generally come from the 25th to 75th percentile at Yale, and on average represent the 50th percentile. But say the Harvard district court clerks on average represent the 55th to 85th percentile at Harvard, and on average represent the 70th percentile. And say the Yale and Harvard student bodies are on average comparably good (or perhaps even that Yale is on average better, but only by a little), so that the people at the 50th percentile at Yale are a little less good at legal analysis than the people at the 70th percentile at Harvard.

The higher reversal rate associated with Yale clerks may then just reflect the lower average quality of Yale clerks, not the lower average quality of Yale graduates or of a Yale education. And this lower quality would flow from the school's reputation exceeding its actual merits (even if its merits are very great).

Likewise, the paper itself points to some other possible explanations, for instance "a grading system that is not sufficiently partitioned to allow judges to identify the quality of applicants": "Officially, there's a system of honors, pass, low pass and fail, but three-quarters or more of the class gets a pass, and professors rarely give out low passes ...." That too would be a way in which the average quality of Yale clerks might be lower than the average quality of other clerks (if it is), even though the average quality of the entire Yale class might be as good or better as that of other schools' classes.

Thanks to InstaPundit for the pointer.

The Tampa Tribune reports:

The state Senate this week opened discussions on ... replica bull testicles dangling from the back bumpers of vehicles. One senator wants the owners of such swaying baubles to be subject to a $60 fine.

Sen. Carey Baker, R-Eustis, sparked the discussion in the august senate chambers this week. Senators tried not to get too graphic, as a bunch of school children watched from the gallery....

Sen. Victor Crist, a Republican whose district covers part of Hillsborough and Pasco counties, was flabbergasted that the discussion took place at all.

"It was a waste of time," he said this morning. "We have better things to do than sit down and listen to a debate on whether or not someone should be allowed to hang an ornament on their trailer hitch or not.

"To me," he said, "It's a First Amendment right of personal expression as long as it's not rude, crude or lewd, and it has not been proven to be that." ...

The vehicle accessory has spawned a couple of very successful Internet mail order businesses. Your Nutz, a California company, boasts colors including sun-kissed sienna, dark forest green and even electric blue lighted sets that cast an eerie glow....

"Every time this happens," [David Ham, founder and owner of Your Nutz] said, talking of moves to ban the product, "it drives my sales through the roof. I can't thank this lawmaker enough. I'm considering contributing to these guys who are coming up with these bills." ...

"Florida is not the first state to do this," [BullsBalls owner John Saller] said. Virginia and New Jersey legislators have tried similar sanctions, and so far all attempts to reel in the replicas have failed, he said.

Oh, and let's praise the Internet for this: "All that is thanks to the Internet, [Ham] said. 'If it wasn't for the Internet,' he said, 'I wouldn't have started this business, and there would not be a testicle industry.'" Another way technology makes the world better.

Thanks to Brian Smith for the pointer.

So says a state prosecutor, dealing with an arrest for this non-crime. According to the Sarasota Herald-Tribune,

Randy Sievert did not commit a crime when he snapped a photo of an undercover Manatee County sheriff's vehicle from the road, a state prosecutor said this week in a case that has drawn national attention.

Deputies confronted Sievert in February and ordered him to erase any photos he took standing at the scene of a drug-related search warrant. Authorities called Sievert a "known" drug dealer whose photos jeopardized officer safety. Sievert, 20, was charged with interfering in a search warrant....

Sievert has been jailed without bail since his arrest; the obstruction charge violated his probation in two drug cases.

A person cannot be charged with obstruction or resisting arrest if the police detention is unlawful, an assistant state attorney, Tony Casoria, said in a memo released this week. Sievert did not physically interfere with the search warrant, the prosecutor said.

Casoria said Sievert "took a photograph in a public place, across the street from the home where law enforcement were conducting their search." ...

In declining to prosecute Sievert, the state pointed to a decision in a federal lawsuit in which a judge awarded a man damages for his arrest for videotaping police.... "The activities of the police, like those of other public officials, are subject to public scrutiny," [the judge in that case wrote]. "Robinson's right to free speech encompasses the right to receive information and ideas."

From Karen Marie Handy, a.k.a. Aaliyah Al-Aziz v. United States, 2005 WL 6115381 (Ct. Fed. Cl.), decided May 6, 2005 but — as best I can tell — just posted on Westlaw (paragraph breaks added):

Count I ("Copyright") [of the Complaint] states: "[A]ll materials and written works containing any biblical, historical and religious relevance" and "[a]ny mentioning of my name" are "the sole property and ownership of God .... [and] should have been copyrighted to God." Count II ("Patent") states: "Any patent taken on any goods, services, products with respect to any representation of God, her deity, character, symbol, and any historical person has been blatantly disregarded as to ownership by God only .... [and] should have and be reserved for my approval only."

Count III ("Taking Personal Property") arguably asserts a Fifth Amendment takings claim: "All property contained within the limits of the Earth, its space and such are the sole ownership of God." Counts IV and V ("Miscellaneous Damages") appear to allege further takings claims, violations of the free exercise clause of the First Amendment, and other constitutional violations.

The common denominator in the first three counts, as well as the takings component of Count IV, is that God's rights in various property interests have been injured in some way. Plaintiff lacks standing to bring such claims, however.... It is clear from plaintiff's complaint ... that she does not claim to have suffered an "injury in fact" for herself, but on behalf of a third party--God.

It should be noted that plaintiff attempted to cure this defect. In a document dated April 6, 2005, which the court treated as a response to defendant's motion, plaintiff states: "To make the following statement very clear to you, I am God, Allah, as stated before, I will not tolerate being referenced to as anyone other than that." This mere allegation, however, is insufficient to satisfy standing requirements. Further, weighing any evidence pertaining to the truth of this statement would involve a nonjusticiable matter....

The various other constitutional claims contained in Counts IV and V are also beyond this court's jurisdiction. See United States v. Mitchell, 463 U.S. 206, 218 (1983) (holding that this court's jurisdiction is limited to cases in which the Constitution or a federal statute mandates the payment of money)....

The post on prominent women bloggers made me wonder — is there some good and relatively broad aggregator of blog traffic statistics, besides Truth Laid Bear and Alexa? Truth Laid Bear is good, but it's missing many blogs, and also has some seeming junk data in it. Alexa, as best I can tell, works only with top-level domain names (and may suffer from various self-selection biases).

Can one do better than that, even as roughish estimates? Or is the problem simply that many leading blogs' counters are hidden, and the Truth Laid Bear list is as good as one is going to get?

Megan Carpenter's Glamour magazine blog asks "Why are all the big political bloggers men?," and in the process says this:

Ezra Klein agreed with Amy about the ghettoization of female voices, noting that while male political bloggers are known as "political" bloggers, women are more often known as "feminist" bloggers. "There's this rich and broad feminist blogosphere, which is heavily female and very political, but considered a different sort of animal. Is Jill Filipovic a political blogger? Ann Friedman?" he says. Male bloggers are seen as talking about politics with a universal point of view, but when we women bring our perspective to the field, it's seen as as a minority opinion.

Rachel Lucas responds in some detail, but I particularly liked this response to the passage quoted above:

I clicked on the hyperlinks of both those names to decide for myself if they were “political” and not “feminist” bloggers, and in so doing, I discovered the names of their actual blogs. And I shit you not, these two blogs, which it is apparently so very wrong to label “feminist,” are called:

Feministing.com

and

Feministe.us

Bam. Game over, pal. You lose.

It’s like trying to claim that John Hawkins is unfairly labeled a “right wing news blogger,” and then providing a link to his site, which is called RIGHT WING NEWS. Sure, he writes about things other than right wing news, and those female bloggers write about things other than feminism and even women in general, but not a lot.

Plus, as Rachel Lucas points out, how do you ask "Why are all the big political bloggers men?" and miss Michelle Malkin? And if you mention some of the somewhat lower-traffic but still prominent bloggers, why ignore Megan McArdle and Ann Althouse (an omniblogger, but with a good deal of political and policy content)?

Thanks to InstaPundit for the pointer.

Apropos my post on this from yesterday, my sister-in-law Hanah Volokh, who was the chief articles editor on the Georgetown Law Journal this past year, reports that during that year the journal accepted for publication William Baude, The Judgment Power, 96 Geo. L.J. (forthcoming August 2008), and Joseph Blocher, School Naming Rights and the First Amendment's Perfect Storm, 96 Geo. L.J. 1 (2008).

The House of Lords decision I discuss below rejected a free speech claim brought by an animal rights group, but in the process reasoned this way (paragraph break added):

In the present case also the proposed advertisement is wholly inoffensive, and one may be sympathetic to the appellant’s aims or some of them. But the issue must be tested with reference to objects with which one may not be sympathetic.

Hypothetical examples spring readily to mind: adverts by well-endowed multi-national companies seeking to thwart or delay action on climate change; adverts by wealthy groups seeking to ban abortion; or, if not among member states of the Council of Europe, adverts by so-called patriotic groups supporting the right of the citizen to bear arms. Parliament was entitled to regard the risk of such adverts as a real danger, none the less so because legislation has up to now prevented its occurrence.

Now I can sympathize with a judge who is just trying to point out that the free speech claim could be raised as to controversial speech as well as less controversial speech — or even trying to point out to liberal readers that the law would apply to conservative speech as well as liberal speech. But is it just me, or is there a pretty distinct tone of personal disapproval with regard to the examples?

The right to bear arms, in the example, wouldn't just be raised by someone; it would be raised by "so-called patriotic groups." "So-called" in this context sounds pretty pejorative, no? The multi-national companies wouldn't just be expressing their views; they'd be seeking to "thwart or delay action," again seemingly something of a pejorative characterization (though not as clearly so as "so-called," I think). And all this speech would be "a real danger."

Now naturally the judges are entitled to their own views about the merits of those who would support the right of the citizens to bear arms. But this just highlights my point, I think: The approach the court upholds, while ostensibly aimed at equality and "level[ing]" "the playing field of debate," simply entrenches elite opinion. Elite judges are worried about "so-called patriotic groups" and attempts to "thwart or delay action." I expect that opinion among the broadcasting elites includes the same or similar prejudices. Groups with outsider views can only get into the broadcaster programs with the broadcasting elite's permission; and when they try to pay money instead, the political and judicial elites keep them from doing that, all in the name of leveling.

And one more thing, why just in countries outside the Council of Europe? Wouldn't citizens of the Council of Europe — even "so-called patriotic groups" of such citizens — be entitled to argue for the right to bear arms, at least if the law allowed them to spending money for such "danger[ous]" activity?

UPDATE: Commenter Virginia reminded me of a passage that also struck me, but that I then forgot to stress in this post:

Nor is [a level playing field of debate] achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious.

1. One problem with the "equalization" argument for campaign finance restrictions — especially those applied to independent spending by individuals or organizations — is that their logic reaches considerably beyond campaigns. If fairness concerns justify barring expensive speech aimed at backing or defeating a candidate or ballot measure, why not speech aimed at supporting or opposing broader ideological views (whether abortion rights, gun rights, health care reform, or whatever else)?

After all, changes in public attitudes about issues may quickly affect candidates and ballot measures. More broadly, if broader "constitutional values," such as democratic self-government, justify restraining the spending of some to "level the playing field," one would think that these values would have the same effect in all aspects of democratic self-government — and First Amendment law has of course recognized that rights of "democratic self-government" extend to opinion formation generally and not just to election campaigns.

We see the same when we look at some of the rhetoric of those who would support broad campaign finance speech restrictions. For instance, Justice Stevens justifies his position in favor upholding such restrictions on the grounds that "money is property; it is not speech," and

Speech has the power to inspire volunteers to perform a multitude of tasks on a campaign trail, on a battleground, or even on a football field. Money, meanwhile, has the power to pay hired laborers to perform the same tasks. It does not follow, however, that the First Amendment provides the same measure of protection to the use of money to accomplish such goals as it provides to the use of ideas to achieve the same results.

Exactly the same argument would apply to political debate generally, and not just election campaigns. (Justice Stevens does try to limit his argument by suggesting that spending might be protected by broader property rights "unrelated to the First Amendment," and by suggesting that his argument wouldn't apply when "the prohibition entirely forecloses a channel of communication"; yet constitutional property rights, especially outside the right to compensation for physical takings, are notoriously weak compared to the First Amendment, and many restrictions could dramatically affect public debate without entirely foreclosing some medium.) Arguments focused on the risk of corrupting politicians through implicit quid pro quo would not apply quite as sharply, but Justice Stevens is obviously going beyond that.

Likewise, Justice Breyer's and Ginsburg's argument for "balanc[ing] interests" where "constitutionally protected interests lie on both sides of the legal equation" — which Justice Breyer applies to election campaign speech — would apply to pre-campaign speech about public issues as well. If "by limiting the size of the largest contributions, [campaign-related] restrictions aim to democratize the influence that money itself may bring to bear upon the electoral process," then by limiting expensive speech on broader public issues, these broader restrictions would aim to democratize the influence that money itself may bring to bear upon the opinion-forming process, and thus indirectly the electoral process. (More on this here.) And of course many of the past and present arguments in favor of the Fairness Doctrine have explicitly urged equality and fairness as justification in favor of coercive regulations related to public debate broadly (regulations that imposed expensive obligations on stations that carried controversial speech, in order to ensure supposedly fair treatment for rival speech).

2. The reason I mention all this now is I just read a remarkable implementation of this very sort of broad speech-restrictive approach, in last month's House of Lords Decision in R v. Secretary of State for Culture, Media and Sport. English law, it turns out, bans all paid "religious or political" advertising on television and radio — and the House of Lords upheld this ban, precisely on the sorts of equality grounds I described above. And this ban is not at all limited to political campaigns; the loser in the court decision was a pro-animal-rights group that wanted to run a "My Mate's a Primate" campaign aimed at "directing public attention towards the use of primates by humans and the threat presented by such use to the survival of primates." (I take it "mate" was used in the British/Commonwealth sense of "friend.")

What was the rationale? The same sort of equality argument that we see commonly made about election-related speech in America:

[I]t is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated.... It is not achieved if political parties can, in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction. Nor is it achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious. The risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect must, in my judgment, include a right to be protected against the potential mischief of partial political advertising.

Now of course the court assures us that there are still "other media ... open to the appellant: newspapers and magazines, direct mailshots, billboards, public meetings and marches." But the court also says (as a justification for the selective ban on radio and television advertising) that "there is a pressing social need for a blanket prohibition of political advertising on television and radio" because of "the greater immediacy and impact of television and radio advertising." So people are free to use other media, but precisely because those media are less effective.

Likewise, the court assures us that "It is the duty of broadcasters to achieve [the] object [of providing for expression of differing views] by presenting balanced programmes in which all lawful views may be ventilated." But that of course just means that public debate is within the power of the media elites that run broadcasters, and that run the government agencies that can pressure broadcasters. Outsider organizations are locked out, unable to broadcast their views the way they choose to express them.

Interestingly, the House of Lords here departs from a 2001 European Court of Human Rights decision that held that bans on political broadcast advertising were indeed unconstitutional.

3. Moreover, one of the judges specifically tied the argument to her rejection of the American free speech model, as exemplified in Buckley v. Valeo:

There was an elephant in the committee room, always there but never mentioned, when we heard this case. It was the dominance of advertising, not only in elections but also in the formation of political opinion, in the United States of America. Enormous sums are spent, and therefore have to be raised, at election times: it is estimated that the disputed 2000 elections for President and Congress cost as much as US$3 billion. Attempts to regulate campaign spending are struck down in the name of the First Amendment: “Congress shall make no law ... abridging the freedom of speech, or of the press": see particularly Buckley v [Valeo], 424 US 1 (1976). A fortiori there is no limit to the amount that pressure groups can spend on getting their message across in the most powerful and pervasive media available.

In the United Kingdom, and elsewhere in Europe, we do not want our government or its policies to be decided by the highest spenders. Our democracy is based upon more than one person one vote. It is based on the view that each person has equal value. “Within the sphere of democratic politics, we confront each other as moral equals” (Ackerman and Ayres, Voting with Dollars, 2003, p 12). We want everyone to be able to make up their own minds on the important issues of the day. For this we need the free exchange of information and ideas. We have to accept that some people have greater resources than others with which to put their views across. But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring.

So this case is not just about permissible restrictions on freedom of expression. It is about striking the right balance between the two most important components of a democracy: freedom of expression and voter equality....

So the English judge — and I expect her colleagues as well — saw the connection between the equality rationale for restricting expensive campaign-related speech and the equality rationale for restricting expensive speech more broadly. She flatly rejected Buckley's approach to campaign-related speech. ("There are aspects of the ban on broadcasting political advertisements which no-one disputes: in particular, advertising by candidates for election, or by political parties, whether or not at election times.") And she went from there to rejecting free speech protection for payments for issue-oriented speech more broadly.

So if you're skeptical that the progression I outlined in item 1 would indeed take place in America, keep in mind what has happened in England.

I'm delighted to say that Scott Keller, who just graduated from Texas last year and is clerking for Judge Kozinski this year, has had his new article -- How Courts Can Protect State Autonomy from Federal Administrative Encroachment -- accepted by the Southern California Law Review, through the normal competitive submission process. This reminds me of Randy Kozel, who had his excellent Reconceptualizing Public Employee Speech accepted by the Northwestern Law Review four years ago, when he was also a freshly minted law school graduate (and Kozinski clerk). I'm sure there are quite a few other examples, too, that I don't know about.

So, a congratulations to Scott, and a reminder that recent graduates can indeed get their scholarship published, even in top journals. I suppose the "Clerk to Judge Alex Kozinski" in the author's note can't hurt in the submission process, but I'm pretty sure that it won't itself make that much of a difference -- if you have an excellent piece, you can get it published in a prominent journal even if you don't have an appellate clerkship.