Earlier this year, I noted that the Texas ban on dildoes — yes, it expressly mentions "dildo" — was struck down by the U.S. Court of Appeals for the Fifth Circuit (and just in time for Valentine's Day). The law, the court held, violates Lawrence v. Texas right of "adult consensual sexual intimacy in the home."

On this, the Fifth Circuit panel disagreed with the Eleventh Circuit, which upheld a similar Alabama law last year. I noted that there was a solid split, so there's a decent chance that the U.S. Supreme Court will step in to resolve this (though there's of course no guarantee).

Today, the Fifth Circuit denied rehearing en banc, over the dissent of seven judges; six of them sharply disagreed with the panel decision on the merits, and all seven noted the circuit split. My sense is that this increases still further the chances that the Supreme Court will decide the split is important and worth addressing. The Justices might still see this as a case that's too unimportant practically (as opposed to symbolically and jurisprudentially) and too undignified-sounding factually to hear. But I think that seven circuit judges' belief that this case is jurisprudentially important enough to merit a written dissent from denial of en banc rehearing will increase the chances that the Court will think it's important enough to justify a place on the docket.

So I'll go out on a limb and predict:

(1) The Supreme Court will agree to hear the case.

(2) The Supreme Court will reverse the panel decision and conclude the statute is constitutional.

(3) The vote will be at least 6-3, because even some of the liberals on the Court — I particularly have in mind Justice Breyer — and moderate conservative Justice Kennedy will think that the courts' power to recognize unenumerated rights should be saved for rights (e.g., abortion, contraception, sexual intimacy, parental rights, right to refuse medical treatment, right to live with close family members, and the like) that are more important in most of their exercisers' lives. And this is so even though the government's arguments for the practical benefits of the law seem comparatively weak, or as to the supposed immorality of the conduct, largely conclusory. I think the majority on the Court will conclude that such conclusory moral arguments are adequate except when something more important to most people's lives is at stake (since probably no Justice accepts the libertarian constitutionalist notion that a broadranging liberty to do what one pleases so long as it doesn't directly enough hurt others is itself so important that it should be recognized as a constitutional right).

None of this is to endorse either a narrow or broad view of unenumerated rights; I'm simply trying out my crystal ball here. Please note that it's been notoriously unreliable in the past.

Thanks to How Appealing for the pointer.

a psychiatric condition in which "patients ... claim they are subjects of their own reality TV shows." Thanks to the invaluable GeekPress for the pointer.

The Washington Post Checkpoint Jerusalem blog reports on an official Maariv statement that it did not get permission from Obama to publish his Western Wall note:

[A] Maariv editor called back to read an official statement:

"Maariv received the note last Thursday and, after realizing it contained no personal or intimate content, decided to publish it. Contrary to the response attributed to Maariv in a few media outlets in Israel, Maariv never requested permission from the Obama campaign to publish the note, nor was granted permission afterwards."

This means that Haaretz's contrary assertion, which also purported to quote an official Maariv response, appears to have been flat wrong (unless there's been a stupendous mixup at Maariv). Does anyone have more perspective on this, especially from the Israeli press? Sounds like Haaretz made a very serious mistake, unless Maariv did — a pretty major journalistic blunder by a top national newspaper.

from Prof. Jay Brown at The Race to the Bottom. The first post is here, but all five are still on the blog's main page.

Occasionally I see questions about whether the constitution should apply to civil lawsuits in which the government is not a party -- for instance, most libel lawsuits, child custody decisions, and the like. New York Times Co. v. Sullivan (1964), as well as other First Amendment cases, have famously said "yes," because even in civil lawsuits a government actor (the judge, jury, or both) is applying a government-created rule of law using government coercive power. And I think this is logically right: Imagine, for instance, that courts or the legislature adopted a rule that anyone offended by racist, sexist, antiveteran, or blasphemous speech could sue the speaker. Whatever one thinks the First Amendment result ought to be (and there is a hot debate, especially as to similar, though narrower, rules in workplace harassment law), surely there needs to be a substantive First Amendment analysis. The fact that the speaker must pay civil damages (compensatory and maybe even punitives) shouldn't distinguish the case from the government's imposing monetary fines for such speech.

(Contract disputes, such as those in Shelley v. Kraemer, are a different story; Shelley is rightly more controversial than New York Times Co. v. Sullivan, and has been less productive of further precedents. But the short answer, I think, is that a breach of contract or trespass to property lawsuit does involve government action, though in many situations may not involve unconstitutional government action, see, e.g., Cohen v. Cowles Media Co..)

But people still ask: Is this consistent with the original understanding of the First Amendment (or perhaps of the Fourteenth Amendment, when state litigation is involved)? This may be largely irrelevant as a practical matter, given how much precedent endorses the Sullivan view. Even many judges who generally approve of originalism are unlikely to disturb such solid bodies of precedent; Justice Scalia, for instance, has expressly said this in other contexts, and while Justice Thomas is more willing to reverse well-established precedents, even he is unlikely to go to the original meaning in all contexts, and when he is, he's often alone.

Here's my answer, based on reading a bunch of early free speech/press cases over the years: Free speech and free press objections to civil libel and slander lawsuits were often raised in the early decades of the Republic, and while they were often rejected on substantive grounds -- the courts took the view that defamatory speech was constitutionally unprotected, whether against civil liability or criminal punishment -- they were not rejected on "lack of government action" grounds. Sullivan's insight that even civil litigation still involves government power and is thus subject to government constraints seems to have been broadly accepted in the late 1700s and early 1800s. See, e.g., Root v. King, 7 Cow. 613 (N.Y. Supp. 1827); Mayrant v. Richardson, 10 S.C.L. 347 (S.C. Const. Ct. App. 1818); Reid v. Delorme, 4 S.C.L. 76 (S.C. Const. Ct. App. 1806); Harris v. Huntington, 2 Tyl. 129 (Vt. 1802); Middlesex Gaz., Mar. 12, 1791, at 1 (reprinting charge to a jury in Freeman v. Gardiner); Am. Mercury, Dec. 26, 1799, at 2 (charge to the jury in Rush v. Cobbett). And in Mayrant, Reid, and Harris (the latter two of which were cases involving the right to petition the government, rather than just the freedom of speech or press more generally), the plaintiff actually prevailed, based partly on constitutional principles.

So the Framers recognized that courts, including courts applying court-made common law rules, were agents of the government and generally subject to constitutional constraints. The early decisions were all state decisions applying state constitutions; but my readings suggest to me that -- despite the use of the word "Congress" in the First Amendment -- the scope of state freedom of speech/press/petition guarantees was seen as largely interchangeable with each other, and with the First Amendment. (Certainly early federal court cases, even ones applying judge-made speech restrictions and not statutorily enacted ones, treated the First Amendment as at least potentially applicable.) So my sense is that the original understanding of the First Amendment, and also the traditional one in the centuries since the Framing, is that it does apply to civil litigation, though the exact scope of the constitutional rules has of course changed over time.

The Yale Daily News reports:

Anonymous commenting may have just gotten a little less anonymous.

With the help of a subpoena issued six months ago, attorneys for two Yale Law School students have succeeded in unmasking several anonymous users of the Web forum AutoAdmit whom the women are suing for defamation.

Some of the defendants will finally be named when the students soon file an amended complaint, said their attorney, Stanford Law Professor Mark Lemley, who declined to comment further....

In 2005, sexually explicit and derogatory posts targeting three female Yale Law students appeared on AutoAdmit, an online community where law students can discuss law-school admissions and law-firm life. Two of the students, who remain unnamed in the suit, filed against the 39 authors of the allegedly defamatory posts.

Since a federal judge in New Haven granted subpoenas of Internet service providers last January, several of those comments have been successfully traced through their electronic footprints.

One of those authors was “AK-47,” who, in 2007, posted that women with one of the Yale Law students’ names “should be raped” and said they were “gay lovers.” ...

G v. K, N.Z. F.L.R. 385:

Quite frequently judges in the Family Court are dismayed by the eccentricity of names which some litigants have given their children. For example, one family of children have been named after six cylinder Ford motor cars. Other parents have named their twins after a brand of cigarettes, Bensen and Hedges. Another example (identified in published newspaper reports from the Waikato) relates to a child named Passionate Love. Within this region, children have been saddled with names such as Midnight Chardonnay, Number 16 Bus Shelter and, tragically, Violence.

Recently, for the first time in my experience as a Family Court Judge, the name of a child described in text language has emerged. In that case, the child was named O.crnia. Fortunately, the applicant mother was prepared to accede to a condition of a parenting order so that her child's name be changed to a more orthodox spelling, Oceania.

In this case, however, the youngest daughter of the family of these litigants has been described by the name "Talula does the Hula from Hawaii." ... However, notwithstanding the child is almost nine years of age, her birth has not been registered. I have not heard any explanation about that as yet.

Mrs MacLeod [a lawyer appointed by the court to represent the child] reports that the child, who also is known by the quite musical name of K, is so embarrassed about her given name that she has not revealed it to any of her friends. She fears being mocked and teased, and in that she has a greater level of insight than either of her parents. Mrs MacLeod, in her report, describes that the applicant mother had not given any thought at all to the implications of such a name for her daughter, when her daughter is at the stage of life of seeking to apply for a drivers licence or a passport. Neither has she given any thought to the implications for her daughter should she register for examinations, have her name published (whether for good or ill) or be stopped for routine inquiries by the police while driving. In all facets of life, a child bearing this name would be held up to ridicule and suspicion.

The Court is profoundly concerned about the very poor judgment which this child's parents have shown in choosing this name for her. It makes a fool of the child, and sets her up with a social disability and handicap, quite unnecessarily.

The parents have a wide discretion as to the name they choose to bestow on their child. Some parents seek to achieve a measure of individuality and uniqueness for their child, and that of itself cannot be criticised. However, these parents have failed in exercising the first and important task of parenthood -- that of naming their child. In exercising this important responsibility parents have a duty to consider what impact will occur on their child's life as a result of its given name. It is not a time to be frivolous, or to create a hurdle for their child's future life.

The Registrar-General has only a very limited discretion to refuse registration of a name presented for a child on registration of that child's birth ...[,]

(8) ... if and only if, -
(a) it might cause offence to a reasonable person; or
(b) it is unreasonably long; or
(c) without justification, it is, includes, or resembles, an official title or rank.

[But, the court concludes, its inherent power allows it to assume guardianship of a child when there is a "need to protect a vulnerable child," which there is in this case. -EV]

To ensure that a suitable name is chosen for the child, and her birth is properly registered, I make an interim order on the application made without notice placing this child under the guardianship of the Court. I appoint Mrs MacLeod the agent of the Court to assist and oversee those processes. I envisage that she will consult with the child's natural guardians and with the child herself, but that any name selected for registration will be subject to the Court's approval. I do not expect that Mrs MacLeod's appointment will be a long lasting one, as it is directed toward repairing the damage these parents have caused by their flippant approach toward their parental duties.

I missed this when the original opinion (Sklar v. Clough) came out in late April, but I think so did lots of others.

The Georgia Tech Safe Space training program materials (both printed handouts and Web materials) were apparently aimed at helping gays and lesbians feel comfortable and safe on campus, an eminently plausible goal. But they tried to accomplish this by taking stands on quintessentially theological questions -- e.g., the true meaning of the Bible, and the "legitima[cy]" of various interpretations of "Biblical texts" -- something the Establishment Clause has been read as prohibiting. Georgia Tech argued that the statements were student speech, not the university's, but the court concluded that the statements were indeed the speech of "Georgia Tech's own Office of Diversity Programs."

For a case reaching a similar result, see Citizens for a Responsible Curriculum v. Montgomery County Public Schools (summarized at the link; I'm afraid the link to the full opinion is broken). For a discussion of a similar problem at UCLA, which I think I helped get taken down, see here.

in last week's opinion in Sklar v. Clough. The broader litigation, which led to this opinion, involved a Free Speech Clause challenge to Georgia Tech's speech code, free speech zone, and activity fee funding system, and an Establishment Clause challenge to Georgia Tech's religious speech opposing religious criticism of homosexuality. Some of the matters were settled by mediation, and some were lost by the university on the merits (though the university administrators were found to have qualified immunity and thus didn't have to pay damages).

Georgia Tech then petitioned for reconsideration; the judge thought both (1) the factual assertions in the petition and (2) items in a Georgia Tech press release describing the earlier decision were part of a broad "lack of candor of Georgia Tech throughout the litigation of this case." Not the sort of thing a university, especially a university as litigant, should like to hear.

Last week, a federal district judge threw out Michael Savage's copyright and RICO claim based on CAIR's posting and criticizing a 4-minute snippet of Savage's radio program. The court correctly rejected the copyright claim on fair use grounds, finding that this was permissible criticism. And the court rejected the RICO claim on various grounds, including First Amendment grounds, since the injury Savage allegedly suffered was because of CAIR's speech.

I've certainly disagreed with CAIR in the past (see, e.g., here and here), including with its unduly narrow views on free speech. (Of course, I've also disagreed with Michael Savage.) But in this lawsuit, CAIR was in the right, and its victory is a victory (albeit a not unexpected one) for free speech more broadly.

A month ago, the New Mexico Court of Appeals rejected an attempt to change one's name to "Fuck Censorship!" (Thanks to commenter Tom Hynes for the pointer.) The court didn't cite the Darren QX Bean! case, but it did cite Misteri Nigger for the proposition that "one has a common law right to assume any name, and a right to engage in a social experiment, but one does not have a right to require the state to participate in the experiment, especially when the experiment involves epithets or vulgarities.

Fuck Censorship! has to remain, for legal purposes, Variable. Yes, that's it. What's more, In re Mokiligon, 106 P.3d 584 (N.M. App. 2004), expressly upheld the then-not-yet-Variable's right to change his name to Variable. The court did, however, feel the need to stress that "Petitioner is restricted to using the word ‘variable’ as his legal name. The court is not granting him the power to actually vary his legal name at will and he is limited to using ‘variable’ ...."

What was Variable's earlier name? I'm glad you asked:

Snaphappy Fishsuit Mokiligon.

From their press release, I learned that University of Minnesota Professor P.Z. Myers, author of the Pharyngula blog, has deliberately destroyed a consecrated host (and, Myers' post says, apparently a Koran as well), apparently as a protest against what he sees as the irrationality and magical thinking of religion (or at least of some religions).

Now I wouldn't have heard of this, and wouldn't be telling you about this, were it not for finding the Confraternity's press release:

The Confraternity of Catholic Clergy (a national association of 600 priests & deacons) respond to the sacrilegious and blasphemous desecration of the Holy Eucharist by asking for public reparation. We ask all Catholics of Minnesota and of the entire nation to join in a day of prayer and fasting that such offenses never happen again.

We find the actions of University of Minnesota (Morris) Professor Paul Myers reprehensible, inexcusable, and unconstitutional. His flagrant display of irreverence by profaning a consecrated Host from a Catholic church goes beyond the limit of academic freedom and free speech.

The same Bill of Rights which protect freedom of speech also protect freedom of religion. The Founding Fathers did not envision a freedom FROM religion, rather a freedom OF religion. In other words, our nation's constitution protects the rights of ALL religions, not one and not just a few. Attacking the most sacred elements of a religion is not free speech anymore than would be perjury in a court or libel in a newspaper.

Lies and hate speech which incite contempt or violence are not protected under the law. Hence, inscribing Swastikas on Jewish synagogues or publicly burning copies of the Christian Bible or the Muslim Koran, especially by a faculty member of a public university, are just as heinous and just as unconstitutional. Individual freedoms are limited by the boundaries created by the inalienable rights of others. The freedom of religion means that no one has the right to attack, malign or grossly offend a faith tradition they personally do not have membership or ascribe allegiance.

The Chancellor of the University refused to reprimand or censure the teacher, who ironically is a Biology Professor. One fails to see the relevance of the desecration of a Catholic sacrament to the science of Biology. Were Myers a Professor of Theology, there would have been at least a presumption of competency to express religious opinions in a classroom. Yet, for a scientist to ridicule and show utter contempt for the most sacred and precious article of a major world religion, is inappropriate, unprofessional, unconstitutional and disingenuous.

A biologist has no business 'dissing' any religion, rather, they should be busy teaching the scientific discipline they were hired to teach. Tolerating such behavior by university officials is equally repugnant as it lends credibility to the act of religious hatred. We also pray that Professor Myers contritely repent and apologize.

This is of course quite wrong in its statement of the law, and in its application to the law. I take it they use "unconstitutional" to mean "constitutionally unprotected," rather than its more normal meaning of "violative of the constitution"; only government actions can be unconstitutional (with very few exceptions that can be relevant here). But "hate speech which incite[s] contempt" is fully constitutionally protected.

In narrow circumstances, speech that incites violence is unprotected, but these circumstances (intent and likelihood that the speech will cause imminent violence against its target) are not applicable here. Lies about factual matters are often unprotected, when they're about particular people. But it's hard to see any "lies" in Prof. Myers' action, unless one stretches the term to mean "expressive behavior that I think are contrary to the Truth as revealed by God," but there's nothing constitutionally unprotected about that broad category.

The analogies are also logically weak, and undefended: Inscribing a swastika on a Jewish synagogue is a trespass to someone else's property. Burning one's own copy of the Bible, the Koran, or a consecrated host is not. Perjury and libel are punishable as false statements of fact; blasphemy is offensive expression of opinion.

And the assertion that "A biologist has no business 'dissing' any religion" takes a mighty narrow of view of "business." A biologist is also a citizen, who is entitled to participate in theological debate just as are nonbiologists. I take it that the clergy believe that commenting on moral, social, and religious questions is part of their "business"; I would think that the rest of us have the same rights on this score that they do.

But beyond that, while one could operate on the view that science and religion inhabit different realms and thus aren't contradictory, one could also take the view that certain views of some religions (whether about supernatural forces generally or the Virgin Birth, the Resurrection, transsubstantiation when taken seriously, and the like) are unscientific and undermine the progress of science -- just as one could take the view that certain views of some scientists (for instance, the insistence on material explanations for phenomena, or the endorsement of the theory of evolution, or the rejection of the Virgin Birth, the Resurrection, and the like) are antireligious. There's an important debate out there about religion and science, and neither the criminal law nor government universities ought to suppress it.

But more broadly, this further illustrates that "blasphemy must be punished by the government" thinking is alive and well in America. I hope that the Confraternity is a fringe group, but I'm afraid that their beliefs on this are hardly a fringe belief. If a Confraternity of Muslim Imams argued that the Mohammed cartoons, or stepping on the name of Allah, should be governmentally punished -- either by firings from a university professorship, or by criminal punishment -- many of us would condemn their views. I think we should likewise condemn the views of the Confraternity.

The Daily Mail (UK) reports:

A leading art gallery is being taken to court over claims that it outraged public decency by displaying a statue depicting Christ with an erection....

Other pieces in the show by the controversial Chinese-born artist Terence Koh included models of Mickey Mouse and ET, also with erections. [The gallery, which opened in 2003 after a £35million grant from the Arts Council, included] signs warning of the exhibition’s explicit nature ....

A private prosecution has now been launched .... Legal documents claim that the gallery has both offended public decency and breached Section 5 of the Public Order Act 1986.

The maximum penalty for outraging public decency is six months’ imprisonment and a £5,000 fine.

The documents claim that the foot-high sculpture was ‘offensive and disgusting’ and ‘likely to cause harassment, alarm or distress to Christians and those of other faiths’.

Legal experts said yesterday that the hearing would be the first test of public decency legislation since the Government scrapped Britain’s ancient blasphemy laws in May....

The prosecution has been launched by Emily Mapfuwa, 40, an NHS administrator from Brentwood, Essex, who read about the exhibition in newspapers. ‘I don’t think this gallery would insult Muslims in this way, so why Christians?’ she said....

I think this is pretty vulgar stuff, but should clearly be protected against legal punishment. It would be in the U.S., and it ought to be in other democracies; religions and religious figures are proper subjects for debate and commentary, both rational verbal debate and commentary, and the subtle commentary that can be offered by art.

And I think the Supreme Court was right in Cohen v. California to rejct the argument that some commentary can be barred with no free speech problems on the grounds that it's vulgar, or offensive because of its form rather than its content: There are no legally administrable lines -- at least of the sort that are likely to survive pressure for expansion -- that would distinguish impermissibly vulgar criticism from permissible criticism. I hope England courts reject the complaint. (Whatever one might say about the propriety of huge discretionary grants going to galleries that include offensive speech, the issue here is criminal punishment, not withdrawal of funds.)

It also seems to me that this helps illustrate the force of censorship envy. When speech hostile or insulting towards one religion or symbol is suppressed by government action (as has been urged by many in Europe and Canada with regard to the Mohammed cartoons), or by self-censorship in the face of threatened violence, what happens when other groups are similarly offended? Their sense of outrage -- and of entitlement to similar suppressive power -- is increased, because they are now outraged by the perceived unequal treatment as well as by the original offense.

Then, either the other speech will be suppressed, too, in which the scope of speech restrictions (again, either legal restrictions or restrictions prompted by fear of violence) increases. Or the other speech won't be suppressed, in which case the offended groups will become even more offended -- and then an attempt to prevent offense and maintain social harmony (which is how the original restriction is often justified) will have exacerbated offense and reduce social harmony. That's true, as I argued, about flagburning bans; and it's true about bans and other coercive restrictions on insulting representation of religious symbols.

Uh-oh -- I just noticed that it seems like we've gotten a bunch of tips over the last few years in the Amazon tip jar (which I'd largely forgotten about), and I completely missed them.

This means I never properly thanked the tippers, and looking back over my account I can't even figure out whom the tips came from. Is that even supposed to be possible with Amazon? I assume so, but I'm not sure. If anyone can enlighten me about how I can identify and properly thank people, I'd very much appreciate it. In the meantime, if you gave a tip, many thanks, and I hope to be able to figure out how to thank you more personally.

I'm not sure what the right answer ought to be here, but I thought it would be worth discussing; the case is Lowhorn v. Lowhorn, 2008 WL 2839485 (Ind. App. July 24). The trial court switched custody from mother's having primary physical custody (with father having visitation rights) and both parents having joint legal custody, to the father having sole legal and physical custody, with mother having visitation rights. At the time of the lower court hearing, the boy was nearly 14, and the girl was nearly 10. Here is the heart of one of the issues:

Mother also challenges the trial court's findings regarding her relationship with Galen, Mother's friend who transgendered from male to female. The trial court found:

19. Mother has consistently subjected the children to be publicly scrutinized and embarrassed by forcing them to regularly spend time with Mother's friend, a middle-aged male to female transgendered person.

20. Despite the children pleading with Mother that she not force them to be around this person, Mother continues to subject the children to being seen with the person in restaurants, in front of their friends, and at the children's extracurricular activities.

21. [When] Father learned of Mother's behavior from the children and saw the harmful effects the same had on the children, he confronted Mother about the same.

22. During the confrontation, Mother admitted to the foregoing and promised she would never allow the children to be around her transgendered friend again.

23. Subsequently, [mother], also concerned about the children's discomfort and confusion with her transgendered friend, admits to taking the children to a therapist, Erin Hamilton, without consulting [father] or providing him with any information regarding the children's confusion prior to the children's disclosure to him.

24. Dr. Richard Lawlor stated in his custody evaluation that he did not think Diana's unilateral choice of therapist was appropriate due to concerns that 'the particular therapist involved may have an agenda that would not seriously consider realistic concerns of the children'.

25. However, Mother has continued to subject her children to these circumstances repeatedly, despite the children's and Father's pleading.' ...

Mother has had a platonic friendship with Galen for several years. Father described Galen as 'a super nice guy.' In August 2005, Father learned that Galen had transgendered from male to female. There was no evidence presented that Mother subjected the children to being seen with Galen while he was dressed as a female in restaurants or at the children's extracurricular activities. Moreover, the evidence demonstrated that the children's friends saw Galen while he was dressed as a female only one time when Mother and Galen picked the children up from Father's house.

Father testified that the children were 'embarrassed.' After Father confronted Mother about Galen, Mother agreed that she would not 'have the kids around ... Galen.' For a few months, the children had no contact with Galen. Now, the only interaction between the children and Galen is when Galen comes to Mother's house for dinner two or three times a month.

The trial court's finding that 'Mother continues to subject the children to being seen with the person in restaurants, in front of their friends, and at the children's extracurricular activities' is clearly erroneous. Rather, the evidence demonstrates that, after the children's concerns were brought to Mother's attention, the children had interaction with Galen only a few times a month for a private dinner in their residence. There is no evidence that the children's occasional interaction with Galen during private dinners is harmful, and the evidence is simply insufficient to demonstrate a substantial change to modify custody....

(Show more.)

We also note that an extensive custody evaluation was performed by Dr. Richard Lawlor and submitted to the trial court. Dr. Lawlor noted that '[t]here is no psychological research to support the finding that involvement with transgendered individuals is of any risk to children. The only harm that would likely come to children would be from the children's reaction to that situation.' Dr. Lawlor's impression was 'that the children's current negative reactions are actually a combination of their own confusion and spontaneous reactions; as well as their father's somewhat shocked approach to the whole situation. Their reaction also flows from their mother's overly aggressive approach to trying to make sure both children grow up unprejudiced.' Dr. Lawlor believed that a change in custody was not an appropriate remedy to the situation. Rather, Dr. Lawlor recommended counseling 'to try to sort out whether or not this situation can be resolved without a change of custody and with maintaining the current custody arrangement.'

Specifically, Dr. Lawlor recommended the following:

'Should the children's current discomfort flow primarily from within themselves and not from Brian, and I do think that their discomfort is a combination of Brian's conservatism and their mother's extreme liberalism, it may be that a custody change is warranted.

However, my impression is that at this point, the discomfort of the children is actually a mixture flowing from the reactions of both parents, as well as some of the spontaneous actions on the part of both of the children. For that reason, I think that rather than a change of custody at this point, the issues should be dealt with in a therapeutic way.... For the moment, I would suggest that a change of custody is not the best way to go, and I would strongly recommend going with some type of therapeutic involvement at this time.' ...

(Hide the above.)

Had the trial court made [the] determination [that the children's dicomfort 'flowed primarily from with themselves' and not from Father] and a determination that the children were adversely affected or their emotional development was significantly impaired, its legitimate findings, including the strong desires of the children, may have supported its conclusions thereon and the conclusions may have supported the Judgment.... [But in the absence of such findings, we] reverse the trial court's grant of Father's petition to modify custody and remand for proceedings consistent with this opinion.

I've written in the past about how considering certain factors in child custody decisions violates parents' First Amendment rights. But this is a more complicated case, because it involves not just the mother's right of intimate association (a constitutional right that has generally been recognized as to family relationships, and likely would be recognized as to relationships with close friends as well), but also the children's: The mother isn't just associating with Galen, but putting children in a position where they should associate with him.

And while children surely don't have a legally enforceable right to refuse to associate with people whom both their parents choose -- just as I don't think they have a legally enforceable right to refuse to go to a church or a religious school that both their parents have chosen -- I'm not sure what the right answer ought to be when one parent offers one religion or set of friends, another offers another, and the children prefer one parent as custodian because of the religious practice or associations that this parent has. (I touch on this in note 203 of my article, but very briefly.)

This isn't quite what's going on here, since as best I can tell the children weren't specifically expressing a preference for father as custodian, but just apparently expressing a preference not to be around Galen when they're in their mother's custody. But I hope it shows the reason why I'm not sure what the right result ought to be.

So what do you think, not just under the somewhat peculiar facts of this particular case, but in others like it? Say we have two parents vying for custody. The children don't like associating with the transgendered people, lesbians, uncool people, disfigured people, fundamentalist Christians, Wiccans, blacks, or whites whom one parent invites over for dinner. (It may well be that the legal rules should be different for the different categories -- or maybe not.) The other parent offers an environment that the children seem to like more. Assume there's no serious threat to the children from the associates, nor any evidence of outright psychological damage stemming form the children's embarrassment -- just the sort of unease that people sometimes have, rightly or wrongly, from being around certain kinds of people.

Should a court consider this? Under what circumstances? What role should the child's age play?

Note that the usual "best interests" standard doesn't seem terribly helpful here, because it's not clear just how a court is to weigh the possible harm (whatever it might be) stemming from the child's unease or embarrassment against the possible benefit (whatever it might be) stemming from the child's learning to tolerate people around whom the child would otherwise be uncomfortable. Rather, the question seems to me to be what extent we weigh the child's emotional preference -- the child's (whether younger or older child's) interest in living in the environment the child finds more comfortable -- independently of what we think would be in the child's long-term best interests.

In re Bobrowich, 2003 WL 230701 (N.Y. City Civ. Ct.), was one of the cases that barred a man from changing "an obvious male name" (Stephen) to "a name that is commonly used as a shortened version of the female name" (Steffi), at least absent evidence of transvestitism, transsexuality, or maleness of the name in "some other culture."

But there's more, because Stephen Michael Bobrowich wanted his name changed not just to Steffi Michael Bobrowich, but to Steffi Owned Slave, because "I feel that I have been treated as a slave my whole life, being paid minimum and treat as dirt I wish to show that I am." No dice, the court said, giving a longish discussion of the history of abolition of slavery in New York, and concluding:

Owing to the fact that slavery is illegal in the State of New York, the Court cannot change the name of the petitioner to something that reflects this illegal status and is therefore objectionable. As stated above, since the Court is being asked to issue an order changing the petitioner's name, it could be interpreted that the Court is endorsing this illegal status and reprehensible condition. In Application of Thompson, 82 Misc.2d 460, 369 N.Y.S.2d 278 (Civ Ct. N.Y. Co.1975) the court refused to allow the petitioner to assume the name “Chief Piankhi Ankinbaloye,” since by approving the name “chief” the court would be bestowing an apparent title of authority on the petitioner.

Now this just makes no sense. Having a last name of "Slave" doesn't reflect any illegal status, just as having the last name of "Painter" doesn't reflect one's status as a painter.

Nor does a court's approval of the name "Steffi Owned Slave" bestow an apparent title of authority. I'm not sure that even "Chief" would have this effect, but at least there are chiefs (presumably American Indian chiefs or people who hold this title in foreign countries) in the U.S., so someone could think "Chief" is indeed a real title. Everyone knows slavery is illegal in the U.S.; no-one would see this as "an apparent title" "bestow[ed]" by the government. Plus when slavery was legal, it in any event wasn't marked with "Slave" being used together with one's name.

Now I sympathize with the court's desire to play no part in what it sees as an offensive exercise, or one that's likely to cause needless friction and offense to the public. It may well be that some such limitations on official name changes are indeed proper. But the court's ostensible reasoning, it seems to me, is a pretty weak support for its conclusion.

Thanks to Timothy Sandefur for the pointer.

So it turns out there is caselaw on this subject (despite what I said earlier), or at least the big picture. It doesn't have to do with the initial naming decision, as in the song. But if a boy wants to change his name to Sue, at least in some states, he may have to show that he is "a transvestite or a transsexual and, if a transsexual, whether he has undergone a sex change operation and is now anatomically and psychologically a woman" -- since otherwise such a change "would be fraught with danger of deception and confusion and contrary to the public interest" -- or at least that Sue "is regarded as a male name in this or some other culture."

Thus, changing your name from William to Veronica or from Stephen to Steffi is not allowed without such a showing; likewise Johnny to Sue. (Application of Anonymous, 587 N.Y.S.2d 548 (City Civ. Ct. 1992); (In re Bobrowich, 2003 WL 230701 (N.Y. City Civ. Ct. 2003).) But the trend for people who really are transsexuals -- which William-to-Veronica ultimately proved to be, but Stephen-to-Steffi apparently wasn't -- is to allow such name changes. (E.g., Matter of McIntyre, 715 A.2d 400 (Pa. 1998); Matter of Eck, 584 A.2d 859 (N.J. Super. 1991).)

Thanks to Timothy Sandefur for the pointer.

Courts have cited Wikipedia over 300 times, and many of those cites are in my view just fine when the citation is for a tangential and uncontroversial matter. But the Seventh Circuit's use of Wikipedia in Rickher v. Home Depot, Inc., handed down Monday, strikes me as troubling.

The key issue as to one part of the plaintiff's lawsuit was the definition of "wear and tear." The plaintiff cited Webster's II New College Dictionary and Random House Webster's College Dictionary, which defined the term as “Depreciation, damage, or loss resulting from ordinary use or exposure” and “Damage or deterioration resulting from ordinary use; normal depreciation,” But the court disagreed:

Although it is true that dictionary definitions of “wear and tear” often employ the word “damage,” that does not mean that damage and “wear and tear” are synonymous. Wear and tear is a more specific phrase that connotes the expected, often gradual, depreciation of an item. See Wear and Tear, http://en.wikipedia.org/wiki/Wear_and_tear, last visited May 30, 2008.

It is a form of depreciation which is assumed to occur even when an item is used competently and with care and proper maintenance. For example, friction may erode a hammer’s head. In the normal use of a hammer for its designed task erosion is impossible to prevent, and any attempt to eliminate this erosion would make the hammer useless. At the same time, it is expected that the normal use of a hammer will not break it beyond repair until it has gone through a certain amount of use.

A subtle difference, but one the Seventh Circuit thought to be quite important, and that does indeed appear to me important to the course of litigation. (The question in this part of the lawsuit was whether Home Depot's Damage Waiver rental contract provision — for which one had to pay more money — added anything beyond what Home Depot already provided for no extra charge under its Wear and Tear provision. If "wear and tear" was roughly synonymous with "accidental damage" but not through "misuse or abuse," then the Damage Waiver might be seen as pointless, and offering it for money might then be seen as a deceptive business practice under Illinois law. If the "wear and tear" was a narrower term than "accidental damage [without] misuse or abuse," as the court concluded, then the Damage Waiver would give the customer something, and offering it for money wouldn't be a deceptive practice.)

Now I strongly suspect that the judges cited the Wikipedia entry because it fit their preexisting understanding of what the phrase meant (an eminently reasonable mode of procedure for citations generally), so I doubt they relied on Wikipedia's wisdom to form their conclusion. Still, the parties obviously disagreed about the matter. The plaintiff's proposed definition was supported by dictionary entries (albeit shorter ones, which might have omitted important nuances). If the judges wanted to argue based on their experience, based on logic, or based on contrary lexicographic authorities — including, for instance, the use of the phrase in other sources — that's fine, and they did that in some measure. But they cited Wikipedia as the lead authority supporting their conclusion, and as the source for their important and controversial definition; and this strikes me as troubling.

First, there does seem to me to be a serious risk of manipulation by the parties in this sort of situation. The quoted part of the definition was added on Aug. 31, 2005, when the case was in progress at the district court. I have no reason to think that the change was made by anyone associated with the litigants (and the Wikiscanner check reveals nothing tell-tale, even when I check all changes from that IP address), but neither can we be sure, I think, that no such manipulation took place. And while it's important not to overestimate the risk of manipulation here — as I pointed out, the judges are likely relying on Wikipedia to support their preexisting understanding of this quite common term, rather than as an expert source that would provide such an understanding — there does seem to be some danger here. It seems possible that the judges, who after all quoted the definition as authoritative, would indeed be influenced by nuances of the definition even if they already agreed with the definition's main thrust.

And, second, I don't see much reason to see why, even unmanipulated, Wikipedia should be a substantial authority here. We don't know who wrote the definition, so we can't rely on his knowledge. This doesn't seem likely to be the sort of definition that would attract a great deal of attention and review in case of error, so that we can rely on a possible "wisdom of crowds." Dictionaries and encyclopedias aren't perfect, and I know there are arguments that Wikipedia is on balance roughly as accurate as the Encyclopedia Britannica (as well as arguments in response). But it does seem to me that, at least until such rough equivalence of Wikipedia and other sources is further demonstrated, courts should rest their decisions about important and controverted matters on sources — such as dictionaries, technical dictionaries, or encyclopedia entries — that at least have some more indicia of likely expertise.

Again, I should stress that for tangential and uncontroversial matters, Wikipedia may be quite good enough. Federal employees' time isn't unlimited, and tracking down authoritative sources to demonstrate the colorfulness of Polish boxer Andrew Golota (to give an example from another Seventh Circuit case, which cited Wikipedia to support such an assertion) is probably not the best ways to spend that time. But for something like the controversy in this case, I would think that the lead authority should be something other than a Wikipedia entry.

For some earlier thoughts of mine on Wikipedia and court opinions, see here. Thanks to my friend Steve Newman for the pointer to the Rickher case.

UPDATE: Link fixed, with thanks to Ted Frank.

So held the Philadelphia Court of Common Pleas, in NRA v. City of Philadelphia, 2008 Phila. Ct. Com. Pl. LEXIS 159, decided June 30 but just put up on Lexis. I hadn't seem much coverage of the subject, so I thought I'd note it, though the decision was a month old.

The court held plaintiffs (which included individuals as well as the NRA) lacked standing to challenge to a city ordinance requiring owners "to report to police a lost or stolen firearm within twenty-four hours after the loss or theft is discovered," an ordinance aimed at enforcing court orders banning weapons possession in domestic abuse cases, and an ordinance temporarily banning gun possession by people found to have been "exhibiting conduct indicating a clear risk that they may inflict personal injury on themselves or others."

I have a Slate piece this morning on the subject. It's got 1069, III, Mary R., Misteri Nigger, Santa Claus (plus Santa Robert Clause), Koriander, They, and even Darren QX [pronounced "Lloyd"] Bean!. (I use the period after the exclamation point advisedly.) Check it out.

The article also prompted some more submissions from readers. Chris Jenkins and Kevin Wells e-mailed me about Sheppard v. Speir (Ark. App. 2004), involves litigation between two unmarried parents over a child's name (a topic I didn't cover in my Slate piece). The name was "Weather'By Dot Com Chanel Fourcast Sheppard," selected by the mother; the father, a TV weatherman, sued for custody of the child, got it, and tried to change the name to Samuel Charles Speir. The question was whether Samuel Charles Speir was so unusual a name that it should be rejected.

No, wait, let me check my notes. OK, the question was about Weather'By Dot Com Chanel Fourcast, and the appellate opinion provides this excerpt from an exchange between the trial judge and the mother:

The Court: I simply do not understand why you named this child — his legal name is Weather'by Dot Com Chanel Fourcast Sheppard. Now, before you answer that, Mr. — the plaintiff in this action is a weatherman for a local television station.

Sheppard: Yes.

The Court: Okay. Is that why you named this child the name that you gave the child?

Sheppard: It — it stems from a lot of things.

The Court: Okay. Tell me what they are.

Sheppard: Weather'by — I've always heard of Weatherby as a last name and never a first name, so I thought Weatherby would be — and I'm sure you could spell it b-e-e or b-e-a or b-y. Anyway, Weatherby.

The Court: Where did you get the "Dot Com"?

Sheppard: Well, when I worked at NBC, I worked on a Teleprompter computer.

The Court: All right.

Sheppard: All right, and so that's where the Dot Com [came from]. I just thought it was kind of cute, Dot Com, and then instead of — I really didn't have a whole lot of names because I had nothing to work with. I don't know family names. I don't know any names of the Speir family, and I really had nothing to work with, and I thought "Chanel"? No, that's stupid, and I thought "Shanel," I've heard of a black little girl named Shanel.

The Court: Well, where did you get "Fourcast"?

Sheppard: Fourcast? Instead of F-o-r-e, like your future forecast or your weather forecast, F-o-u, as in my fourth son, my fourth child, Fourcast. It was --

The Court: So his name is Fourcast, F-o-u-r-c-a-s-t?

Sheppard: Yes....

The Court: All right. Now, do you have some objection to him being renamed Samuel Charles?

Sheppard: Yes.

The Court: Why? You think it's better for his name to be Weather'by Dot Com Chanel ... Fourcast, spelled F-o-u-r-c-a-s-t? And in response to that question, I want you to think about what he's going to be — what his life is going to be like when he enters the first grade and has to fill out all [the] paperwork where you fill out — this little kid fills out his last name and his first name and his middle name, okay? So I just want — if your answer to that is yes, you think his name is better today than it would be with Samuel Charles, as his father would like to name him and why. Go ahead.

Sheppard: Yes, I think it's better this way.

The Court: The way he is now?

Sheppard: Yes. He doesn't have to use "Dot Com." I mean, as a grown man, he can use whatever he wants.

The Court: As a grown man, what is his middle name? Dot Com Chanel Fourcast?

Sheppard: He can use Chanel, he can use the letter "C." ...

The court of appeals finished with, "we hold that the trial court did not err in determining that it was in the child's best interest to change his name."

Robert Schwartz also mentions professional comedian Woody Volcano Viagra, but this sporting event I'm running here operates on a strictly amateur basis.

UPDATE: From Patricia Reardon comes the case of Romanceo Sir Tasty Maxibillion. Romanceo -- er, Adrian Scott Williams -- lost, because he was a felon and the state persuaded the court that its "legitimate need to identify Williams by his current name constituted sufficient cause ... to deny Williams' petition."

More from Judge Powell, here in Georgia, F. & A. Ry. Co. v. Sasser, 61 S.E. 505 (Ga. App. 1908):

“Obvious” is a pretty strong sounding word. Its chief juridic employment, so far as my observation goes, is by judges of courts of review, who generally pronounce obvious those propositions (evolved, perhaps, with many concealed misgivings) which they are able to support with but sparse array of precedent and which they are unwilling to put forth as an original dictum without the supporting influence of some strong, impressive, faith-bearing word; for a proposition weak in substance is oft aided in appearance by the strength of sonancy, and “obvious” is a sonant word.

The Georgia bench seems to be quite the source of linguistic innovation, importation, and discussion, from "obvious" to "autoptic proference" to "defamacast" to "chutzpah."

A commenter on the "Suppression of Homosexuality-Related Speech" thread writes:

Is the ACLU defending students rights to wear shirts which read "Be happy, not gay"?

What if a student wanted to wear a shirt which stated "Be Ashamed, Our School Embraced What God Has Condemned"?

What about if a wedding photographer decides not to photograph a same-sex "marriage" ceremony?

What about if a dating service decides not to offer same-sex dating services?

What if a religious organization refuses to rent its property for same-sex "marriage" ceremonies?

What if businesses in Colorado wish to put up posters that list Biblical prohibitions against homosexuality?

Where is the ACLU on these cases? Or do First Amendment rights only flow in one direction?

Naturally, different organizations have different views of the scope of constitutional rights. Some might, for instance, see refusals to rent property as covered by the First Amendment or some other provisions; others might not. One can certainly fault groups for taking a view of constitutional rights that you think is mistaken — I've certainly faulted the ACLU in the past on these grounds — but it seems to me that one needs to do so with some explanation for why your view is right and theirs is wrong, rather than just based on an assumption that this is so. (One should also recognize that different ACLU chapters run their own show in large measure, and different ACLU officials have different views. For instance, ACLU President Nadine Strossen has prominently condemned some of the excesses of workplace harassment law as applied to speech, and might well opt to support businesses' First Amendment rights to put up posters with anti-gay speech; but the ACLU of Colorado might well take a different view.)

But beyond that, it helps to do some Googling: A Google search for aclu "be happy not gay" reveals this item from the Alliance Defense Web site (among many others):

ACLU opposes school in "Be Happy Not Gay" T-Shirt case

The AP reports on The Rockford Register Star (2.19.2008): "The American Civil Liberties Union has joined a Naperville high school student in her fight to wear a T-shirt that expresses opposition to homosexuality on moral grounds."

This is an ADF suit. View ADF press releases and documents here.

Again, I'm happy to agree that the ACLU gets things wrong by my lights in many cases. But we should be careful before making casual, unresearched assumptions about what the ACLU's position (or other groups' position) must be.

UPDATE: A commenter argues that the ACLU of Illinois' support for the "Be Happy, Not Gay" student was inadequate; but while the ACLU brief was termed a brief in support of neither side, the Alliance Defense Fund knew what it was talking about. In particular, as the ACLU brief makes clear, the ACLU took the view that the school harassment policy supposedly covered the T-shirt was unconstitutionally overbroad (p. 22), and that the students' plan of wearing the "Be Happy, Not Gay" shirt the day after the pro-gay-rights Day of Silence would not constitute harassment and thus would be constitutionally protected (pp. 20-21).

The ACLU opposed the student's request for a broader injunction allowing him to engage in unspecified speech opposed to homosexuality. But as to wearing the "Be Happy, Not Gay" shirt (which is what the commenter initially mentioned) in response to the Day of Silence event, the ACLU was pretty solidly in favor of the student.

A funny passage from Morse v. State, 72 S.E. 534 (Ga. App. 1911) (Powell, J.):

The first assignment of error is that the court erred in charging the jury as follows: “Evidence may be autoptic proference.” Error is assigned as to this charge on two grounds: (1) That the statement is abstractly incorrect; and (2) that it is misleading. Considering these points in reverse order, we may say (to borrow a Hibernicism from the private vocabulary of an ex-justice of the Supreme Court of this state) that the language excepted to is neither leading nor misleading.

As to the other objection -- that the language is abstractly incorrect -- if incorrectness from a legal standpoint is intended, the objection may be disposed of by citing Wigmore on Evidence, § 1150 et seq. If philological incorrectness is referred to, the objection is more tenable; for, while “autoptic” is a good word, with pride of ancestry, though perhaps without hope of posterity, the word “proference” is a glossological illegitimate, a neological love-child, of which a great law writer confesses himself to be the father (see Wigmore on Evidence, § 1150, note 1). Despite all this, we cannot brand the statement as reversible error. This court is rather liberal in allowing the judges on the trial benches the privilege of big words....

Now, lest our manner of treating this exception be regarded as a reflection upon the very able judge of the superior court whose language is under review, let us hasten to explain that the language is all right -- that to quote the excerpt alone does him injustice. During the progress of the trial, certain bottles and their contents had been introduced in evidence and were given the jury for their consideration, and the necessity was upon the judge of explaining to the jurors what use they could make of this class of testimony. As to such evidence the older writers used the phrase “real evidence”; but Professor Wigmore in his wonderful treatise, has pointed out that this is not an accurate expression, and has coined a new phrase, “autoptic proference,” to express it. Following Wigmore, Judge Felton used this expression, and then most clearly explained and illustrated to the jury, in plain, simple, homely language, just what the big words mean.

I particularly like the phrase "a good word, with pride of ancestry, though perhaps without hope of posterity."

To my surprise, this is a fairly well-established legal term in Georgia, with 18 references -- the earliest in 1962 and the most recent earlier this month.

The term is the Georgia courts' attempt to avoid the conceptual difficulty of deciding whether radio and television broadcasts should be labeled "libel" or "slander." Outside broadcasting, libel has traditionally referred to defamation by writing, pictures, or symbolic displays, and "slander" to defamation by speaking or some other sounds. Historically, the plaintiff had a harder time prevailing in civil slander cases than in civil libel cases; in an era where criminal libel prosecutions were common, libel was criminally punishable but slander generally was not; and more generally, slander, being evanescent, was generally seen as less harmful than libel. Defamation in broadcasting tended to consist of spoken words (though of course defamation on television could involve a writing), so it sounded like slander; but it had a large audience, so it sounded like libel. Different states pigeonholed broadcasting defamation in one or the other category, but Georgia decided to solve the problem by coining a new term.

So use it wisely, which is to say not at all outside Georgia. But don't be surprised if you hear it.

Sen. Obama, in response to the controversy over Israeli newspapers' publication of the note he placed in the Western Wall:

Asked what he wrote, Obama declined to answer, saying it was a private conversation between him and God.

The Maariv newspaper's response, prompted by the apparently intense criticism of its decision to publish the note:

"Obama's note was published in Maariv and other international publications following his authorization to make the content of the note public. Obama submitted a copy of the note to media outlets when he left his hotel in Jerusalem. Moreover, since he is not Jewish, there is no violation of privacy as there would be for a Jewish person who places a note in the wall."

UPDATE: Zvika Kreiger at The New Republic's The Plank blog alleges that Maariv never made any such assertion:

Yesterday, I posted an item about an accusation from Israeli newspaper Ma'ariv that the Obama campaign had leaked a copy of his Western Wall note to the foreign press (rather than Ma'ariv having bought it from some yeshiva kid who stole it out of the wall). After some additional reporting last night, I noted that the story sounded a bit fishy--not only has Ma'ariv not offered any tangible evidence to supprot this claim, but they also have only made the claim via a spokesman to various Israeli papers rather than printing the accusation in their own paper.

I just got off the phone with a Ma'ariv spokesman who says that the accusation is "completely false," and that he has no idea who these papers were quoting from Ma'ariv. "No official spokesman for Ma'ariv told this to any of the papers." I've got some calls in to these papers to find out where they got the quote. (I'll update here when I hear back.) He told me definitively that "the Obama campaign did not give us a copy of the letter or approve it for printing."

Either there's a huge snafu somewhere (or maybe more than one), or someone is lying. The Maariv's spokesman's response, as reported by The Plank, is very hard to reconcile with Haaretz's statement that "Ma'ariv issued a response Sunday" (the response being the one I quoted above). Either Maariv issued such a response or it didn't, and it's the sort of thing that it seems unlikely Haaretz would make up. But it does sound like someone is making something up somewhere (again, unless there's a very big misunderstanding); fortunately, I expect that the publications' reputations are on the line to the point that some evidence will emerge.

FURTHER UPDATE: A Washington Post blog now quotes Maariv as officially stating that Obama's statement was correct, and that no authorization was received. But how did Haaretz state the contrary? Seems like a major blunder on the part of one of those newspapers (or maybe both).

reads a front page headline in the L.A. Times print version. But the story says nothing about bias against women or against men, which is the standard understanding of the phrase "sex bias." Rather, the story discusses what the electronic version correctly labels "sexuality bias" -- discrimination by the Justice Department based on perceived sexual orientation.

It's true that sexual orientation discrimination is in a sense bias based on sex, in that it is a bias based on one's belief about the kind of sex that other people are having, and based on the sex of the other people's sexual partners. Yet "sex bias" has a familiar meaning to the reading public, and that meaning is discrimination against men or women, not against gays or lesbians. And while I realize headline writers have to fit everything in a fixed space, and "sex" is shorter than "sexuality," still having a headline that fits doesn't justify an outright mischaracterization of what's going on.

I should say that if Monica Goodling and others did discriminate against prosecutors based on the prosecutors' perceived homosexuality, that would be quite wrong. It wouldn't be a violation of federal antidiscrimination statutes, which don't cover sexual orientation, and it probably wouldn't be a violation of the Constitution (I set aside for now the question of precisely how probable that is). Still, it would be an unwise and unfair basis for choosing employees.

Yet unwise and unfair as it would be, calling it "sex bias" is simply inaccurate, given the conventional meaning of that phrase. And it also makes the allegation more serious than it is: Sex discrimination is a violation of federal antidiscrimination statutes, and pretty clearly of the Constitution as well. (This might not be so for high-level appointees, such as the chief U.S. Attorney in each district, but it would be so for the lower-level employees, one of whom was mentioned in the story.)

A student of mine had a great question:

This may seem really obvious, but I was wondering if you had any advice on note-taking methodology in connection with paper research. I find it really helpful to take notes/read more "actively", but am not sure its prudent to approach the material the same way I approached reading/briefing for classes. As I haven't yet pinned down the essence of my claim at this stage, I've just been writing down the holdings/reasoning/ambiguities I think could potentially be relevant, as well as some of the more promising citations in each text. Does that sound like a reasonable tactic? Or, in your experience, is there any particular approach that you feel best maximizes the value of your research and reading of cases?

I have some general thoughts, but the trouble is that I'm now many years removed from my first law review article research tasks, and while I've thought enough about other aspects of academic legal writing to overcome this handicap, I haven't thought enough about the specific task of note-taking during research. I'd therefore love to tap the collective wisdom of our readers who might have more immediate experience with this. What note-taking strategies have worked well for you when you're trying to read, digest, and summarize for your future reference a large and new body of law and of scholarship, with an eye towards writing your own law review article?

Some pretty damning factual findings in this federal district court of opinion, issued after a bench trial. The court ultimately concluded that the school board violated the First Amendment, and that the speech at issue did not cause any substantial disruption nor was reasonably seen as likely to cause such disruption, a result that seems quite right under the facts and the relevant First Amendment cases (Tinker, Fraser, and Morse). Here are excerpts:

This case arose from events involving a homosexual student at Ponce de Leon High School on Friday, September 7, 2007. The twelfth-grade student, Jane Doe, reported to a teacher’s aide that she had been taunted by a group of approximately five middle school students because of her sexual orientation. The middle school students allegedly told Jane that “dykes,” such as herself, were “nasty,” “gross,” and “sick.” The teacher’s aide reported the incident to Principal David Davis.

At the end of the school day on the following Monday, September 10, 2007, Davis called Jane into his office. Davis asked Jane if she had told the teacher’s aide that she identified herself as a lesbian. Jane answered, “Yes.” Davis then asked, “Are you a lesbian?” Jane again answered, “Yes.” Davis counseled Jane that it was not “right” to be homosexual. He then questioned Jane about whether her parents were aware of her sexual orientation. When Jane answered in the negative, Davis asked Jane for her parents’ telephone number so that he could call them and inform them of her sexual orientation. Davis also instructed Jane to “stay away” from the middle school students or that he would suspend her. Jane left Davis’s office in tears.

Jane was not present at school the following day because her sister had surgery. However, Davis’s rebuke of Jane on the basis of her sexual orientation became known to the student body. A false rumor circulated that Jane was absent from school because Davis had suspended her for being homosexual. Numerous students expressed their support for Jane by writing “GP” or “Gay Pride” on their bodies, wearing t-shirts with messages supportive of gay rights, yelling “Gay Pride” in the hallways, circulating petitions to demonstrate support for gay rights, and creating signs with messages supporting homosexuals....

Davis began investigating what had come to be known as the “Gay Pride” movement at the school. He interviewed approximately thirty students, interrogated them about their sexual orientations, and questioned them about their involvement in the planned walk-out of the assembly and their activities in relation to the movement. During those meetings, Davis instructed students who were homosexual not to discuss their sexual orientations. He also prohibited students from wearing rainbow belts or writing “Gay Pride” or “GP” on their arms and notebooks. He required students to wash “GP” or “Gay Pride” from their arms and hands and lifted the shirts of female students to verify that no such writings were present on their bodies.

(Show more.)

One of the students that Davis questioned was Gillman’s cousin, who identifies as homosexual. Davis questioned Gillman’s cousin about her sexual orientation. Davis stated that being gay was against the Bible and that it was not right. He expressed his hope that Gillman’s cousin would not “go down the road” of being a homosexual. Davis then instructed her not to discuss her sexual orientation with any students at the school, not to say “Gay Pride” or write it on her body or school materials, and not to wear her rainbow-colored belt. Davis warned Gillman’s cousin that if she violated his instructions, he would suspend her from school.

On Friday, September 21, 2007, and Monday, September 24, 2007, Davis suspended eleven students, including Gillman’s cousin, for five school days each as punishment for their involvement in the “Gay Pride” movement. As grounds for the suspensions, Davis explained that the students belonged to a “secret society” or “illegal organization” forbidden by school board policy; had threatened to walk out of an assembly; and had disrupted the school. Davis told the mother of a student whom he had suspended that he could secretly “send her [daughter] off to a private Christian school down in Tallahassee” or to the juvenile detention center and that “if there was a man in your house, your children were in church, you wouldn’t be having any of these gay issues.”

On Wednesday, September 26, 2007, Gillman wore a rainbow belt and a handmade shirt with the slogan “I Support Gays” to school as an expression of support for her cousin, her acceptance of homosexuals, and her belief that homosexuals should be afforded equal and fair treatment. On Thursday and Friday of that week, Gillman wore a rainbow belt to school to express the same beliefs. Gillman’s conduct did not cause any disruption at the school or other negative reactions, and she was not reprimanded or punished.

(Hide some of the above.)

In light of Davis’s prohibition of messages relating to the support and acceptance of homosexuals, Gillman sought clarification from the School Board about its own position on the matter. On November 2, 2007, Gillman and her cousin (who had previously been suspended by Davis), through legal counsel, sent a letter to the attorney for the School Board. The letter requested guidance on which phrases and symbols students could display at school without being disciplined. Specifically, Gillman sought permission from the School Board to display rainbows, pink triangles, and the following slogans: “Equal, Not Special Rights,” “Gay? Fine By Me,” “Gay Pride” or “GP,” “I Support My Gay Friends,” “I Support Gays,” “God Loves Me Just the Way I Am,” “I’m Straight, But I Vote Pro- Gay,” “I Support Equal Marriage Rights,” “Pro-Gay Marriage,” “Sexual Orientation is Not a Choice. Religion, However, Is.”

By letter dated November 12, 2007, the School Board responded that none of the phrases, symbols, or images contained in the letter dated November 2, 2007, could be displayed by students at Ponce de Leon High School. The School Board justified its censorship on the ground that the expressions indicated membership in an “illegal organization” prohibited by School Board policy and were disruptive to the educational process. The letter cited students’ plan to walk out of the school assembly on September 12, as an example of the disruptive effect of the messages....

Although the School Board conceded in its answers to interrogatories and at trial that the messages and symbols at issue are not vulgar, lewd, obscene, plainly offensive, or sexually suggestive, Davis attempted to justify the ban on speech, in part, by contending that rainbow stickers and the phrases “Equal, Not Special Rights,” “Gay? Fine By Me,” “Gay Pride” or “GP,” “I Support My Gay Friends,” “I Support Gays,” “God Loves Me Just the Way I Am,” “I’m Straight, But I Vote Pro-Gay,” and “I Support Equal Marriage Rights,” are sexually suggestive and immediately conjure images in children’s minds of people engaging in sexual acts.

Notwithstanding his obvious mis-characterization of the speech as sexual in nature, other evidence clearly suggests that the ban on speech was not motivated by Davis’s purported concerns about the sexual connotations of the speech. For example, during September 2007, a female student complained that a male student had dared another male student to offer her five dollars to “get in her pants.” Davis testified that he agreed that the conversation between the students was “far more sexually explicit” than the banned speech. Yet, Davis conceded that he did not warn the students not to discuss “heterosexual issues” at Ponce de Leon, nor did he investigate or even speak to the male students about the female student’s complaint. Davis also stated that he would not prohibit a male student from telling a female student that she is “cute” or that he wants to “date her,” but that he would ban “I Vote Pro-Gay.”

Nor were school officials concerned about students’ expressions of other political views at Ponce de Leon. While rainbows are banned at Ponce de Leon, Superintendent Griffin testified that swastikas are not. While “Equal, Not Special Rights,” and “God Loves Me Just the Way I Am” are prohibited, Davis and Superintendent Griffin stated that the Confederate flag is not. It is therefore apparent that the ban on speech at Ponce de Leon was motivated, not by school officials’ angst about political expressions at school, but by the hostility of school officials toward the particular message sought to be conveyed....

There’s a lot of bad behavior by the principal and the school board here, but the part that most struck me was that the principal “lifted the shirts of female students to verify that no such writings were present on their bodies.”

I should also note that if the principal’s argument is that pro-gay-rights speech is “sexually suggestive” and thus freely punishable by the school, then all speech that mentions homosexuality — for instance, arguments that the law ought not allow same-sex marriage, or that the military’s “Don’t Ask, Don’t Tell” policy is justified — would be equally unprotected, and should be equally prohibited.

I thought I'd put up my periodic pitch for my Academic Legal Writing (3d ed. 2007), and repost the very nice review from Tiger Jackson and Jeff Newman, in 11 Scribes J. Legal Writing 141 (2007):

Every law student is encouraged to try to make law review, but no one has ever explained how to do it as well as Volokh. His tone and style are so natural that you can hear his voice in your mind. Starting from scratch, he explains what a law review is, why the experience is valuable, what the write-on competition entails, how to boost your chance of success on it, and what the staff of a law review does. He demystifies the details of the write-on, making this section alone well worth the price for first-year law students.

But even a student who has no desire to be on law review will find this book enormously helpful for writing a seminar paper. In addition to reviewing important points of writing style (e.g., passive voice, legalese, redundancy), Volokh briefly explains the often-overlooked elements of logic and rhetoric and how their misuse can diminish an argument. Unlike most other writing guides, Volokh's book spends plenty of time showing the reader how to use evidence and why it must be critically examined rather than blindly accepted. Even though only five pages are especially devoted to seminar papers, much of the advice Volokh dispenses about writing for law review applies just as well to writing for a professor, and Volokh explains why. He encourages students to consider submitting papers to competitions and even to other law reviews, whether or not they are on their own schools' law review.

Despite the subtitle, this book isn't just for law students. Novice and experienced law-review writers will also find sound advice for improving their writing and expanding their markets. Volokh systematically guides the reader through the stages of producing publishable legal writing, from choosing your subject to methodically researching it, writing about it, and submitting the piece for publication. This book is a must-have for every law student. We also recommend it for practitioners interested in writing and publishing scholarly papers.

For reader reviews, see the Amazon page for the book. In my highly biased judgment, this is a nice present for incoming law students, for students who are starting their second year and plan to participate a law review write-on competition, for students who plan to write a student article (whether for law review or otherwise), or for graduates who are contemplating going into teaching and thus need to write more.

As I mentioned before, the publisher no longer gives me copies than I can sign and sell. But I've finally made up some bookplates — basically labels with a simple design on them — that I'll happily inscribe, sign, and send to anyone who asks. Send no money, but e-mail the address and the preferred inscription (if you have a preference) to volokh at law.ucla.edu.

In early June, I posted an item about "a faculty edited journal that basically accepted [my colleague Stephen Bainbridge]'s piece and then in fairly short order withdrew the acceptance, apparently with no justification, offering 'scrambled communications' as the only excuse." I didn't know the name of the journal, since Prof. Bainbridge hadn't posted it. I just received a message from my friend Ross Davies, who's a professor at George Mason and the editor-in-chief of the Green Bag, which turns out to be the journal involved:

Somehow (and strangely, since I am an irregular but frequent VC reader) I missed until just now your June 9 post on Law Review Shenanigans, This Time from a Faculty-Edited Journal. Having failed to speak when the post first went up, it might not be useful to chime in now when no one is listening. If you think it's worth it, though, you could quote me as follows:

Professor Bainbridge is quite right to be annoyed. He is also very kind to leave out the fact that the journal in question is the Green Bag, of which I am the editor-in-chief. I think, however, that it would be better to let the sun shine on (and the market respond to) the fact that the Bag treated an author shabbily. I just hope it doesn't scare off too many other good people. As I said, the Green Bag did treat Bainbridge poorly. All I can say in defense of the journal is that we good reasons for what we did — reasons that were purely internal to the Green Bag and had nothing to do with Bainbridge (a fine person and scholar, to the best of my knowledge) or his work (also fine). We'll do our level best not to make the same mistakes again. And the fact that the world — or at least a substantial slice of a relevant part of it — now knows of our capacity to be boorish should be a useful goad to better behavior in the future.

I thought this to be quite a gracious answer, which I'm happy to post.

(in their formatting, mind you -- I'm not promising anything about the content): HeinOnline contains PDFs of articles formatted just as they are on paper, and that are thus much more readable than the Lexis or Westlaw versions. Its collection also covers all the issues of most journals; Lexis and Westlaw tend to go back only to the 1980s for most journals (though they include older issues of a few publications).

I know UCLA law school has a subscription, which anyone with a UCLA IP address can access without the need for any special logon id; I expect lots of other law schools have the same. If you do have access to a subscription, use it -- you'll never want to go back.

Sounds like an interesting and worthwhile project, though one that might be difficult to execute:

The South Carolina Law Review is pleased to announce the launch of a Peer Review Pilot Program for Volume 60. Because we believe the current system of legal scholarship publication may be improved by changing how articles are selected, our Pilot Program will explore the feasibility of article selection through peer review in the context of a major, general interest law review. More specifically, the South Carolina Law Review’s Pilot Program will employ the following procedure:

(1) Authors will submit manuscripts (i.e., finished drafts ready for publication, not working papers or incomplete drafts), addressing any area of law, to the Pilot Program specifically by emailing a cover letter and copy of the author’s manuscript to sclawreview.gmail.com (see below for more details). Deadline for submissions to the Pilot Program is October 1, 2008.

(2) We will send all received manuscripts to volunteer peer reviewers for peer review. Each manuscript will be sent to at least one but more typically two anonymous peer reviewers, where each reviewer will have expertise in the area of law addressed by the manuscript. Not only will the author not know the identity of the reviewers, but also the identity of the author will not be disclosed to the reviewers, for the sake of focusing the evaluation on substantive merit rather than other factors. Peer reviewers will consist of legal practitioners, scholars, and judges. In the event that the volume of submissions to the Pilot Program makes peer review of all manuscripts logistically impossible or impracticable, the South Carolina Law Review editorial staff reserves the right to make an initial determination of which manuscripts will or will not be sent out for peer review. This initial screening by South Carolina Law Review’s student editors is a last resort and will be avoided if at all possible.

(3) Peer reviewers will provide feedback and recommendations to the editorial staff no later than December 1, 2008. Each reviewer will independently review the manuscript, paying special attention to the following factors: insight, timeliness, novelty, significance to the field, quality of analysis, scope of analysis, and appropriateness for inclusion in a general law review like the South Carolina Law Review. Each reviewer may also provide feedback on additional factors if he or she chooses.

(4) Based on careful consideration of the peer reviewers’ recommendations and the needs of the journal, the South Carolina Law Review editorial staff will choose whether or not to publish each manuscript. We may elect to reject a manuscript outright, accept a manuscript outright, or request the author to revise his or her manuscript in light of reviewer comments, with acceptance conditional on such revision or else the author’s convincing us that the revisions are not required.

(5) Accepted manuscripts will then enter the ordinary student-editing process, in which the South Carolina Law Review’s staff will edit manuscripts for grammar, style, citation format, and accuracy of quotations and facts. Each peer reviewed manuscript published in the South Carolina Law Review will be prominently marked as a peer reviewed piece....

Authors

If you wish to submit a manuscript to the Pilot Program, please email your manuscript to sclawreview [at] gmail.com by October 1, 2008. Please include the words “Pilot Project” in the subject line of your email, and please provide a cover letter (1) clearly indicating your desire to participate in the Pilot Program and (2) providing the names of three people who might be appropriate peer reviewers for your manuscript, based on subject matter expertise. You may also provide names of people who you believe would not be able to review your manuscript objectively or fairly. Please also fill out this brief survey providing your opinion regarding the need or lack thereof for peer review in legal publishing.

Peer Reviewers

If you wish to volunteer as a peer reviewer, please contact the student Peer Review Editor for Volume 60, Dr. John P. Zimmer, at ZIMMERJP [at] mailbox.sc.edu, providing the area or areas of law in which you have sufficient expertise to serve as a peer reviewer. Unless a particular volunteer peer reviewer requests otherwise, we intend to ask each reviewer to review no more than a single manuscript during the Pilot Program, since we recognize that your time is valuable.

If you do not wish to submit a manuscript or volunteer as a peer reviewer at this time, we would still like to hear your opinion regarding the need or lack thereof for peer review in legal publishing. Please take a moment to fill out this brief survey. Your response will help us achieve the Pilot Program’s primary goal: to improve legal publishing through the collective wisdom and experience of the entire legal community.

A terafic milestone, according to Google's report,

[O]ur systems that process links on the web to find new content hit a milestone: 1 trillion (as in 1,000,000,000,000) unique URLs on the web at once!

How do we find all those pages? We start at a set of well-connected initial pages and follow each of their links to new pages. Then we follow the links on those new pages to even more pages and so on, until we have a huge list of links. In fact, we found even more than 1 trillion individual links, but not all of them lead to unique web pages. Many pages have multiple URLs with exactly the same content or URLs that are auto-generated copies of each other. Even after removing those exact duplicates, we saw a trillion unique URLs, and the number of individual web pages out there is growing by several billion pages per day.

So how many unique pages does the web really contain? We don't know; we don't have time to look at them all! :-) Strictly speaking, the number of pages out there is infinite — for example, web calendars may have a "next day" link, and we could follow that link forever, each time finding a "new" page. We're not doing that, obviously, since there would be little benefit to you. But this example shows that the size of the web really depends on your definition of what's a useful page, and there is no exact answer.

We don't index every one of those trillion pages — many of them are similar to each other, or represent auto-generated content similar to the calendar example that isn't very useful to searchers....

Thanks to Dan Friedman for the pointer.