Can any of you recommend an under-the-pillow alarm clock, for when I need to wake up early, but don't want to wake my wife?

I've seen various options online, but I don't know whether their bulk or their normal noise interferes with sleep (before the alarm is supposed to interfere with sleep, of course). Thanks!

From CollegeScholarships.org:

We're giving away $10,000 this year to a college student who blogs. The Blogging Scholarship is awarded annually.

Scholarship Requirements:

* Your blog must contain unique and interesting information about you and/or things you are passionate about. No spam bloggers please!!!
* U.S. citizen or permanent resident;
* Currently attending full-time in post-secondary education in the United States; and
* If you win, you must be willing to allow us to list your name and blog on this page. We want to be able to say we knew you before you became a well educated, rich, and famous blogging legend....

Submission Deadline: October 30th, 2008....

As I mentioned below, the National Education Association -- basically an advocacy group and a labor union -- refused to lease Parents and Friends of Ex-Gays (PFOX) exhibit space at its 2002 convention, because the NEA disapproved of PFOX's position that gays and lesbians can and ought to "make the choice to leave homosexuality." PFOX then sued, claiming that this constituted sexual orientation discrimination in a place of public accommodation, in violation of D.C. human rights law.

I argued below that the D.C. Office of Human Rights' reason for rejecting PFOX's claim -- that ex-gays aren't protected from sexual orientation discrimination by D.C. law -- was mistaken. But the NEA should still be entitled to act as it did, because of its Free Speech Clause rights.

The NEA excluded PFOX from a speech product that the NEA put together (the exhibitors at its conference), because it disapproved of PFOX's message. As Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston recognized, organizations that create such speech products have a constitutional right to control what speech they include and what they exclude. And that's true even if the speech product doesn't have a terribly coherent message. In Hurley, the Court protected the rights of the organizers of a St. Patrick's Day parade, though the parade consisted of a bunch of marching groups, floats, and banners, and the organizers had only very rarely excluded participants as unsuitable:

Rather like a composer, the Council selects the expressive units of the parade from potential participants, and though the score may not produce a particularized message, each contingent's expression in the Council's eyes comports with what merits celebration on that day. Even if this view gives the Council credit for a more considered judgment than it actively made, the Council clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another. The message it disfavored is not difficult to identify. Although GLIB's point (like the Council's) is not wholly articulate, a contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics. The parade's organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control.

When an advocacy group such as the NEA puts together an exhibition -- even by soliciting people to participate, and to pay money for the privilege -- it is implicitly conveying the message that the exhibitions convey messages that are of value to the group's members, and that are broadly at least potentially sound (morally or politically). If the messages were primarily commercial advertising, especially of products that aren't themselves fully protected speech, the Hurley rule would not apply. But when someone is putting on an exhibition, whether of art or of education and advocacy, they have a First Amendment right to decide which speech to include and which to exclude.

Note that the NEA's being a specially federally chartered corporation doesn't strip it of this First Amendment right, just as the Boy Scouts' being a specially federally chartered corporation doesn't strip it of its First Amendment rights. Perhaps if the NEA got a subsidy from D.C., and D.C. could condition the subsidy on a decision not to discriminate in its events against certain classes of speakers (though that itself is not entirely clear). But D.C.'s antidiscrimination law isn't triggered by receipt of subsidies.

Finally, note that it's not clear whether D.C.'s public accommodation law should even be interpreted as applying to conference exhibitor choices, or for that matter to discrimination based on an exhibitor's sexual-orientation-related speech as opposed to the exhibitor's own sexual orientation. But even if it is interpreted this broadly (much like Massachusetts courts interpreted Massachusetts law this broadly in Hurley), the Free Speech Clause would protect the NEA's right to choose which speakers to allow into the exhibitions at its conferences.

The National Education Association — basically an advocacy group and a labor union — refused to lease Parents and Friends of Ex-Gays (PFOX) exhibit space at its 2002 convention, because the NEA disapproved of PFOX's position that gays and lesbians can and ought to "make the choice to leave homosexuality." PFOX then sued, claiming that this constituted sexual orientation discrimination in a place of public accommodation, in violation of D.C. human rights law.

The D.C. Office of Human Rights rejected this claim, in Parents and Friends of Ex-Gays, Inc. v. National Education Association, among other things concluding that discrimination against "ex-gay[s]" doesn't qualify as prohibited sexual orientation discrimination:

Title VII and the United States Constitution define the characteristics of the categories that are protected from discrimination as immutable characteristics, i.e. those characteristics that are not subject to change as race, national origin, and gender. Therefore, the OHR's determination that Complainant, as an Ex-Gay, is not a member of a protected category is supported by Complainant's own definition of itself as "a man or woman who has left homosexuality and is now a heterosexual by preference or practice." Complainant's definition of an Ex-Gay clearly does not assume an immutable characteristic since an Ex-Gay is someone who was once a homosexual, but has reverted to a heterosexual. Immutable characteristics are those characteristics that a person is born with and/or has no control over and, therefore, the law prohibits discrimination based on those characteristics. Ex-Gays, as defined by Complainant, appear to have control over their sexual orientation and, therefore, the OHR correctly determined that they do not belong to a protected category.

This reasoning, of course, isn't limited to the unusual situation of discrimination against an advocacy group because of the group of people whom it represents, or because of the position that it espouses. It also applies to discrimination against particular individuals because they describe themselves as ex-gay. And the reasoning strikes me as clearly wrong.

First, the D.C. Human Rights Act bans discrimination not only based on immutable characteristics, but also based on always or sometimes mutable ones — "religion, ..., marital status, personal appearance, ... familial status, family responsibilities, ... matriculation, political affiliation, source of income, or place of residence or business." Antidiscrimination law aims to ban discrimination not just based on characteristics that people can't change, but also (among other things) on characteristics that the law judges they shouldn't have to change (religion being the most common example). So there's no reason to assume that "sexual orientation" discrimination is banned only to the extent that sexual orientation is immutable.

Moreover, sexual orientation is defined as "male or female homosexuality, heterosexuality and bisexuality, by preference or practice" (emphasis added). And this is quite consistent with how the term is casually used. Say, for instance, that an employer fires an employee because the employee is a bisexual woman who has shifted from engaging in heterosexual relationships into engaging in lesbian relationships. The employer might even be sincere in limiting its basis of discrimination this way; say the employer reasons, "if a woman has been lesbian all her life, I won't fault her for her acting on that — but if a woman can be with a man but chooses to be with a woman, that's a chosen sin, and I don't want anything to do with her."

Of course that's sexual orientation discrimination, even though it's discrimination based on a matter — sexual "practice" — that is both "mutable" in theory (anyone can avoid any sexual "practice," setting aside cases of rape, by just not engaging it, even to the point of entirely abstaining of sex) and in practice (this woman did change her practice, and might well be able to live a fulfilling life while entirely abstaining from lesbian sex).

We don't even have to decide whether the woman was genuinely bisexual, or was once straight and has changed her orientation to lesbianism. I know there's controversy about whether that's possible, but I suspect that it's virtually impossible to resolve whether it's possible, and in any case the law doesn't require that the controversy be resolved.

All that's important is that the employer discriminated based on a combination of "sexual ... preference" (bisexuality) and "sexual ... practice" (lesbianism). Someone with a different preference/practice mix (e.g., bisexual preference and heterosexual practice, or by hypothesis lesbian preference and lesbian practice) wouldn't have been fired, but someone with this preference/practice mix was.

The same is true for bisexuals-by-orientation whose practices were once homosexual, but whose practices are now heterosexual — or for homosexuals-by-orientation who say they've managed to change their practices to heterosexual. It doesn't matter whether they believe they've changed, or conclude that if they are now happy with their heterosexual practices, they must have really been bisexual by orientation all along (maybe even if they've deluded themselves into thinking that they were originally entirely homosexual). What matters is that treating ex-gays worse than straights-all-along is sexual orientation discrimination.

As I'll explain in the next post, the NEA should still be entitled to refuse to lease space to PFOX — but because of the NEA's Free Speech Clause rights, and not based on the Office of Human Rights' reasoning. And the basis makes a difference, because the Office of Human Rights' reasoning applies even to the typical discrimination case, where the employer's Free Speech Clause rights wouldn't be involved.

My colleague and leading intellectual property scholar Doug Lichtman has put together I/P Colloquium, a site for distributing podcasts on the subject. The first item is a very interesting conversation with Fred von Lohmann at the Electronic Frontier Foundation, mostly about copyright and technology. Plus, if you're a lawyer, you can get Continuing Legal Education credit in many states just for listening (details are on the site).

I've yet again run across the claim that it's an error to call a tomato a "vegetable," because it's really a fruit. I'd blogged about this three and a half years ago, but I thought I'd rerun the post to get reader comments (which weren't enabled when I originally posted this).

The tomato, it seems to me, is both a fruit and a vegetable. It is indeed, botanically speaking, a fruit, a term that's technically defined as "The ripened ovary or ovaries of a seed-bearing plant, together with accessory parts, containing the seeds and occurring in a wide variety of forms." But it's also a vegetable, defined as "[t]he edible part of" "[a] plant cultivated for an edible part, such as the root of the beet, the leaf of spinach, or the flower buds of broccoli or cauliflower." These are from the American Heritage Dictionary, not a scientific work, but my sense is that these are indeed the official definitions.

Now naturally in lay English, the matter is different: Apples aren't usually labeled vegetables, and the categories of vegetable and fruit are usually mutually exclusive. But in lay English, the distinction isn't ripened ovary vs. not a ripened ovary, but rather dessert vs. non-dessert, as the Supreme Court astutely captured in an 1893 import duties case:

Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.

The attempt to class tomatoes as fruit is not unlike a recent attempt to class beans as seeds, of which Mr. Justice Bradley, speaking for this court, said: "We do not see why they should be classified as seeds, any more than walnuts should be so classified. Both are seeds, in the language of botany or natural history, but not in commerce nor in common parlance. On the other hand in speaking generally of provisions, beans may well be included under the term 'vegetables.' As an article of food on our tables, whether baked or boiled, or forming the basis of soup, they are used as a vegetable, as well when ripe as when green. This is the principal use to which they are put. Beyond the common knowledge which we have on this subject, very little evidence is necessary, or can be produced."

In Rownak v. Rownak, 2008 WL 4491823 (Ark. App. Oct. 8), a divorcing couple agreed "that the minor children be raised in the Protestant faith," which apparently meant to them that they weren't supposed to "promot[e] another religious belief system/faith to the minor children unless both parties should consent." The court accepted this agreement, and made it part of its divorce decree.

A couple of years later, the husband started promoting Mormonism to the children. The wife asked the court to find the husband in contempt, which the court did. A week ago, the Arkansas Court of Appeals refused to disturb the contempt finding.

The specific reasoning is clouded by the father's failure to appeal the order; he instead filed a motion for clarification or modification of the order, and appealed the denial of that motion. But my sense is that the heart of the court's reasoning is that if parties made a deal, they can be held to the terms of that deal, even if the deal involves a promise not to speak or not to engage in religious conduct. "[T]he injunction about which appellant complains has for its basis a valid contract between the parties and does not violate appellant's constitutional rights. The circuit court's order merely effectuated the parties' agreement ...." (Note that the contempt citation was for violating the decree, which embodied the parties' agreement; as I read it, the courts didn't find that the religious teaching was against the children's best interests, and thus didn't rest their reasoning on the children's best interests.)

This, it seems to me, raises three separate questions:

(1) Should such contracts not to speak (whether religiously or otherwise) be enforceable in some way, whether by damages or otherwise? The court said yes in Cohen v. Cowles Media (1991), and I think that's right.

(2) Should such contracts be enforceable by court order, via contempt penalties and not just damages awards? I'm inclined to say yes as well.

(3) When should such contracts nonetheless be unenforceable on the grounds that they require courts to make theological decisions, such as whether Mormonism is included within Christianity, whether Jews for Jesus is included within Judaism, whether Reconstructionist Judaism is included within Judaism, or whether Mormonism is included within Protestantism?

I think there are substantial limits on the enforceability of such contracts. The church property cases held that courts generally can't make theological decisions, such as which claimant's views are closer to orthodox (with a small "o") Presbyterianism; and I think the logic extends also to the interpretation of contracts, wills, and trusts that call for such decisions. Nor can courts avoid this constitutional barrier by trying to figure out what the majority of members of a religion thinks (hard to do reliably, plus it assumes the conclusion of who constitutes "members of a religion," and it privileges majority denominations within a religious group over minority denominations). And courts usually can't avoid the constitutional barrier, I think, by asking what the parties intended the term to mean — the best test of a word's intent is usually the word itself, and that is the very thing that calls for theological decisionmaking.

The question then is whether such contracts are categorically unenforceable, or whether there's some exception, for instance when there's seemingly overwhelming agreement about the question. For instance, the official Church of Jesus Christ of Latter-Day Saints site expressly says that "we are not Protestants"; let's say this is largely uncontroversial among those Mormons who have an opinion on the subject. Can the court therefore conclude that it can say Mormonism is "another religious belief" than "the Protestant faith," even though it is forbidden from resolving more controversial questions? Or does the objection of even one person who expresses a different religious view — perhaps a party in this very case — create enough controversy that a secular court should refuse to enforce the parties' agreement?

Many of you know about Miami Herald v. Tornillo (1974), in which the Supreme Court unanimously struck down on First Amendment grounds a requirement that newspapers publish replies to criticisms of candidates, and Red Lion Broadcasting Co. v. FCC (1969), in which the Court unanimously upheld a requirement that broadcasters broadcast replies to criticisms of identified people. (Red Lion also upheld the Fairness Doctrine, which applied to coverage of unpersonalized issues as well, but here I'm talking about the Court's upholding the so-called Personal Attack Rule.) Some have suggested extending this to the Internet. And of course there have been many attempts to bar anonymous speech, online and elsewhere.

Well, a few months ago I came across the following proposal (some paragraph breaks added):

[L]ibelling (gross and malignant libeling) has become the crying sin of the nation and the times! ... [T]he general prostitution of the liberty of the press; the overwhelming torrent of political dissention, the indiscriminate demolition of public characters; and the barbarous inroads upon the peace and happiness of private individuals ... constitute in my mind a subject of the highest concern ....

The fatal consequences of this public malady begin already to appear. The press has lost its use as an instructor and a censor. Citizens of the same community are pledged to mutual hatred and persecution. All respect for the magistracy and the law is falling into derision. Good and wise men will soon abandon the field of public service. And with a fatality not uncommon in the history of nations, the avowed friends of a free representative government, are arming its real enemies with weapons for destruction....

[Discussion of the inadequacy of then-existing libel law omitted. -EV] I ... suggest, that every printer who assails the character of a citizen should be compelled, if required, to publish the defence; that every printer and editor of a newspaper, or other periodical work, should register his name in some public office of the proper county, to be evidence of the fact of publication, upon trials at law; and that whenever a grand jury shall present a press, as a public nuisance, the printer and the editor should be bound in a recognizance with sureties for their future good behaviour, and the court authorized to suppress it for a limited time.

That's from Pennsylvania Governor Thomas M'Kean, speaking on Dec. 4, 1806. (See N.Y. Spectator, Dec. 10, 1806, p. 2.) And here's an interesting response as to the right of reply from a contemporaneous critic (Danville North Star, Feb. 17, 1807) — an argument that I don't recall having seen before in debates about cases such as Tornillo and Red Lion, but that I imagine might well be relevant today, especially online:

But suppose, what is very likely, that the defence be a more gross libel than the original publication, where is then the "reparation to the feelings and fame of the injured individual?" An act containing such a compulsory clause ought to be denominated an act to encourage and promote, not an act to restrain and suppress, the crime of libelling.

funding for programs for inmate mothers (but not fathers) upheld: That's the California Court of Appeal's decision in Woods v. Shewry, decided yesterday. The court was applying California's constitutional test for sex classifications, which is that these classifications must be subjected to strict scrutiny if men and women are similarly situated for purposes of the program -- the court concluded they were as to the domestic violence victim programs, but not as to the inmate parent programs.

U.S. v. Guerrero-Leco, 2008 WL 4534226 (W.D.N.C. Oct. 6, 2008), holds that the Second Amendment doesn't apply to illegal aliens. The court correctly declines to follow pre-Heller Fourth Circuit precedent that upheld the ban on illegal aliens' possession of guns, and instead reasons itself from Heller. The reasoning, unfortunately, isn't very detailed:

The Supreme Court did not find that all individuals present in America are protected by the Second Amendment. Rather, the Court described that protection as belonging to American citizens [footnote] who "inherited [it] from our English ancestors." Nothing in the opinion purports to extend the Second Amendment's protection to those outside the American political community like the defendant who allegedly entered and remained unlawfully in the country. This inferior court will not read into Heller a more expansive right than recognized therein.

[Footnote:] Examples include: "we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation," Id. at 2799 (emphasis in original); "this right was intended ... and was guaranteed to, and to be exercised and enjoyed by the citizen," Id. at 2806 (quoting Andrews v. State, 50 Tenn. 165, 183 (1871)(ellipsis in original; internal quotation marks omitted)); "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes," Id. at 2815-16; "[The District's requirement] makes it impossible for citizens to use [firearms in the home] for the core lawful purpose of self-defense and is hence unconstitutional," Id. at 2818.

But I doubt that the Court's casual references to citizens were a deliberate judgment that the right only applies to citizens (and thus not to, for instance, legally resident aliens), or should be treated as holding or even strong dictum on the matter. "Citizen" is sometimes loosely used, including in court opinions, to generally mean individuals; and more broadly courts may talk about the rights of citizens (who are the bulk of rightsholders) without foreclosing the possibility that noncitizens might have such rights as well. Consider, for instance, the full context for the first passage quoted in the footnote: "Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose." The Court wasn't suggesting that the First Amendment protects only citizens (a view that the Court has generally expressly rejected); it was using citizens to mean something broader (or at least saying that citizens have the right without denying that noncitizens might as well).

There are good and careful arguments that can be made in favor of the conclusion that the Second Amendment doesn't apply to illegal aliens -- such as those put forth by a magistrate judge in the Southern District of Florida in August -- but I don't think that the court's argument here is by itself persuasive.

It turns out there are at least a couple of dozen cases, from many jurisdictions, that talk about a noncustodial parent's "right of first refusal to babysit the children."

This makes perfect sense -- I assume it means that when the custodial parent wants to leave the children with a babysitter, the noncustodial parent should get to be that babysitter if he or she so wants, much like a right of first refusal operates in commercial contracts. But it just sounds a bit odd, given how commercial "rights of first refusal" usually are. I take it that when two parents can't stand to be near each other, and drop the children off at a third party, we'll be hearing about how the children are "in escrow."

A commentator on the criminal harassment thread writes something that I've often heard from others as well:

Blah blah blah. In a word in which campus speech codes and 'hate speech' are widely accepted jurisprudence, who cares? Freedom of Speech as you want to define it hasn't existed for decades.

Before we say that free speech talk is pointless because free speech law is so badly busted, let's make sure that we accurately describe current "jurisprudence":

1. There is no "hate speech" exception to the First Amendment. Some people have argued for such an exception, but it has not been accepted by the courts.

2. Campus speech codes (which generally means codes restricting university student speech) have been struck down by every court that has considered them, and there have been several. I agree that where they exist they can still have an improper deterrent effect, even if they're almost never enforced, and routinely struck down. But "widely accepted jurisprudence" treats them as unconstitutional. That's pretty much the best the courts can do now, given our current sensible standing rules that don't allow courts to strike down a speech code until a proper lawsuit is brought to throw it out.

3. I do think that hostile environment harassment law poses serious First Amendment problems. I think I've written more about this subject than anyone else. But for all its flaws, the jurisprudence in this area neither endorses campus speech codes nor a broad "hate speech" exception.

4. The phrase "Freedom of Speech as you want to define it" -- which I take it means broad free speech protection -- "hasn't existed for decades" suggests that there once were the Good Old Days of free speech, and now they're gone. But that's just not so. Speech today is probably on balance as broadly protected in the U.S. as ever, and more so than at nearly other time in the past. I've discussed this before as to speech on campus, but it's also true as to other kinds of speech. (For instance, I agree that limits on corporate speech around elections should be unconstitutional, and that cases upholding them are mistaken. But such limits have been around in one form or another since the early 1900s.)

So it's certainly perfectly proper to condemn speech restrictions that one sees as unconstitutional, or constitutional doctrines that one sees as unsound. But let's not despair of free speech protection based on an unsound description of what speech is actually protected by current legal rules.

I just learned that two weeks ago a federal district court certified a question to the Washington Supreme Court:

The Court finds it is necessary to ascertain Washington law with respect to a library's public computer Internet filtering because Article 1, § 5 [of the Washington Constitution] provides broader coverage from an overly broad governmental policy than the First Amendment. Washington law does not clearly define what role a state library’s mission and functions play in analyzing whether a library’s Internet-filtering policy violates Article 1, § 5. Therefore, the Court exercises its discretion to certify the state constitutional issue(s) to the Washington Supreme Court.

The district court opinion (Bradburn v. North Central Regional Library Dist. also has more about the factual submissions so far in this case, one of the few to have actually reached the courts. ("[T]here are only three reported cases addressing Internet filter use in public libraries: United States v. American Library Association, 539 U.S. 94 (2003); Miller v. NW Region Library Bd., 348 F. Supp. 2d 563, 569-70 (M.D.N.C. 2004); and Mainstream Loudoun v. Board of Trustees of the Loudoun County Public Library, 24 F. Supp. 2d 552 (E.D. Va. 1998).)

As you may recall, the American Library Association decision didn't resolve even the First Amendment question of whether a library could continue to block adult users' access to nonobscene Internet materials. Justice Kennedy's and Justice Breyer's concurrences stressed that the Court was deciding only whether the federal law mandating filters was constitutional so long as "on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay" (that's from the Kennedy opinion). In this case, the allegation is that librarians did not promptly unblock certain constitutionally protected material that was sought by adults, so even the First Amendment issue is still open -- as is the Washington Constitution issue that the district court is asking the Washington Supreme Court to explore.

CNN reports:

You can call her Cutout Dissection.com, or Cutout for short, but just don't call her Jennifer.

The former Jennifer Thornburg -- whose driver's license now reads Dissection.com, Cutout -- wanted to do something to protest animal dissections in schools.

The 19-year-old's new name is also the Web address for an anti-dissection page of the site for People for the Ethical Treatment of Animals, where she is interning.

"Despite her legally changing the name, she said most of her family members still call her Jennifer." Ya think?

This dissent from denial of certiorari that Orin noted is obviously noteworthy less for its legal analysis and more for the opening paragraph's amusing departure from normal Supreme Court style. This was implicit, I'm pretty sure, in Orin's posts, but I thought I'd make it explicit, and explicitly solicit comments about it.

In particular, are there other examples of such self-conscious stylistic departures in Supreme Court opinions? I can't think of any off the top of my head, though of course there are a few instances (including whole opinions in rhyme, invariably very bad rhyme) in lower courts.

I was talking to some friends of mine, and the question turned to which kinds of lawyers tended to read which kinds of blogs. My sense is that accurate survey data is hard to come by on this, and naturally much turns on whom you ask (so that my question here will surely yield a skewed set of answers, and skewed in several different ways). But I thought that even an impressionistic sense would be helpful, or at least better than our own guesswork.

So if you're in the in-house counsel's office at a big company, or know people who are, please let me know what blogs you read. Please feel free to post anonymously, if you prefer, but if you could include some sense of what industry or company type you're in, that would be good. Or if you'd like to e-mail me at volokh at law.ucla.edu, that would be good, too. Many thanks!

We blogged about this paper (with some skepticism) this Spring, and also linked to a critique by Yale lawprof and leading empirical scholar John Donahue. A couple of weeks ago Donohue withdrew some parts of his critique, but retained other parts; the revised post is here. I thought I'd therefore note this for the sake of completeness and accuracy, and in case some of our readers continue to be interested in this topic.

That's how I read the prosecution and conviction in State v. Ellison (Ohio Ct. App. Oct. 10). The facts:

[Ripley C.] Ellison and Savannah Gerhard were childhood friends but had a falling out during seventh grade. According to Ellison, the fallout occurred when her younger brother accused Gerhard of molesting him. The Hamilton County Department of Job and Family Services (“JFS”) investigated the claim and determined that it did not have enough evidence to substantiate that the abuse had occurred.

As teenagers, Ellison and Gerhard attended the same high school. During the summer of 2007, Ellison posted on her Internet “MySpace” page a picture of Gerhard that was captioned “Molested a little boy,” and she stated in her personal profile that she hated Gerhard. Ellison allowed for public, rather than private, viewing of her MySpace page.

After hearing about the posting from others, Gerhard used the Internet to view Ellison’s MySpace page. Gerhard had previously observed a short remark by Ellison on a contemporary’s MySpace page that also referred to the molestation accusation. But Ellison never directly communicated these postings to Gerhard, who also had a MySpace account.

Gerhard complained to authorities at her school about the postings. Ellison removed them from her MySpace page at the request of the school’s resource officer investigating Gerhard’s complaint. Ellison was then charged criminally for telecommunications harassment under R.C. 2917.21(B).

At a bench trial, Gerhard confirmed that Ellison had never directly communicated with her over the Internet and that she had sought out the postings. She added, however, that she had felt “harassed” by the postings and that she had overheard Ellison make a similar remark about her at school.

Ellison testified that she believed her brother’s accusations against Gerhard were true. And she gave the following explanation for posting the offensive material: “I think that other people need to know how she is. And she denies everything, but a lot of people believe that she did it. And I was told that she did it. And so I think that other people have a right to know.”

Subsequently, Ellison was convicted on one count of telecommunications harassment ... under R.C. 2917.21(B), which provides that “[n]o person shall make or cause to be made a telecommunication, or permit a telecommunication to be made from a telecommunications device under the person’s control, with purpose to abuse, threaten, or harass another person.” The state proceeded in this case under a theory that Ellison had posted a “rumor” on the Internet to harass Gerhard.

So we have a criminal prosecution for speech that supposedly "harass[es]" (or perhaps "abuse[s]") by making allegations of criminal conduct — but the state has no obligation to prove falsity, and the defendant isn't even entitled to a defense of truth. Sounds like a pretty clear violation of the First Amendment.

Fortunately, the Ohio Court of Appeals reversed the conviction, but unfortunately it didn't reach the First Amendment question. The court concluded that there was no evidence of the purpose to harass (defined by the court as "inten[t] to alarm or to cause substantial emotional distress to the recipient, not just to annoy," with the likely extra requirement that the speech "serve[] no legitimate purpose"):

The burden is not met by establishing only that the defendant knew or should have known that her conduct would probably cause harassment. The legislature has created this substantial burden to limit the statute’s scope to criminal conduct, not the expression of offensive speech. Whether Ellison was liable for defamation was not established in the proceedings below and can be addressed in civil proceedings....

The state argued that Ellison’s posting of the “rumor” after JFS had found the allegation unsubstantiated showed a purpose to harass. But JFS’s conclusion did not mean that dissemination of the allegation could not serve the legitimate purpose of warning others of what Ellison believed to be criminal behavior. Moreover, it was undisputed that Ellison never directed a telecommunication to Gerhard despite the opportunity to do so. These facts rendered the state’s position untenable.

But while I'm glad about the reversal, it still appears that someone can be prosecuted for speech — even speech to the public — so long as it "serves no legitimate purpose" in the eyes of a judge or a jury, and so long as the judge or jury concludes that it was intended to cause substantial emotional distress.

Say (for instance) that a university student has a political dispute with students from the Muslim Students Association, and then posts the Mohammed cartoons on his site (with or without an explicit connection to the particular students with whom he has had the dispute). He could then potentially be criminally prosecuted on the theory that the speech "serves no legitimate purpose" and "was intended to cause substantial emotional distress."

Of course, he could respond that he had the legitimate purpose of criticizing extremist strains of Islam (or Islam generally), but then the judge or jury would have to decide whether such a purpose is "legitimate," and whether that really was his purpose or whether he was just motivated by a personal grudge. And the human tendency to assume the worst motives of those with whom one sharply disagrees may well lead a factfinder to find the defendant guilty. (The same would naturally apply to a vast range of other speech that a factfinder could say is really motivated by a desire to distress someone, whether it's speech that's supposedly purposefully distressing to the target because of the target's religion, ethnic identity, sexual orientation, political beliefs, or personal history.)

Nor would this be limited to speech that is communicated directly to the unwilling recipient rather than to the public — as in traditional telephone harassment, which I think can be restricted, much as the mailing of unwanted letters to a person can be restricted, or persistent unwanted personal contacts can be restricted. This also includes speech said to the public at large, speech that might well reach willing and interested recipients who might be persuaded, enlightened, or cautioned by it.

Plus recall that, if punishment of such speech is allowed in criminal cases, it would also be allowed in civil cases and administrative cases, where the safeguards of proof beyond a reasonable doubt and criminal jury unanimity (the latter required in all but two states) won't be present. The factfinder could be a university administrator, who punishes political or religious commentary on the grounds that he, the factfinder, can divine the speaker's true purpose, and that the true purpose is to substantially distress some classmates (or faculty members or administrators).

I understand why the court resolved the matter on purely statutory grounds: The general rule is that courts ought to reverse a conviction on statutory grounds if the conviction is unsupported by a proper construction of the statute, and thus make it unnecessary to reach the constitutional question. But the decision does highlight the potential threat to free speech from statutes such as this one.

Finally, let me close with the separate concurrence from Judge Painter, which I agree with (except to the extent it suggests that an annoying posting "might well be a civil wrong" simply because it serves no legitimate purpose and is intended to alarm or cause substantial emotional distress, even when it's true or is pure opinion):

It is a scary thought that someone could go to jail for posting a comment on the Internet. If so, we could not build jails fast enough.

The statute on telecommunications harassment is the successor to the former telephone-harassment law. It is designed to prohibit harassing or threatening calls. Of course the calls may now be made over a traditional phone line, a cellular phone, or the Internet. But posting an annoying — but nonthreatening — comment on a website is not a crime under this statute. It might well be a civil wrong, but it is not jailable. The First Amendment would not allow punishment for making a nonthreatening comment on the Internet, just as it would not for writing a newspaper article, posting a sign, or speaking on the radio.

The man administering the $700 billion financial bailout is Neel Kashkari.

Thanks to my colleague Gary Blasi for the tip.

I asked this question earlier this year (stressing that it's just a question and not an answer):

Say that we consider largely removing limits on immigration, as I've heard some people suggest, and as was indeed the law throughout much of the nation's history. (Let's set aside narrow limits, such as on people with criminal records, terrorist connections, or easily communicable diseases.) Say also that we will offer these now largely legal immigrants those social welfare benefits that are in fact politically likely — not the bare minimum that some libertarians might like, nor the vast amount that some welfare-state proponents might suggest, but those benefits that are likely: Public education for their children, emergency health care, whatever nonemergency health care is likely to be broadly offered under either current health subsidy plans or under whatever plans are likely in the future, and the like.

Say also that we maintain the traditional liberties that we have long offered legal immigrants, such as the right to settle wherever they want (which likely means where they can find relatives, people from their home country, and jobs), rather than requiring them to stick to (say) South Dakota and avoid already crowded places like New York City or Southern California. And say that we likewise maintain the various traditional restraints that are in fact unlikely to be politically changed, such as imperfectly enforced minimum wage laws, imperfectly enforced tax laws, imperfectly enforced housing laws, and the like.

Of the world population of 6 billion, how many people are likely to want to come to the U.S., and stay for the indefinite future, under this model? Ten million? One hundred million? More? Less? Is it even possible to estimate this? Relatedly, if one goal of allowing broader immigration would be to avoid the problems caused by illegal immigration, would capping the limit at some number (2 million per year? 5 million per year?) dramatically decrease illegal immigration by offering the prospect of legal immigration to those who stand in line? Or would it increase illegal immigration, as people see more of their acquaintances and family members living in the U.S., and thus conclude that moving here illegally would be easier and less painful than it once was?

I understandably didn't see much of an answer in the comments, though some were quite helpful. Now the Reader's Digest reports on the results of a poll, which asked people in other countries, among other things, whether they "would be interested in moving to America if economic and political barriers were non-existent." (That's just the Digest's paraphrase, I should stress; please let me know if you know the exact text of the question, and more broadly whatever else you may know about the survey, since I recognize it might well be flawed.) The Digest gives answers for 17 countries, but let me just give the biggest one, India: 73%.

Now I strongly suspect that Indian immigrants to the U.S. have given the country a great detail, and that the country is on balance better for letting them in (as I hope is the case about Russian Empire immigrants like me). But, let me say again: 73%. Of over a billion people.

Naturally, economic barriers would never be nonexistent. But say that political barriers were removed, and only 10% of those people would actually come. That would be 80 million new Americans, quite likely in the span of only a few years. And that's just from India. Where would they all go? What freeways would they drive on?

So let me ask a slightly different question than I asked before. Say that you support dramatically easing restrictions on immigration, whether it's on libertarian grounds, liberal humanitarian grounds, or whatever other grounds. Say that we take for granted the assumption that legal immigrants will be entitled to at least some public benefits, such as public education, emergency health care, whatever nonemergency health care is likely to be broadly offered under either current health subsidy plans or under whatever plans are likely in the future, and the like. And say that we maintain the traditional liberties that we have long offered legal immigrants, such as the right to settle wherever they want (which likely means where they can find relatives, people from their home country, and jobs), rather than requiring them to stick to (say) South Dakota and avoid already crowded places like New York City or Southern California.

Would you have no immigration caps at all? If you would, how would you make the caps work?