Many universities ban firearms, but some research I've been doing reveals that some universities ban firearms and stun guns and chemical defensive sprays, either in dorm rooms or in the university as a whole. This basically leaves students entirely without any defensive weapons, and also has the effect of disarming dorm residents when they go off campus property, since they have no place to store the defensive weapons when they're back on campus.

This strikes me as quite shocking, especially with regard to women students who are in the age range where the danger of rape is at its highest. The university basically leaves them as sitting ducks, unless they're willing to violate the university policy. Even if the university tries to compensate by offering a good deal of on-campus policing (some do and some don't), it surely can't protect the students when they leave campus.

Some of the universities I've found that do this are Cornell, Duke, NYU, Hofstra, University of Massachusetts-Dartmouth (though perhaps only limited to "carrying" rather than possessing in a dorm room), Bridgewater State College (likewise possibly limited to "carrying"), and University of Maryland-University College, but there are many more. Here is the explanation from Cornell for its ban (Cornell confirms that the policy remains in place today):

[P]epper spray still falls within Campus Code of Conduct language which makes it a violation to "possess, carry, or use firearms, ... ammunition, explosives, or other dangerous weapons, instruments, or substances in or upon University premises." Even though a person might possess a permit to carry a gun in the city of Ithaca, that person is not permitted to carry the gun at Cornell. Similarly, even though New York state law permits the carrying of pepper spray within the state in general, carrying this substance is not permitted on the Cornell campus.

Some people in the community may feel that this reading of the Campus Code of Conduct denies them a legitimate means of protection. While pepper spray can provide a means of protection, certain other facts indicate its limitations. Those facts include:

• Pepper spray canisters are unreliable in cold weather.

• If sprayed into the wind, the effects intended for the assailant can instead affect the victim, rendering the victim even more helpless than she or he was originally.

• Pepper spray may be lethal to those with asthma or other respiratory problems.

• Use of pepper spray for any purpose other than self-defense (for example, as a prank) — or use of the spray against a police officer — constitutes a criminal offense. Even lawful use of pepper spray may result in legal action against the user if a medical emergency results.

One of the biggest concerns is that people will place unjustified reliance on pepper spray and will forget other safety precautions that may provide even greater security. Those precautions include:

• Walk in well-lit areas with a friend.

• Keep car keys accessible at all times.

• If you must walk alone, walk with a strong, confident stance.

• Carry a whistle, and use it or yell if confronted or attacked.

• Educate yourself on self-defense techniques.

Lovely: You might overrely on pepper spray, and you might misuse it (though of course people can misuse "self-defense techniques" as well). So we won't let you have any defensive weapons at all, and instead suggest — as our first suggestion — that you instead limit where you go, and ask for protection from others (whether by walking with them or yelling for help).

In Massachusetts, by the way, the state bill of rights begins with, "All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties ...." I know of no caselaw on the subject there, but there are many court decisions in other states interpreting such constitutional provisions as in fact securing an individual right. What happens to the right to defend life and liberty of students at Bridgewater and University of Massachusetts-Dartmouth students? It's reduced to (in the words of the Bridgewater policy) the right to "stay aware of their surroundings and perhaps even learn self-defense."

UPDATE: I originally noted that the Cornell explanation was of 1997, and I wasn't sure whether the Cornell pepper spray ban was still in effect — I e-mailed the Cornell people about it, and they've confirmed that it is indeed in effect. I've updated the post accordingly.

In this post and the two that surround it on this chain, I continue blogging excerpts from my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, which is forthcoming in a few months from the UCLA Law Review. But I particularly focus on analogies between the right to keep and bear arms and other constitutional rights, when it comes to waiting periods, taxes and fees, and government tracking regulations. Such analogies are often drawn, but usually between the right to bear arms and just one other right. I try to avoid cherry-picking my favorite rights to compare with, and instead look to how courts have dealt with similar questions as to a wide range of rights, including free speech, voting, abortion, and property rights.

The article is quite long, so I thought I’d just blog some excerpts; if you’re interested in the broader framework the article discusses (a framework that separates the inquiry into the scope of the right based on its text, original meaning, and history, the burden that the restriction imposes on the right, the reducing-danger arguments for the restriction, and the government’s proprietary role [if that’s present]), please follow the link. Also, please remember: Not all unwise laws are unconstitutional laws, even where constitutional rights are potentially involved.

Government tracking regulations -- nondiscretionary licensing regimes either for possession or carrying, instant background checks, registration requirements, serial number requirements, requirements that guns be test-fired and the marks they leave on bullets recorded, or requirements that all new semiautomatic guns must “microstamp” the ejected brass with the gun’s serial number -- generally don’t by themselves substantially burden self-defense. If the regulations contain some restrictions, such as waiting periods, fees, or denials of licenses to certain people (either as a class or in government officials’ discretion), those might be substantial burdens. But the tracking regulation itself is not much of a burden on self-defense: A person is just as free to defend himself with a registered gun as he would be if the gun were unregistered.

In one high-profile constitutional law area, such requirements are indeed forbidden: Most speakers don’t need to get licenses, or register their speech, or submit their typewriters for testing so that their anonymous works can be tracked back to them. Likewise, tracking requirements for abortions would likely be unconstitutional.

But this is not the normal rule for constitutional rights. Even speakers may sometimes need to register or get licensed. Parade organizers may be required to get permits. Ballot signature gatherers may be required to register with the government, and so may fundraisers for charitable causes, though such fundraising is constitutionally protected. People who contribute more than a certain amount of money to a candidate may be required to disclose their identities to the candidate, who must in turn disclose those identities to the government; lower courts have held the same as to people who contribute to committees that support or oppose ballot measures. The contribution disclosure requirements have been judged (and upheld) under a moderately strong form of heightened scrutiny; the other disclosure requirements have been upheld even without strict scrutiny.

Likewise, the Constitution has been interpreted to secure a right to marry, but the government may require that people get a marriage license. The Takings Clause bars the government from requiring people to leave their land unimproved and thus valueless, but the government may require a building permit before improvements are made.

People have a right to vote, under all state constitutions and, in practice, under the federal Constitution, but they may be required to register to vote. Whom they voted for has been kept secret, at least for a hundred years, but whether they voted and what party they belong to is known to the government, and is often even a matter of public record. Many of these requirements are instituted to prevent crime (chiefly fraud) or injury (such as the injury stemming from unsafe construction).

This of course leaves the question of what the right to bear arms is most like: those rights for which government tracking can’t be required, or those rights for which it can be. I’m inclined to think that it is more like the trackable rights, and that it is the untrackable rights that are the constitutional outlier.

The rule barring licensing requirements for many kinds of speakers is in large part historical, stemming from an era when such licenses were discretionary and used to control which viewpoints may be expressed. It persists largely because of a continuing concern that some viewpoints may be so unpopular with the government or the public that people who are known to convey those viewpoints will face retaliation. Even so, some kinds of speakers may have to identify themselves to the government, when the speech poses serious concerns about fraud or corruption. The same worry about retaliation, coupled with a longstanding tradition of privacy of medical records, likely provides the cause for the no tracking rule for abortions.

Gun owners as a group have faced some hostility from the government and the public, but gun ownership is very common behavior, and there’s safety in numbers: It seems unlikely that the government will retaliate against the tens of millions of gun owners in the country, who represent 35 percent to 45 percent of all American households. Gun carrying is both rarer and, if required to be done openly, more likely to viscerally worry observers. But mere gun ownership, if disclosed to the government rather than to the public at large, is not likely to yield a harsh government reaction, and registration requirements are thus unlikely to deter ownership by the law-abiding. (I set aside the question whether making gun ownership or concealed carry license records public under state open records acts might be unconstitutional.)

It’s true that certain kinds of guns are rare and especially unpopular. But as I’ve argued above, the right to bear arms in self-defense should be understood as protecting a right to own some arms that amply provide for self-defense, not a right to own any particular brand or design of gun. (In this respect, it differs from the right to speak, which includes the right to convey the particular viewpoint one wishes to convey. Many kinds of arms are fungible for self-defense purposes in a way that viewpoints are not fungible for free speech purposes.)

It is not impossible that the government will want to go after gun owners, chiefly to confiscate their guns. This could happen if the government shifts to authoritarianism, and thus doesn’t care about constitutional constraints and at the same time wants to seize guns in order to diminish the risk of violent resistance. Or it could happen if a future Supreme Court concludes the individual right to bear arms is not constitutionally protected, and Congress enacts a comprehensive gun ban. Some have argued that the Free Speech Clause ought to be interpreted from a “pathological perspective,” with an eye towards creating a doctrine that would serve free speech best even in those times when the public, the government, and the courts are most hostile to unpopular speakers. Should the Second Amendment be interpreted the same way?

Here we may be getting to a topic that’s outside the scope of this Article, because it requires us to think about whether the Second Amendment retains a deterrence-of-government-tyranny component as well as a self-defense component. I’m inclined to be skeptical of the ability of either constitutional doctrine or private gun ownership to constrain the government in truly pathological times. I’d like to think that either or both would provide a material barrier to such pathologies, but I doubt that this would in fact be so, especially given the size and power of modern national government. Nonetheless, figuring this out requires thinking through the deterrence-of-government-tyranny rationale, something I have not done for this Article.

For now, I’ll leave things at this: The tracking requirements likely don’t themselves impose a substantial burden on the right today. Such tracking requirements aren’t generally unconstitutional as to other rights, though they are sometimes unconstitutional as to some rights. And the key question is the extent to which current doctrine should be crafted with an eye towards a future time when the doctrine or government practice may be very different than it is today.

I had blogged about the lower court decision here; the appellate decision is here, in French -- if anyone can translate whatever seem to be the key portions, I'd be much obliged. In the meantime, here's a CBC news account:

A Quebec father who was taken to court by his 12-year-old daughter after he grounded her in June 2008 has lost his appeal.

Quebec Superior Court rejected the Gatineau father's appeal of a lower court ruling that said his punishment was too severe for the wrongs he said his daughter committed....

In its ruling, issued Monday, the province's court of appeal declared the girl was caught up in a "very rare" set of circumstances, and her father didn't have sufficient grounds to contest the court's earlier decision....

[The daughter] had been living with her father after her parents split up when he grounded her in 2008 for defying his order to stay off the internet. The father caught her chatting on websites he had blocked, and alleged his daughter was posting "inappropriate pictures" of herself online.

Her punishment: she was banned from her Grade 6 graduation trip to Quebec City in June 2008, for which her mother had already granted permission.

The father — who had custody — withheld his written permission for the trip, prompting the school to refuse to let the girl go with her classmates.

That's when the girl asked for help from the lawyer who represented her in her parents' separation, and petitioned the court to intervene in her case....

The girl — who now lives with her mother — doesn't have much of a relationship with her dad now ....

Thanks to Ken at Popehat for the pointer.

From the Denver Post:

Kelley Coffman-Lee's plan to advertise her love of tofu on a license plate ran afoul of censors at the Division of Motor Vehicles.

The 38-year-old mother of three asked the DMV to approve a special plate emblazoned with "ILVTOFU" for her Suzuki SL-7....

The agency turned down the request, saying the plate might be offensive to some people....

It turns out that "FU" is on a long list of letter combinations barred by the division, said Mark Couch, spokesman for the Department of Revenue. Think of it as "Eff you," he said.

Thanks to How Appealing for the pointer.

In this post and the two that surround it on this chain, I continue blogging excerpts from my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, which is forthcoming in a few months from the UCLA Law Review. But I particularly focus on analogies between the right to keep and bear arms and other constitutional rights, when it comes to waiting periods, taxes and fees, and government tracking regulations. Such analogies are often drawn, but usually between the right to bear arms and just one other right. I try to avoid cherry-picking my favorite rights to compare with, and instead look to how courts have dealt with similar questions as to a wide range of rights, including free speech, voting, abortion, and property rights.

The article is quite long, so I thought I’d just blog some excerpts; if you’re interested in the broader framework the article discusses (a framework that separates the inquiry into the scope of the right based on its text, original meaning, and history, the burden that the restriction imposes on the right, the reducing-danger arguments for the restriction, and the government’s proprietary role [if that’s present]), please follow the link. Also, please remember: Not all unwise laws are unconstitutional laws, even where constitutional rights are potentially involved.

Taxes on guns and ammunition, or gun controls that raise the price of guns and ammunition, would be substantial burdens if they materially raised the cost of armed self-defense. A $600 tax proposed by Cook, Ludwig & Samaha [in another article in the same symposium for which my article was written -EV], justified by an assertion that “keeping a handgun in the home is associated with at least $600 per year in externalities,” is one such example. “The poorly financed [self-defense] of little people,” like their “poorly financed causes,” deserves constitutional protection as much as the self-defense of those who can afford technologically sophisticated new devices or high new taxes. (See Martin v. City of Struthers, 319 U.S. 141, 146 (1943) (striking down ban on door-to-door solicitation, partly on the grounds that “[d]oor to door distribution of circulars is essential to the poorly financed causes of little people”); see also City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) (striking down ban on display of signs at one’s home, partly on the grounds that “[r]esidential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute.”).) This is true whether the tax or expensive control is imposed on gun owners directly, or on gun sellers or manufacturers, just as a restriction on abortion can be a substantial burden even if it’s imposed on doctors and not on the women who are getting the abortions.

High gun taxes should remain presumptively impermissible even if they are based on some (doubtless controversially calculated) estimate of the public costs imposed by the average handgun: The average takes into account both the very low cost stemming from guns that are always properly used by their owners, and the very high cost stemming from guns that are used in crime. The law-abiding owners thus are not just being required to “internalize the full social costs of their choices,” even if you take into account as a “cost” the possibility that any gun will be stolen by a criminal. They are also being required to internalize the social costs of choices made by criminal users of other guns -- much as if, for instance, all speakers were charged a tax that would be used to compensate those libeled by a small subset of speakers.

Nonetheless, some modest taxes might not amount to substantial burdens, as a review of taxes and fees on other constitutional rights illustrates. Taxes based on the content of speech are unconstitutional, regardless of their magnitude. But this is a special case of the principle that discrimination based on certain kinds of characteristics -- race, sex, religiosity, or the content or viewpoint of speech -- is unconstitutional. Setting aside these special areas of constitutionally forbidden discrimination, and setting aside poll taxes, which were constitutional until the Twenty-Fourth Amendment forbade them, other kinds of taxes, fees, and indirect costs imposed on the exercise of constitutional rights are often permissible.

The government may require modest content-neutral fees for demonstration permits or charitable fundraising permits, at least if the fees are tailored to defraying the costs of administering constitutionally permissible regulatory regimes. The same is true for marriage license fees and filing fees for political candidates (though the Court has held that the right to run for office is protected by the First Amendment). The same is doubtless true of costs involved in getting permits to build on your own property, a right protected by the Takings Clause.

Likewise, regulations of the right to abortion are not rendered unconstitutional simply because they increase the cost of an abortion. The Court so held when upholding a 24-hour waiting period even though it required some women in states with very few abortion providers to stay in a hotel overnight or miss a day of work, and when upholding viability testing requirements that might have marginally increased the cost of an abortion. So long as the extra costs don’t amount to “substantial obstacle[s]” to a woman’s getting an abortion, they are constitutional.

At the same time, when a cost is high enough to impose a substantial obstacle to the exercise of a right for a considerable number of people, it is unconstitutional. This is likely also true when a cost goes materially beyond the cost of administering the otherwise permissible regulatory scheme, as several federal circuit court cases hold and some U.S. Supreme Court cases suggest. And if a law substantially burdens rightholders who are relatively poor, an exemption would likely be constitutionally required, as it has been with regard to permit fees for speakers and candidates.

I acknowledge that any such regime necessarily creates linedrawing problems and poses the danger that a genuinely substantial burden will be missed by judges who are deciding how much is too much. But, first, there is ample precedent for such tolerance for modest fees in other constitutional rights contexts, and it seems neither likely nor normatively appealing for the courts to conclude that the right to bear arms is more protected than these other rights. Second, the caselaw from those other areas can provide guideposts for the linedrawing process. And third, the caselaw from those other areas (as well as the general logic of the substantial burden threshold) can provide justification for a constitutional requirement that poor applicants be exempted from fees -- say, fees that dramatically increase the cost of a new gun, or that are required for periodic reregistration of an old gun -- that are substantial for them even if relatively minor for others.

The Plum Line, Greg Sargent's blog on the Washington Post's whorunsgov.com, reports:

Some of the leading liberal bloggers are privately furious with the major progressive groups — and in some cases, the Democratic Party committees — for failing to spend money advertising on their sites, even as these groups constantly ask the bloggers for free assistance in driving their message.

The post then goes on to give more details, including this quote from a blogger: “They come to us, expecting us to give them free publicity, and we do, but it’s not a two way street. They won’t do anything in return. They’re not advertising with us. They’re not offering fellowships. They’re not doing anything to help financially, and people are growing increasingly resentful.”

I haven't thought hard about this subject; and I realize that it's easy for me to be cavalier about advertising revenue, since my academic day job lets me blog without worrying about ad income. But still I wonder whether it's quite right for authors who publish their own opinion and news commentary to demand a "two way street" in which the authors get advertising money from the people they praise.

Now some amount of blogger commentary about people who pay them money is likely inevitable. Many bloggers work at think tanks, and they may report on their employer's work product, thus helping promote the employer. I'm a part-part-part-time Academic Affiliate with the Mayer Brown LLP firm, and I occasionally blog about Mayer's cases. That, I think, can generally be dealt with by notes explaining the possible conflict of interest. (For instance, I always note, when I blog about a case that I know to be one of Mayer's, that I have an affiliation with Mayer.)

But if an ostensibly independent blogger has a general pattern of demanding advertising — even indirectly, rather than in some personal communication — from institutions in exchange for publicizing the institutions' work, that sort of relationship strike me as harder to disclose in any transparent way. And my sense is that historically this sort of deal has been seen as not entirely kosher in the newspaper business, or for that matter in the opinion magazine business. Naturally, readers expect that an opinion magazine would have editorial biases. But I don't think they expect that the opinion magazine would be making advertising dollars from positive coverage (or "free publicity") that it provides to various organizations.

On the other hand, perhaps a different model is needed for small blogs that may need advertising income to stay afloat; or perhaps some reasonable disclosure system would suffice to take care of any possible problems here; or perhaps I'm missing something, and there really aren't likely to be any problems. I just wanted to tentatively express my thoughts on the subject, and hear our readers' thoughts in return.

Prof. Howard Friedman's Religion Clause -- the best news source I've seen for religion-and-the-law matters (both American and foreign) writes:

Passover begins tonight, and in Israel the dispute continues over how to interpret its Festival of Matzot (Prohibition of Leaven) Law, 5746-1986, (also known as the "Hametz Law"). Last year, a court held that its ban on the public display any leavened product for sale or consumption during Passover did not prevent the sale in a closed place of business of leavened products. (See prior posting.) The Haredi (ultra-Orthodox) community is still distressed over the ruling. This week, according to Arutz Sheva, to protest the interpretation, yeshiva student Aryeh Yerushalmi entered a Tel Aviv grocery store, went to the bread section, and stripped naked (except for a sock over his private parts). He says Israeli law bans performing an indecent act in a public place, but if a grocery store is not "public" for purposes of the Hametz Law, its should not be for the indecent exposure law either. When police arrived at the scene, the student put his clothes back on. A Tel Aviv district court judge put Yerushalmi under house arrest for a week.

For more links -- and more interesting posts on other topics -- go to the post linked to above, or to the blog generally.

Mat Staver of Liberty Counsel writes, apropos my post yesterday about the misuse of the word "tyranny":

Eugene,

I corrected the statement in my release yesterday which you have on your blog. The last sentence was meant to say: “The consequences will rest on their shoulders and upon those passive objectors who know what to do but who lack the political courage to do what is right for the common good of the people.” It was done in a rush and after reading it I rewrote it.

Good catch!

Mat Staver

I'm very pleased to see the correction.

In this post and the next two on this chain, I continue blogging excerpts from my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, which is forthcoming in a few months from the UCLA Law Review. But I particularly focus on analogies between the right to keep and bear arms and other constitutional rights, when it comes to waiting periods, taxes and fees, and government tracking regulations. Such analogies are often drawn, but usually between the right to bear arms and just one other right. I try to avoid cherry-picking my favorite rights to compare with, and instead look to how courts have dealt with similar questions as to a wide range of rights, including free speech, voting, abortion, and property rights.

As I had mentioned, the article is quite long, so I thought I’d just blog some excerpts; if you’re interested in the broader framework the article discusses (a framework that separates the inquiry into the scope of the right based on its text, original meaning, and history, the burden that the restriction imposes on the right, the reducing-danger arguments for the restriction, and the government’s proprietary role [if that’s present]), please follow the link. Also, please remember: Not all unwise laws are unconstitutional laws, even where constitutional rights are potentially involved.

Some jurisdictions require a “cooling-off” period before a gun may be delivered to the purchaser. Others apply this only to handguns. The rationale for such laws is to prevent impulsive killings or suicides by people who are angry or despondent and who might calm down after a few days.

It’s hard to see how handgun-only cooling-off periods will materially reduce danger of impulsive crime or injury. It’s as easy to commit suicide with a shotgun as with a handgun, and for a crime of passion a shotgun will often be equally effective, too. Though it’s not as concealable as a handgun, and thus is worse for daily carrying or for inconspicuously hanging around waiting for passersby to rob, it should be quite sufficient for a crime of passion, where it can be concealed briefly under a coat or in a bag. All-gun waiting periods might in principle be effective, if the buyer is an otherwise law-abiding citizen who wouldn’t just turn to the black market instead. But even that has not been proven: As with so many “reducing danger” arguments, the social science evidence on the effectiveness of cooling-off periods is inconclusive.

At least one state, Maryland, requires an extra background check before a gun can be picked up, and imposes a seven-day waiting period for that reason. The federal background check is generally instant, but can take several days to complete if someone with the same name as the applicant is on the prohibited list.

Finally, Illinois, Massachusetts, New Jersey, New York, and North Carolina apparently require up to a month, or in New York’s case up to six months, for a handgun purchase permit (or, in New Jersey, any firearm purchase permit) to be cleared. Other states require from two to fifteen days.

Are these waiting periods substantial burdens on self-defense (and therefore, under the framework my article proposes, presumptively unconstitutional)? In one way, they are: A person covered by the waiting period is entirely unable to defend himself for days, weeks, or (in New York) months. An attack that requires self-defense can happen during the waiting period just as easily as it can happen during other times.

Moreover, in some situations, the attack may be especially likely during the waiting period: A person’s attempt to buy a gun may be prompted by a specific threat, a threat which could turn into an actual attack in a matter of days or hours. If a woman leaves an abusive husband or boyfriend, who threatens to kill her for leaving, she may need a gun right away, not 10 days later or 6 months later.

On the other hand, it is certainly the case that being disarmed for 0.1 percent of one’s remaining life (that’s what 14 days ends up approximately being, for a person of average age) is less of a burden than being disarmed altogether. And waiting periods have been found to be constitutionally permissible as to other rights.

I can’t offer here a clear answer to whether waiting periods are unconstitutional, but I thought I would at least sketch out the analogy to other rights. The Supreme Court has upheld -- over heated dissent -- a 24-hour waiting period for abortions, justified by much the same cooling-off concerns mentioned above. A short-lived Ninth Circuit decision that recognized a right to assisted suicide said that “reasonable, though short, waiting periods to prevent rash decisions” would be constitutional, and the Oregon assisted suicide statute indeed provides a 15-day waiting period. A waiting period is often required for sterilization, though there might well be a constitutional right to undergo sterilization as part of one’s right to control one’s procreation. In many states it takes from one to five days to get a marriage license, though I know of no cases considering whether this violates the right to marry. On the other hand, there are limits: Even where prisoners and military members are involved -- a context where the government generally has very broad authority -- lower courts have struck down six-month and one-year waiting periods before a soldier or an inmate may marry.

The Supreme Court has also held that a state may require people to register to vote fifty days before the election, for much the same investigatory reasons that are offered for some background-check-based waiting periods. Cities are generally allowed to require that demonstration and parade permit applications be filed some days in advance, though lower courts have suggested the upper bound might be three or four days. Lower courts have also suggested that permit requirements would be impermissible for groups of a few people, who don’t materially implicate the city’s interests in traffic control or adequate policing.

And lower courts have also suggested that even if some substantial advance notice may normally be required for demonstration permits, there has to be a special exception for spontaneous expression occasioned by breaking events. This would suggest that a similar exception might have to be required for handgun permits when the applicant can point to a specific, recently occurring threat -- such as the applicant’s leaving an abusive boyfriend who threatened to kill her if she left. (Cf., e.g., Fla. Stat. Ann. § 790.33(2)(d)(6) (West 2007) (exempting from the waiting period, which would normally be up to 3 days, “[a]ny individual who has been threatened or whose family has been threatened with death or bodily injury, provided the individual may lawfully possess a firearm and provided such threat has been duly reported to local law enforcement”); Minn. Stat. Ann. § 624.7132 subdiv. 4 (West 2003) (providing that “the chief of police or sheriff may waive all or a portion of the five business day waiting period in writing if the chief of police or sheriff finds that the transferee requires access to a pistol or semiautomatic military-style assault weapon because of a threat to the life of the transferee or of any member of the household of the transferee”); Ohio Rev. Code Ann. § 2923.1213 (providing for temporary emergency license to carry a concealed weapon when the applicant provides a sworn statement “that the [applicant] has reasonable cause to fear a criminal attack upon the person or a member of the person’s family, such as would justify a prudent person in going armed,” or other evidence of such a threat); cf. 18 U.S.C. § 922(s)(1)(B) (exempting transferees from the waiting period for gun purchases if they stated that they “require[ ] access to a handgun because of a threat to the life of the transferee or any member of the households of the transferee”; this was in effect during the pre-instant-background check era, see 18 U.S.C. § 922(t)).)

These other constitutional rights are not perfect analogies. A three-day delay in voting, marrying, or demonstrating won’t leave you unprotected against a deadly attack. Conversely, erroneously authorizing someone to vote when he’s a convicted felon is less likely to cause serious harm than erroneously authorizing someone to buy a gun when he’s a convicted felon but the instant background check has yielded an inconclusive result. Nonetheless, this catalog of decisions at least suggests that (1) waiting periods on the exercise of constitutional rights need not always be seen as unconstitutional, and (2) courts are and should be willing to decide which waiting periods are excessive.

the U.S. Court of Appeals for the Third Circuit just held in Webb v. City of Philadelphia (some paragraph breaks added):

[Kimberlie] Webb requested permission from her commanding officer to wear a headscarf while in uniform and on duty. The headscarf (a khimar or hijaab) is a traditional headcovering worn by Muslim women. Webb’s headscarf would cover neither her face nor her ears, but would cover her head and the back of her neck. Her request was denied in view of Philadelphia Police Department Directive 78, the authoritative memorandum which prescribes the approved Philadelphia police uniforms and equipment. Nothing in Directive 78 authorizes the wearing of religious symbols or garb as part of the uniform....

Title VII of the 1964 Civil Rights Act prohibits employers from discharging or disciplining an employee based on his or her religion. “Religion” is defined as “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s ... religious observance or practice without undue hardship on the conduct of the employer’s business.” To establish a prima facie case of religious discrimination [on this "religious accommodation" theory -EV], the employee must show: (1) she holds a sincere religious belief that conflicts with a job requirement; (2) she informed her employer of the conflict; and (3) she was disciplined for failing to comply with the conflicting requirement.

Once all factors are established, the burden shifts to the employer to show either it made a good-faith effort to reasonably accommodate the religious belief, or such an accommodation would work an undue hardship upon the employer and its business.... An accommodation constitutes an “undue hardship” if it would impose more than a de minimis cost on the employer. Both economic and non-economic costs can pose an undue hardship upon employers; the latter category includes, for example, violations of the seniority provision of a collective bargaining agreement and the threat of possible criminal sanctions.

In the City’s view, at stake is the police department’s impartiality, or more precisely, the perception of its impartiality by citizens of all races and religions whom the police are charged to serve and protect. If not for the strict enforcement of Directive 78, the City contends, the essential values of impartiality, religious neutrality, uniformity, and the subordination of personal preference would be severely damaged to the detriment of the proper functioning of the police department. In the words of Police Commissioner Sylvester Johnson, uniformity “encourages the subordination of personal preferences in favor of the overall policing mission” and conveys “a sense of authority and competence to other officers inside the Department, as well as to the general public.”

Commissioner Johnson identified and articulated the police department’s religious neutrality (or the appearance of neutrality) as vital in both dealing with the public and working together cooperatively. “In sum, in my professional judgment and experience, it is critically important to promote the image of a disciplined, identifiable and impartial police force by maintaining the Philadelphia Police Department uniform as a symbol of neutral government authority, free from expressions of personal religion, bent or bias.” Commissioner Johnson’s testimony was not contradicted or challenged by Webb at any stage in the proceedings....

As a para-military entity, the Philadelphia Police Department requires “a disciplined rank and file for efficient conduct of its affairs.” Commissioner Johnson’s thorough and uncontradicted reasons for refusing accommodations are sufficient to meet the more than de minimis cost of an undue burden.

For more details, including how the court dealt with various relevant precedents, both from the Supreme Court and from other circuits that had confronted similar problems, have a look at the opinion, which is pretty readable and not too long.

Thanks to Joel Sogol for the pointer.

Well, let's listen to Yale Law School Dean Harold Koh, now nominated to be the Legal Advisor to the State Department, in his On American Exceptionalism, 55 Stan. L. Rev. 1479 (2003):

By distinctiveness, I mean that America has a distinctive rights culture, growing out of its peculiar social, political, and economic history. Because of that history, some human rights, such as the norm of nondiscrimination based on race or First Amendment protections for speech and religion, have received far greater emphasis and judicial protection in America than in Europe or Asia. So, for example, the U.S. First Amendment is far more protective than other countries' laws of hate speech, libel, commercial speech, and publication of national security information. But is this distinctive rights culture, rooted in our American tradition, fundamentally inconsistent with universal human rights values? On examination, I do not find this distinctiveness too deeply unsettling to world order. The judicial doctrine of “margin of appreciation,” familiar in European Union law, permits sufficient national variance as to promote tolerance of some measure of this kind of rights distinctiveness.

Good to hear that American free speech tradition isn't "too deeply unsettling to world order." But wait -- check out the footnote following this paragraph:

See generally Louis Henkin, Gerald L. Neuman, Diane F. Orentlicher & David W. Leebron, Human Rights 564 (1999). Admittedly, in a globalizing world, our exceptional free speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet. In my view, however, our Supreme Court can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation discussed infra Part III.C.

And what is this "transnationalist approach" that can help "moderate these conflicts" caused by American constitutional protection for "hate speech ... disseminated over the Internet"? Here are the opening paragraphs of the discussion of "the transnationalist approach" is Part III.C:

What is transnational legal process? While most legal scholars agree that most nations obey most rules of international law most of the time, they disagree dramatically as to why they do so. As I have explained elsewhere, I believe that nations obey international law for a variety of reasons: power, self-interest, liberal theories, communitarian theories, and what I call “legal process” theories. While all of these approaches contribute to compliance with international law, the most overlooked determinant of compliance is what I call “vertical process”: when international law norms are internalized into domestic legal systems through a variety of legal, political, and social channels and obeyed as domestic law. In the international realm, as in the domestic realm, most compliance with law comes from obedience, or norm-internalization, the process by which domestic legal systems incorporate international rules into domestic law or norms.

Under this view, the key to understanding whether nations will obey international law, I have argued, is transnational legal process: the process by which public and private actors -- namely, nation states, corporations, international organizations, and nongovernmental organizations -- interact in a variety of fora to make, interpret, enforce, and ultimately internalize rules of international law. The key elements of this approach are interaction, interpretation, and internalization. Those seeking to create and embed certain human rights principles into international and domestic law should trigger transnational interactions, that generate legal interpretations, that can in turn be internalized into the domestic law of even resistant nation states.

In my view, “transnational legal process” is not simply an academic explanation of why nations do or do not comply with international law, but, more fundamentally, a bridging exercise between the worlds of international legal theory and practice. My time in government confirmed what I had suspected as a professor -- that too often, in the world of policymaking, those with ideas have no influence, while those with influence have no ideas. Decisionmakers react to crises, often without any theory of what they are trying to accomplish, and without time to consult academic literature, which, even when consulted, turns out to be so abstract and impenetrable that it cannot be applied to the problem at hand. On the other hand, activists too often agitate without a clear strategy regarding what pressure points they are trying to push or why they are trying to push them. Scholars have ideas, but often lack practical understanding of how to make them useful to either decisionmakers or activists.

And so it is with American exceptionalism. Like so many aspects of international relations, this phenomenon has generated a tragic triangle: Decisionmakers promote policy without theory; activists implement tactics without strategy; and scholars generate ideas without influence. If transnational legal process is to bridge this triangle, how can we use that concept to press our government to preserve its capacity for positive exceptionalism by avoiding the most negative features of American exceptionalism? Let me illustrate my approach with respect to three examples from the September 11 context: first, America and the global justice system; second, the rights of 9/11 detainees; and third, America's use of force in Iraq....

Maybe I'm missing something -- Prof. Koh's discussion of just how the Court can "moderate ... conflicts" between First Amendment law and foreign countries that disapprove of American free speech on the Internet is rather vague here. But it sounds to me quite a bit like the predictions that Prof. Peter Spiro, another internationalist legal scholar, made about how international norms could reduce the scope of American constitutional rights: The President and the Senate can, in the long run, "insinuat[e] international law" that would create "a partial displacement of constitutional hegemony" (for instance, with "an international norm against hate speech ... supply[ing] a basis for prohibiting [hate speech], the First Amendment notwithstanding"). "As transnational society develops a common rights culture, one in which the disaggregated United States enjoys a voice, the supremacy of international rights may be normatively sustainable. In the short term, this argues for the relevance of international norms in domestic constitutional interpretation. In the long run, it may point to the Constitution's more complete subordination."

In any case, I thought I'd note this, so you folks can read it and decide for yourselves. Thanks to Ed Whelan (National Review Online) for the pointer.

From Liberty Counsel:

The Vermont Legislature voted to override Governor Jim Douglas’ veto of a bill that permits same-sex couples to marry in Vermont. The state Senate voted 23-5 to override the veto and the House of Representatives voted 100-49 to override. Two-thirds of the Senate and the House votes were necessary.

Vermont was the first state to adopt same-sex civil unions in 2000 and is the first state to legalize same-sex marriage through the legislature.

Mathew D. Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law, commented: “ ... By redefining marriage, the Vermont legislature removed the cornerstone of society and the foundation of government. The consequences will rest on their shoulders and upon those passive objectors who know what to do but lack the courage to stand against this form of tyranny.”

So a democratically elected legislature votes for a law that treats same-sex marriage the same as opposite-sex marriage. The law doesn't restrict the freedom of opposite-sex couples; it just gives same-sex couples the same benefits. Perhaps the law is unwise; perhaps it undermines important social institutions; perhaps it will eventually lead to bad things. I doubt that, but such arguments are at least possible. But "tyranny"? Or has "tyranny" just come to mean "any law I dislike, even if it doesn't restrict anyone's liberty, usurp any power that should belong to democratically elected bodies, or discriminate against anyone"?

UPDATE: Liberty Counsel posts a correction.

I'm planning on posting excerpts from this new article of mine next week or the week after that, and I'll also link to a PDF version. It's forthcoming in the Stanford Law Review in several months, and I wanted to get as much feedback as possible.

But before that, I thought I might ask for a bit of feedback from a narrow class of people: If you read the article as a law review editor a few weeks ago, when I was circulating it for submission, and feel you can pass along any reactions you had, I'd very much like to hear them.

My sense is that there's a lot of evaluative work that's done by articles editors but that's then lost as a source of feedback to authors. That certainly makes sense in the initial submission process; explaining to authors why an article was rejected, or coupling an offer with an explanation of the article's weaknesses, can take up a lot of time and cause a lot of friction. But I thought that if I expressly asked, perhaps some people could feel comfortable passing along their reactions, and those reactions could be helpful to me in improving my piece. I can think of all sorts of eminently legitimate reasons why a journal might not have been interested in the article, but my goal is to find flaws or unnecessary limitations that I haven't thought of myself, but that others have noticed.

Naturally, please don't say anything if you feel that this would compromise internal journal confidences, and if you'd prefer to respond anonymously (to conceal either your name or the name of the journal) or privately to my volokh at law.ucla.edu address, that would be just fine. But I don't see any ethical problems with passing along -- especially anonymously -- your own individual reactions, or the reactions of colleagues who agree to include them. And because this message is posted publicly rather than e-mailed directly to a journal, I don't think you need to worry about setting a work-creating precedent that you'd have to adhere to for dozens of future articles; even if others start posting such requests, you can respond when and only when you are so inclined.

Finally, just to be extra clear: As you might gather, I'm delighted by the offers that I received for the piece, and of course I'm thrilled to be publishing the article where I'm publishing it. And as I noted, I entirely understand why other journals weren't interested in the piece, both for general reasons (there's always a mix of reactions from different people), and for specific ones having to do with this article. My goal is very simple: I just want as much helpful feedback as possible. Many thanks!

I continue blogging excerpts from my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, which is forthcoming in a few months from the UCLA Law Review. The article is quite long, so I thought I’d just blog some excerpts; if you’re interested in the broader framework the article discusses (a framework that separates the inquiry into the scope of the right based on its text, original meaning, and history, the burden that the restriction imposes on the right, the reducing-danger arguments for the restriction, and the government’s proprietary role [if that’s present]), please follow the link. Also, please remember: Not all unwise laws are unconstitutional laws, even where constitutional rights are potentially involved.

Heller stated that bans on concealed carry of firearms are so traditionally recognized that they must be seen as constitutionally permissible. This tradition does indeed go back to 1813 and the following decades, at least in some Southern states, and by the end of the 19th century it had become a pretty broadly accepted proposition. A smattering of state court cases has struck down such bans, but nearly all courts have upheld them, and many state constitutions expressly authorize them.

The same cannot, however, be said about general bans on carrying firearms in public, which prohibit open carrying as well as concealed carrying. Heller expressly concluded that “the right to ... bear arms” referred to carrying arms. Ten state constitutions strongly imply this, by protecting “bear[ing] arms” but expressly excluding “carrying concealed weapons.” (See Colo. Const. art. II, § 13; Idaho Const. art. I, § 11; Ky. Const. § 1; La. Const. art. I, § 11; Miss. Const. art. III, § 12; Mo. Const. art. I, § 23; Mont. Const. art. II, § 12; N.M. Const. art. II, § 6; N.C. Const. art. I, § 30; Okla. Const. art. II, § 26; see also Tenn. Const. art. I, § 26 and Tex. Const. art. I, § 23, authorizing the legislature to “regulate the wearing of arms with a view to prevent crime,” which suggests that “bear[ing] arms” includes “wearing” them, which is to say carrying them in public, though subject to regulations.)

Other constitutions don’t mention carrying as such, but they do use the word “bear.” And many courts applying state constitutional provisions have held or suggested that carrying in public is generally constitutionally protected, at least outside some special places such as businesses that serve liquor, churches, or polling places, though some courts have disagreed.

That's the holding of an unpublished California Court of Appeal opinion in Moreno v. Hanford Sentinel, handed down Thursday:

The issue presented by this appeal is whether an author who posts an article on myspace.com can state a cause of action for ... intentional infliction of emotional distress against a person who submits that article to a newspaper for republication.... Appellants ... argue that the person who submitted the article to the newspaper did so with the intent of punishing appellants ....

[T]he trial court should have overruled the demurrer to the intentional infliction of emotional distress cause of action. Under the circumstances here, a jury should determine whether the alleged conduct was outrageous....

Since the appeal is from the sustaining of a demurrer without leave to amend, the facts are derived from the complaint. This court must give the complaint a reasonable interpretation and assume the truth of all material facts properly pleaded....

Following a visit to her hometown of Coalinga, appellant, Cynthia Moreno, wrote “An ode to Coalinga” (Ode) and posted it in her online journal on myspace.com. The Ode opens with “the older I get, the more I realize how much I despise Coalinga” and then proceeds to make a number of extremely negative comments about Coalinga and its inhabitants. Six days later, Cynthia removed the Ode from her journal. At the time, Cynthia was attending the University of California at Berkeley. However, Cynthia’s parents, appellants David and Maria Moreno, and Cynthia’s sister, appellant Araceli Moreno, were living in Coalinga.

Respondent, Roger Campbell, was the principal of Coalinga High School .... The day after Cynthia removed the Ode from her online journal, appellants learned that Campbell had submitted the Ode to the local newspaper, the Coalinga Record, by giving the Ode to his friend, Pamela Pond. Pond was the editor of the Coalinga Record.

The Ode was published in the Letters to the Editor section of the Coalinga Record. The Ode was attributed to Cynthia, using her full name. Cynthia had not stated her last name in her online journal.

The community reacted violently to the publication of the Ode. Appellants received death threats and a shot was fired at the family home, forcing the family to move out of Coalinga. Due to severe losses, David closed the 20-year-old family business....

The court concludes (correctly) that Moreno and her family can't recover under the "disclosure of private facts" tort. I have argued before that the disclosure of private facts tort is itself unconstitutional; but while California courts (and most other state courts) do recognize the tort, they at least limit it to information that is private, not something that a plaintiff has voluntarily disclosed about himself. Here, "Having been published on myspace.com, the Ode was not private." "That Cynthia removed the Ode from her online journal after six days is also of no consequence. The publication was not so obscure or transient that it was not accessed by others.... Finally, ... [a]lthough her online journal only used the name “Cynthia,” it is clear that her identity was readily ascertainable from her MySpace page ...."

But, despite this, the court said that it was up to the jury to decide whether the principal should still be held liable — potentially for tens or hundreds of thousands of dollars, and presumably potentially including punitive damages as well:

“The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress.”

To be outrageous, conduct must be so extreme that it exceeds all bounds of that usually tolerated in a civilized community. However, conduct that might not otherwise be considered extreme and outrageous may be found to be so if a (1) defendant abuses a relation or position that gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.

It is for the court to determine in the first instance whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.... But, “‘[w]here reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.’” ....

In stating their claim for intentional infliction of emotional distress, appellants alleged that Campbell submitted the Ode to the Coalinga Record, knowing he did not have permission to do so. Appellants further alleged that Campbell engaged in this act to punish appellants for the contents of the Ode and intended to cause them emotional distress. Appellants contend that this conduct was extreme and outrageous, especially in light of Campbell’s position as Araceli’s principal.

Since this appeal is from the sustaining of a demurrer without leave to amend, this court must assume the truth of appellants’ allegations against Campbell. Based on these allegations, we conclude that reasonable people may differ on whether Campbell’s actions were extreme and outrageous. Accordingly, it is for a jury to make this determination.

Consider the implications of this: The speech here may have been merely anti-Coalinga, but under the First Amendment precisely the same logic should apply when someone publicizes another's postings that are (say) racist, anti-American, sexist, pro-drug-use, anti-gay, pro-crime, or or anti-religious in order to fault them for their views. If you find that someone from your community is expressing views that you believe repulsive, and you try to condemn the person by posting the statements to your blog — or circulating them on an e-mail list or publishing them in a newspaper — you could, given the logic of the case, face a ruinous lawsuit.

Of course, tens of thousands of dollars in legal fees later, you might get off the hook if a jury concludes that your reporting on another's words wasn't "extreme and outrageous." But how can you predict that? Why should we think that this vague and subjective judgment won't turn on the nature of the views you're reporting?

If the touchstone is whether you were acting "to punish" the speaker "for the contents of" his offensive speech, how will a jury distinguish a desire to punish from a desire to inform the public about the evil views that someone they know is spreading? And even if your goal is to punish, through social ostracism, why isn't that a permissible goal, especially when the person has said insulting and in your view deeply wrongheaded views? Either it's no longer fine to try to ostracize someone for being (say) a bigot — or if that's still fine, then how can the law draw a constitutionally permissible line between that and trying to ostracize someone for insulting her home town?

In fact, the U.S. Supreme Court has already made clear — in a unanimous decision — that speech aimed at ostracizing someone is constitutionally protected, even when the person was a private individual exercising his own constitutional rights, and even in an environment where such ostracism may well lead to violence. The case was NAACP v. Claiborne Hardware, and the Court held that speech publicizing the names of black customers who shopped at white stores (contrary to a boycott that the local NAACP and others were organizing) couldn't form the basis of a tort lawsuit for interference with business relations:

Petitioners admittedly sought to persuade others to join the boycott through social pressure and the "threat" of social ostracism. Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action.

The same logic would apply to an intentional infliction of emotional distress lawsuit by the embarrassed person as it would to the lawsuit involved in Claiborne (an intentional interference with business relations lawsuit brought by a business that the embarrassed people stopped frequenting as a result of the threat of ostracism).

Naturally, the violence against Moreno was repulsive. But there was no indication in the opinion (which stated the facts as alleged in the complaint) that the principal was a conspirator in the violence. Nor was there even any indication that the principal knew that there was a very high likelihood that people would take the Ode so seriously as to fire shots over it — not that such knowledge should be enough either, in my view, as cases such as Claiborne illlustrate. At most one could argue that the principal should have known that some violence would result, if the violence is the touchstone of the claim. But exactly the same could be said when one outs a community member as a racist, or a terrorist sympathizer, or whatever else.

Finally, it's conceivable that reprinting the MySpace posting would infringe the author's copyright. But copyright claims are for federal courts to decide under the specific remedial scheme of the Copyright Act, with the various Copyright Act defenses, chiefly fair use. Here it is indeed quite likely that the principal's use was a fair use, because the Ode was noncommercial, because it had been published, because the reprinting wouldn't interfere with the commercial value of the Ode, and because in context the reprinting was probably transformative in purpose — the point was not to use the words as one's own, but rather to condemn the author by quoting his words.

In this respect, the principal's reuse was much like the practice of some blogs in reprinting threatening letters from lawyers when the blogger thinks the lawyer's demand is unfounded, a practice that seems to me to be likely fair use. But republishing the Ode was even more likely to be fair use than republishing a lawyer's nastygram would be: the Ode was published before the republication and the lawyer's letter wouldn't have been (the original work's being unpublished cuts in some measure against fair use).

Moreover, the court's reasoning on the emotional distress tort would have of course equally applied if the principal had quoted only the key excerpts (which would have been even more clearly fair use), and paraphrased the rest (which would not have been even presumptively copyright infringement, if it copied only the idea and not the expression). So the court's decision can't be defended on copyright law grounds.

So this is an unsound and dangerous opinion. Fortunately, it's unpublished and therefore doesn't set a binding precedent in California. But it is available in Westlaw and Lexis, and can certainly be influential. I hope California courts quickly change course, and see the First Amendment problems with allowing the emotional distress tort to be used this way.

UPDATE: Some commenters read the opinion as suggesting that the Ode was published in the Coalinga Record as if Moreno had actually submitted the Ode to the record. I'm skeptical about that. The opinion does say, "The Ode was published in the Letters to the Editor section of the Coalinga Record. The Ode was attributed to Cynthia, using her full name." But if it was attributed in the sense of just looking like a letter to the editor, then (1) the fault for that would likely be the newspaper's, not the principal's, but the newspaper publishers were dismissed as defendants; (2) presumably the cause of action would be for defamation or false light, since the gravamen of the case would be deception; and (3) I take it there'd be some reference to the supposed outrageousness of the deception in the court's analysis, but there was none.

In any case, if indeed the newspaper and Campbell together published something as a letter to the editor, even though it was never submitted as a letter to the editor, that would indeed be bad, and likely actionable. Among other things, it would injure Moreno's reputation, since someone who says insulting things about her home town in a letter to the editor of a newspaper is likely to be seen as much more reprehensible than someone who says insulting things about her home town in a Myspace journal — the strongly implied false assertion that Moreno submitted the Ode as a letter to the editor would thus be false and defamatory. But the proper solution to that is a cause of action under a tort that's carefully limited to false statements of fact, rather than under a tort that just leaves it to the jury to decide whether the behavior (even in the absence of any falsehood) is "outrageous."

If anyone has more details on the case, please let me know. (I tried to find more online, including on the California Court of Appeal's site, but I couldn't see the briefs or other papers in any directly accessible place.)

I neglected to link to this New York Times article when it came out a few weeks ago, but I thought I'd remedy that now. If you're interested in the constitutional issue, you might check out my Freedom of Speech and the Right of Publicity article.

(This post returns to some points I'd made earlier about the California, Massachusetts, and Vermont same-sex marriage/civil union decisions, and applies them to the Iowa case.)

Like some earlier decisions striking down opposite-sex-only-marriage rules, the Iowa Supreme Court decision helps illustrate what I call "legislative-judicial slippery slopes" — the tendency of some legislative decisions to affect future judicial decisions, even judicial decisions that cover territory considerably beyond the original statute.

Now this tendency is often pooh-poohed when the initial legislative decision takes place — and of course that makes sense, because the decision's backers want to argue that the decision is quite narrow. Thus, for instance, consider:

1. Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, arguing that the claim that a hate crime law "would lead to acceptance of gay marriages" was "arrant nonsense."

2. Editorial, A Gay-Protection Forum, Boston Globe, Oct. 15, 1989, at A30: "Nor does passage of the bill [that bans sexual orientation discrimination in various commercial transactions] put Massachusetts on a 'slippery slope' toward [same-sex marriage or domestic benefit] rights."

3. Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise (quoting Riverside Human Relations Commission member Kay Smith): "Those that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward same-sex marriages] .... But, this legislation needs to be looked at on the face value of what it is, and it really does very little."

Yet consider how the Iowa Supreme Court used the legislative enactment of these sorts of laws as part of its basis for deciding that the right to marry should be seen as encompassing same-sex marriage (some paragraph breaks added):

A second relevant consideration [in deciding whether discrimination based on a characteristic should be closely scrutinized by courts] is whether the characteristic at issue — sexual orientation — is related to the person’s ability to contribute to society. Heightened scrutiny is applied when the classification bears no relationship to a person’s ability to contribute to society. The existence of this factor indicates the classification is likely based on irrelevant stereotypes and prejudice. A classification unrelated to a person’s ability to perform or contribute to society typically reflects “prejudice and antipathy — a view that those in the burdened class are not as worthy or deserving as others” or “reflect[s] outmoded notions of the relative capabilities of persons with the characteristic.”

Not surprisingly, none of the same-sex marriage decisions from other state courts around the nation have found a person’s sexual orientation to be indicative of the person’s general ability to contribute to society. More importantly, the Iowa legislature has recently declared as the public policy of this state that sexual orientation is not relevant to a person’s ability to contribute to a number of societal institutions other than civil marriage. See Iowa Code § 216.6 (employment); id. § 216.7 (public accommodations); id. § 216.8 (housing); id. § 216.9 (education); id. § 216.10 (credit practices). [Footnote: The legislature has further indicated the irrelevancy of sexual orientation by mandating sex education in the state’s public schools be free of biases relating to sexual orientation, Iowa Code § 279.50, and by securing personal freedom from violence and intimidation due to sexual orientation, id. § 729A.1. Likewise, numerous state administrative regulations indicate sexual orientation is not relevant to a person’s ability to contribute to society. See Iowa Admin. Code r. 191-48.9 (prohibiting discrimination in making or solicitation of viatical settlement contracts on basis of sexual orientation); id. r. 281-12 (preamble) (ensuring access to education meeting child’s needs and abilities regardless of sexual orientation); id. r. 281-12.1 (ordering equal opportunity in educational programs regardless of sexual orientation); id. r. 281-12.3 (ordering school boards to consider the potential disparate impact of student responsibility and discipline policies on students because of students’ sexual orientation); id. r. 281-68.4 (prohibiting discrimination in admission process to public charter schools based on sexual orientation); id. r. 282-25.3 (labeling denial of participation in benefits of educational program based on sexual orientation an “unethical practice”); id. r. 282-26.3 (prohibiting licensed educators from discriminating based on sexual orientation); id. r. 641-131.7 (allowing public health department to take numerous adverse actions against emergency medical care personnel who “practice, condone, or facilitate” discrimination against a patient on the basis of sexual orientation); id. r. 641-131.8 (allowing public health department to take numerous adverse actions against training program or continuing education providers who “practice, condone, or facilitate” discrimination against a patient on the basis of sexual orientation); id. r. 641-132.10 (allowing denial, probation, revocation, and suspension of authorized emergency medical service programs that discriminate on the basis of sexual orientation); id. r. 645-282.2 (prohibiting licensed social workers from discriminating on the basis of sexual orientation); id. r. 645-363.2 (providing that sexual-orientation-based discrimination by sign language interpreters or transliterators is unethical); id. r. 657-3.28 (providing that sexual-orientation–based discrimination by pharmacy technicians is unethical); id. r. 657-8.11 (same for licensed pharmacies, licensed pharmacists, and registered pharmacistinterns); id. r. 661-81.2 (prohibiting entrance of information regarding sexual orientation into Iowa law enforcement intelligence network information system in most circumstances).]

Significantly, we do not construe Iowa Code chapter 216 to allow marriage between persons of the same sex, a construction expressly forbidden in the Iowa Code. See id. § 216.18A (“[Chapter 216] shall not be construed to allow marriage between persons of the same sex, in accordance with chapter 595.”). Rather, we merely highlight the reality that chapter 216 and numerous other statutes and regulations demonstrate sexual orientation is broadly recognized in Iowa to be irrelevant to a person’s ability to contribute to society. [Footnote: Other federal and state authority supports such a conclusion. See Kerrigan, 957 A.2d at 435 (relying on Connecticut statutes banning discrimination based on sexual orientation “in every important economic and social institution and activity that the government regulates”); cf. Frontiero, 411 U.S. at 687 (Brennan, J., plurality opinion) (interpreting congressional protections against gender discrimination as suggesting legislative determination such classifications are “inherently invidious” and implying significance of “conclusion of coequal branch of Government” in deciding whether to apply heightened scrutiny).] Those statutes and regulations reflect at least some measure of legislative and executive awareness that discrimination based on sexual orientation is often predicated on prejudice and stereotype and further express a desire to remove sexual orientation as an obstacle to the ability of gay and lesbian people to achieve their full potential.

Therefore, we must scrutinize more closely those classifications that suggest a law may be based on prejudice and stereotype because laws of that nature are “incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law.” Thus, although we do not interpret chapter 216 to allow same-sex marriage, we rely on the legislative judgment underlying chapter 216 to determine the appropriate level of scrutiny when sexual orientation is the basis for a statutory classification. Based on Iowa statutes and regulations, it is clear sexual orientation is no longer viewed in Iowa as an impediment to the ability of a person to contribute to society.

Similar arguments were made by the Massachusetts Supreme Judicial Court and the Vermont Supreme Court, and by the California Supreme Court, when they decided that their state constitutions should be read as recognizing a right to same-sex marriage (Massachusetts and California) and same-sex domestic partnership benefits (Vermont).

Of course, some people might like this slippery slope, because they like what's on the bottom. (See Deb Price, Marriage Is the Only Acceptable Option, S.J. Mercury News, May 23, 2002: "When Hawaii's steps toward legalizing gay marriage led to a backlash in Congress and many states in the mid-'90s, some gay-rights advocates felt the need to pooh-pooh the 'slippery slope' argument by foes that we'd ultimately try to push beyond any piecemeal rights thrown our way and would be satisfied with nothing less than full marriage. But not anymore. 'Our foes kept saying, 'This is a slippery slope to marriage,' and we kept nodding our heads, 'Yep,'' says [Anne] Stanback, unabashedly embracing marriage as the goal, just as do the movement's two top political groups, the Human Rights Campaign and the National Gay and Lesbian Task Force.") I myself support recognition of same-sex marriage as a policy matter. Still others may disapprove of the bottom of the slope, but might see some of the steps down it as morally imperative.

But it seems to me that decisions such as the ones in California, Connecticut, Iowa, Massachusetts, and Vermont ones illustrate that it's a mistake to just factually dismiss the claims that slippage is possible. When we're dealing with a legal system that's built on analogy and precedent (both binding precedent and persuasive precedent), the possibility of a slippery slope has to be taken seriously.

And this is true even though the past decisions are distinguishable from a future one. Employment discrimination laws, for instance, are not the same as same-sex marriage. Legislative decisions are not the same as constitutional ones. It was certainly possible to draw the line between legislative decisions to ban private discrimination in employment and judicial decisions to ban governmental discrimination in deciding who may marry. That two matters are distinguishable does not mean that they will be distinguished by future decisionmakers. And in fact they may influence future decisionmakers even when the earlier decision expressly disclaims any attempt to accomplish what the later decision did, as was the case with the Iowa antidiscrimination statutes, which expressly said that they "shall not be construed to allow marriage between persons of the same sex." Though they themselves weren't construed as allowing same-sex marriage, they were indeed construed as a data point in favor of a constitutional decision allowing same-sex marriage.

So people who worry about slippery slopes generally — and who worry about slippery slopes in the field of sexual orientation and the law — can't be lightly dismissed. And it is reasonable for them to worry: If we have gotten this far partly through slippery slope effects, will we slip further, and to what? In particular, would this increase the likelihood of further broadening of antidiscrimination laws? Would it increase the likelihood that groups (such as the Boy Scouts) that discriminate based on sexual orientation will be excluded from tax exemptions, just as groups that discriminate based on race are often excluded from tax exemptions? Would it increase the likelihood that such groups will be excluded from generally available benefits?

Would it increase the likelihood of broader restrictions on anti-homosexuality speech — in government-run organizations, or in private organizations coerced by government pressure — by analogy to the broad support in many areas for restrictions on sexist speech? Would it increase the likelihood of restrictions on people's choosing roommates based partly on sexual orientation, or advertising such preferences in "roommates wanted" ads? Would it increase the likelihood of punishment of wedding photographers who refuse to photograph same-sex weddings (even if they have religious objections to participating this way in such ceremonies, and even if they feel that requiring them to photographing same-sex weddings compels them to create artistic works that they do not wish to create)? Would it increase the likelihood that legislatures will repeal religious institutions' partial exemptions from some bans on sexual orientation discrimination in employment?

Perhaps some of this would have already been the case under Iowa statutes — such restrictions are primarily the consequences of antidiscrimination statutes, not of same-sex marriage as such. And the conclusion that the government generally may not discriminate based on sexual orientation is distinguishable from a conclusion that private entities generally may not discriminate based on sexual orientation, or that individuals may not say things that create an "offensive environment" based on sexual orientation.

But as we saw, that two things are distinguishable does not mean that they will be distinguished, and a governmental judgment in one field may be used by other governmental decisionmakers as a reason to push further in another field, whether in interpreting a vague statute, enacting a new statute, or repealing an exemption in an old statute. And such decisions can have effects on other states as well: Consider the Iowa Supreme Court's extensive citations to similar decisions in other states, which I suspect considerably emboldened the Iowa Justices. For some much more detailed and concrete discussion of how the slippage can work -- and I've long stressed that investigating the risk of slippage requires getting detailed and concrete -- see this article I wrote on Same-Sex Marriage and Slippery Slopes that I wrote a few years ago.

So I stress again: Perhaps such slippage would be good, or even if it isn't good, the same-sex marriage decision is so good that it should be embraced regardless of the risk of slippage. But I don't think it's credible at this point to just casually dismiss the possibility of slippage in this area, given how many slippery slope effects we have already seen.

The study of law is to the study of philosophy as Spanish is to Latin.

Here's a phrase I just spotted in a (generally very good) paper I'm reading:

[T]he Court has sanctioned the use of speech as evidence in establishing that ....

Is that "sanctioned" in the sense of "approved" or in the sense of "punished" (a common use of the term "sanction" in litigation)? The reader should be able to figure this out from context, but it's usually better not to put the reader to the work of having to do that, or risk even briefly leading the reader in the wrong direction.

So be careful with this contronym, and avoid using it as a verb, except when the context makes things completely clear (for instance, because you have just been talking about Rule 11 sanctions -- a common legal term -- and your use of "sanctioned" clearly links back to the earlier noun phrase).

Bill Poser (Language Log) pointed me to this passage Providence Journal article:

[Former Chief Justice Frank] Williams’ new chambers needed a total overhaul, Berke said, because the office space had been used for a different purpose for years. It was formerly occupied by the [Rhode Island Supreme C]ourt’s grammarian and interns, Berke said, and had been configured not as a chambers for a justice, but as an office with three work stations.

Anyone know more about the Rhode Island Supreme Court grammarian?