reports the Washington Post. "[Alan] Gura [who won the D.C. v. Heller case] filed another lawsuit in federal court in March on behalf of three individuals who wanted a handgun that wasn't on the District's list. To avoid that litigation, Attorney General Peter Nickles said the city decided to expand its list of legal weapons to include those listed on Maryland's and Massachusetts's "safe gun rosters."

A federal court holds that someone being prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor is constitutionally entitled to present an affirmative defense "that he posed no prospective risk of violence" (which I take it must mean no prospective risk of violence beyond that posed by the average person). The jury would thus be instructed that, if it agrees with the defendant that he posed no prospective risk of violence, it should acquit despite the flat prohibition imposed by the statute.

Here is the meat of the opinion, U.S. v. Engstrum (Stewart, D.J.) (June 15, 2009):

This matter is before the Court on Defendant's Motion for Jury Instruction regarding his possession of a firearm. The Court previously denied Defendant's Motion to Dismiss Indictment, in which Defendant argued that the Second Amendment to the U.S. Constitution protected his right to have a firearm in his house for home and self defense. In its April 17, 2009 Order, the Court found that strict scrutiny was required to justify a deprivation of an individual's Second Amendment right to keep and bear arms. The Court also found that 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by those previously convicted of a domestic violence misdemeanor, passed strict scrutiny. Finally, the Court found that § 922(g)(9) was, therefore, presumptively lawful, but that the presumption could be rebutted by a showing that the individual charged under § 922(g)(9) posed no prospective risk of violence. With regard to the Defendant, the Court found that it could not say, as a matter of law, that the Defendant posed no prospective risk of violence.

Defendant concedes that he is a restricted person, otherwise covered by § 922(g)(9). In May 2008, Defendant and his girlfriend (the "Girlfriend") were residing at a home in West Valley City, Utah (the "Residence"). On May 9, 2008, Defendant and the Girlfriend got into an argument and the Girlfriend left the Residence. On May 10, 2008, the Girlfriend returned with the police to retrieve her personal belongings, accompanied by a friend, who waited outside the Residence while the Girlfriend entered to retrieve her belongings. Defendant refused to return her things, and an argument ensued. During that argument, Defendant grabbed the Girlfriend's arm, and the Girlfriend claims she feared for her safety. The Girlfriend attempted to use pepper spray on the Defendant, but the canister did not work. Defendant took the pepper spray away from the Girlfriend and was successful in using it on her. The Girlfriend then left the Residence and called the police.

When police arrived at the Residence, the Girlfriend informed them that Defendant kept a gun in his bedroom, although the gun was never used or displayed in any way by the Defendant prior to the police arriving. Defendant allowed the police to enter the Residence, where one officer noticed an unspent round on the floor of the Residence. When officers inquired about the gun, Defendant advised them that it was in his bedroom dresser drawer, and that he had unloaded it when he learned that law enforcement would be arriving at the Residence. The officers found the unloaded gun from the bedroom dresser drawer. The gun was not taken from the Residence at that time.

On May 22, 2008, West Valley Police contacted Defendant and inquired about the gun. Defendant indicated that he owned the gun and that it was a gift from his father. There is no evidence to indicate that Defendant had ever used the firearm. However, Defendant was advised that he could not have a gun due to a prior misdemeanor domestic violence conviction. Defendant indicated to police that he would surrender the gun and ammunition. Police arrived at the Residence later that day and Defendant signed a consent to search form and surrendered the gun and ammunition....

The Court finds that Defendant may raise, as an affirmative defense, that the charged offense may not be applied to him because he posed no prospective risk of violence. Such a defense is in keeping with the law stated in the Court's April 17, 2009 Order. The Court also finds that the affirmative defense raised by Defendant does not negate any element of the offense charged. Therefore, while the government must prove every element of the charged offense beyond a reasonable doubt, if Defendant chooses to argue that he posed no prospective risk of violence, Defendant will bear the burden of proving his defense to the jury by a preponderance of the evidence. However, the defense must be supported by sufficient evidence. Therefore, the Court will only instruct the jury on Defendant's defense if the Court finds that, during the course of trial, Defendant has presented sufficient evidence to convince a reasonable jury that he does not pose a prospective risk of violence. In the event that Defendant meets that burden, the Court will instruct the jury regarding Defendant's proposed Second Amendment defense in the following terms:

The Second Amendment to the United States Constitution guarantees the fundamental right of individuals to keep and bear arms. That right may only be infringed when the restriction is narrowly tailored to meet a compelling government interest. You are instructed that 18 U.S.C. § 922(g)(9), the crime for which Defendant is charged, is, as a matter of law, a lawful and constitutional restriction of the Second Amendment rights of those who pose a prospective, or future, risk of violence.

If you find that the government has proved beyond a reasonable doubt the elements of the charge against him, as set forth in Jury Instruction Number ____, regarding Count I, you are instructed that Defendant is presumed to pose a prospective risk of violence. However, Defendant is entitled to offer evidence to rebut that presumption and show that he did not pose a prospective risk of violence. It is the burden of the Defendant to prove to you, by a preponderance of the evidence, that he did not pose a prospective risk of violence.

Therefore, if you find that the Defendant did not pose a prospective risk of violence, he may not be deprived of his Second Amendment rights, and you must find him not guilty. However, if you find that the government has proved beyond a reasonable doubt the elements of the charge against him, and that the Defendant has not proved, by a preponderance of the evidence, that he posed no prospective risk of violence, you must find the Defendant guilty.

By the way, all I could find from Pacer about Engstrum's past domestic violence misdemeanor conviction was that it was a "domestic violence assault" that had happened in "Midvale Justice Court in 2007." (The statement of facts above describes only the conduct that led to the discovery of the gun, but it was the 2007 conviction that caused Engstrum to be prosecuted for "possession of firearms by those previously convicted of a domestic violence misdemeanor.") Presumably the jury would be told about the circumstances of this past conviction, as well as about other things, in determining whether Engstrum indeed "pose[d] a prospective risk of violence" at the time of possessing the gun.

From Jones v. Graham County Bd. of Educ. (N.C. Ct. App. June 2) (some paragraph breaks added), an interesting discussion of the issue:

A Georgia trial court imposed such a ban in 2007; the Georgia Supreme Court just set it aside on Monday, in Mongerson v. Mongerson:

There is no evidence in the record before us that any member of the excluded community has engaged in inappropriate conduct in the presence of the children or that the children would be adversely affected by exposure to any member of that community. The prohibition against contact with any gay or lesbian person acquainted with Husband assumes, without evidentiary support, that the children will suffer harm from any such contact. Such an arbitrary classification based on sexual orientation flies in the face of our public policy that encourages divorced parents to participate in the raising of their children, and constitutes an abuse of discretion. See Turman v. Boleman, 235 Ga. App. 243, 244 (1998) (abuse of discretion to refuse to permit mother to exercise visitation rights with child in the presence of any African-American male); In the Interest of R.E.W., 220 Ga. App. 861 (1996) (abuse of discretion to refuse father unsupervised visitation with child based on father’s purported “immoral conduct” without evidence the child was or would be exposed to undesirable conduct and had or would be adversely affected thereby). In the absence of evidence that exposure to any member of the gay and lesbian community acquainted with Husband will have an adverse effect on the best interests of the children, the trial court abused its discretion when it imposed such a restriction on Husband’s visitation rights.

Two justices (Melton and Carley) "write separately to emphasize" that the quoted passage above "should only be read to stand for the well-settled proposition that, absent evidence of harm to the best interests of the children through their exposure to certain individuals, a trial court abuses its discretion by prohibiting a parent from exercising their visitation rights while in the presence of such individuals (in this instance, Husband’s homosexual partners and friends)."

By the way, here's an extract from the 1998 Turman case, which I hadn't heard of it until now:

Turman and Boleman were divorced on November 13, 1996. Their settlement agreement, which was incorporated into the final judgment and decree, provided that Boleman would have custody of their minor child. The agreement gave Turman certain specified visitation rights away from the father's residence “on the condition [that] at no time shall [the child] be in the presence of William ‘Larry’ Little or any other African-American male except that [Turman] shall not be in contempt of court if she has casual contact with any African-American male other than William ‘Larry’ Little.” After Turman married Kenneth Turman, an African-American male, Boleman refused to allow Turman to visit with the child away from Boleman's residence. Turman moved to hold Boleman in contempt for refusing to allow her to exercise her visitation rights. At the hearing on the contempt motion, Turman argued that the provision in the settlement agreement conditioning her visitation rights upon the child's having no contact with any African-American male was unenforceable.

The trial court improperly upheld the validity of the visitation provision which prohibited the child's contact with any African-American males. This provision is unenforceable as against public policy.... The visitation provision here violated the express public policy against racial classification and the public policy encouraging a child's contact with his noncustodial parent.

The trial court held that the provision was enforceable because it was a matter of private contract. However, after that private agreement was incorporated into the trial court's order, enforcing the private agreement became state action.... The courts of this State cannot sanction such blatant racial prejudice, especially where it also interferes with the rights of a child in the parent/child relationship.

The agreement between the parties clearly violated the State's public policy to promote the best interests of the child. “It is the express policy of this state to encourage that a minor child has continuing contact with parents and grandparents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their children after such parents have separated or dissolved their marriage.” Contrary to this policy, the agreement prevents the child from having contact with his natural mother solely on the basis of an arbitrary racial classification. Although a court may validly provide, under appropriate circumstances, that a child is to have no contact with particular individuals who are deemed harmful to the child, such provision cannot be based solely upon racial considerations, as such ruling violates the public policy of the State of Georgia.

Monday's Mongerson, with which I began the post, apparently doesn't have this extra twist of an initial agreement by the parties; the father seemingly either never agreed to the "[no] exposing the children to ... homosexual partners and friends" condition, or agreed to it only because the trial court "express[ed] its opinion that, but for the agreement, the trial court would not have permitted Husband the limited contact to which the parties agreed" (and then promptly appealed the trial court order).

Thanks to How Appealing for the pointer.

From U.S. v. Kincannon (7th Cir.):

The government’s closing argument came next, during which the prosecutor made an analogy to an Academy-Award-winning movie: The Godfather. Recounting a pivotal scene where the director simultaneously presented assassinations orchestrated by the protagonist, Michael Corleone, the prosecutor explained that he, like the movie’s director, would attempt to seamlessly tell the “story of what happened” in this case....

Kincannon ... argues, for the first time on appeal, that the prosecutor inflamed the passions of the jury, rendering the trial unfair, by referring in closing argument to The Godfather ....

The prosecutor’s reference to The Godfather does not approach impropriety. It would be one thing if the government compared Kincannon to Michael Corleone, an organized crime kingpin responsible for murders and a whole host of other criminal activity. Such an analogy would be utterly unmoored from the record, which is probably why the government made no such connection. It was not Corleone’s criminality, but Francis Ford Coppola’s direction that was at the heart of the prosecutor’s closing remarks. The prosecutor alluded to the pivotal point in the movie where Corleone attends his godchild’s christening. Coppola cuts to various scenes of assassinations orchestrated by Corleone as a priest dubbed him the child’s godfather. The poetic implication is that the murders, like the priest’s liturgy, made Michael the godfather of the Corleone crime family. As the prosecutor said, “[n]ow that is how you present events that occur simultaneously in a movie so the viewer can understand it very easily.” We agree, as did the Academy of Motion Picture Arts and Sciences, who nominated Coppola for an Oscar for best director. [Footnote: In an upset along the lines 2 of the 2009 Kentucky Derby win by Mine That Bird, the 1972 Oscar went to Bob Fosse (for Cabaret) rather than Coppola.] The prosecutor explained to the jury that he would try to do orally what Coppola did in his film — that is, tie together the events that occurred during the two controlled buys into one seamless story. To do so as eloquently as Coppola is a tall task, but there is certainly nothing improper about the attempt.

An interesting fact about the case, from the start of the opinion, "At 77 years old, James Kincannon makes for an unlikely methamphetamine dealer. But looks can be deceiving." And from later on, "Kincannon was in his fifties when his criminal record started and days away from his 73rd birthday when he was last released from prison after being popped for distributing drugs."

In modern English, second-person pronouns have the same form in the singular and the plural -- "you," for instance, can mean either one person or a group. (I set aside the now almost entirely archaic "thou," and the regional "y'all.") The same is true in some other languages, at least as to the formal second-person singular. (The informal second-person singular, equivalent to the archaic English "thou," survives in at least some of those languages.)

But what second-person pronoun form is actually different in the singular and in the plural? It might be obvious to most of you, but I just thought about it a few days ago, when talking to my 5-year-old, and realized that I'd never consciously noticed the difference before (though I'm pretty sure I always use both forms correctly).

That's the law in Arkansas (§ 5-14-125(a)(6)(B)), and a proposed law in Louisiana. (Right now, Louisiana makes it a crime to have sex with under-19-year-old students, but the bill, which unanimously passed both chambers of the legislature, would change that to sex with under-21-year-olds. The crime is a misdemeanor for the first offense in Louisiana, and a felony in Arkansas.) This might well be unprofessional conduct that would justify firing the teacher, but sending the teacher to prison?

The "abuse of a position of power" rationale doesn't work here, I think; the teacher has no more power over the student than the typical employer, or police officer, or many other people. Yet we deal with the extraction of sexual favors through threats in those contexts by requiring proof of abuse (whether in a civil case or a criminal extortion case), not by just presuming it.

Nor does the psychotherapist analogy work. To my knowledge, psychotherapist-patient sex isn't a felony, though it may lead to professional sanctions, and in any event the teacher-student relationship strikes me as quite different from the psychotherapist-patient relationship.

That's how I read the proposed amendment to Michigan Rule of Evidence 611 that was apparently adopted today:

The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.

Note, though, that the Detroit News reports that "The Michigan Supreme Court today adopted a court rule that allows judges to prohibit witnesses from wearing veils in court." Perhaps the adopted rule was different from the proposed rule I quoted. But if it's the same as the proposed rule, then it sounds like judges must prohibit veils for testifying witnesses, since the rule says "[t]he court shall exercise reasonable control ... so as to ... ensure that the demeanor of such persons may be observed and assessed" (emphasis added).

I should note that there's a lot of controversy among experts about whether observing a person's demeanor really does help laymen assess the person's credibility. I have seen claims (I haven't researched this closely myself) that in fact observation is completely useless except to those who are trained in certain ways. But the importance of demeanor evidence has long been assumed by our legal system, whether rightly or wrongly, and this decision seems consistent with that assumption. It may even be necessary if that assumption is accepted, unless letting the witness testify veiled but discounting the testimony is somehow made to work as an option (and it's not clear to me that it can be).

Thanks to Rob McEachern for the pointer.

Craigslist's Motion to Dismiss in Gibson v. Craigslist, Inc. struck me as quite good. But I noticed a particular usage choice that I thought might have been unwise, and I wanted to think what others thought of it.

Craigslist appears to consistently identify itself as craiglist, uncapitalized, and the motion does the same, with paragraphs such as:

craigslist has great sympathy for the situation and injuries of the plaintiff alleged by the Complaint. craigslist condemns gun violence and the illegal purchase and sale of firearms. Users who post advertisements on the craigslist website are required to accept terms of use that expressly prohibit advertisements for the sale of illegal goods and for the sale of weapons, including firearms.

But that strikes me as quite jarring to the reader. Having a business name be uncapitalized in the middle of the sentence ("on the craigslist website") is odd enough, but having the first word of a sentence uncapitalized ("craigslist has great sympathy," "craigslist condemns") is even more unusual and therefore likely to be distracting and annoying.

Of course, I'm sure a judge or a law clerk won't deliberately rule against Craigslist for unusual capitalization. But my sense is that this sort of departure from otherwise rigid linguistic norms is likely to put some readers in a slightly worse mood, and make them slightly less receptive to the substantive argument (if only because they're distracted from it by the capitalization choice).

Nor can one say that somehow this capitalization choice is required in English to accurately reproduce the company's name (which is why, for instance, we'd use 3M to refer to 3M even though names that start with numbers are highly unusual in English). Even if that might justify leaving "craigslist" uncapitalized in the middle of a sentence (which I doubt), it provides no explanation for having "craigslist" be uncapitalized as the first word of a sentence. After all, normal English words that are generally uncapitalized are capitalized at the start of a sentence; why should "craigslist" be any different?

My sense is that when in court, you should do as the judges do. Law is generally a methodologically and procedurally conservative field, and judges are more likely to be annoyed than pleased by flashes of nonconformity, whether they consist of the lawyer's personal grooming choices (say, mohawks) or of the company's choice to depart from English usage conventions, especially ones as consistent as capitalization at the start of sentences. And would craigslist, or craig, or any of the rest of the craigslist crew, really be so offended if the lawyer wrote Craigslist instead?

But perhaps I'm wrong, and perhaps no judge or clerk would be even slightly and subconsciously soured on the motion by this sort of usage choice. So I'd like to know what you folks think about it.

UPDATE: Some commenters suggested that having a lower-case "craigslist" follows the standard usage for proper names, which supposedly never change their capitalization, even when they start a sentence.

But I'm skeptical that this is a standard exception to the "always capitalize the first word of a sentence" rule. There are, of course, relatively few names as to which such a standard exception could even develop, since most proper names begin with a capital letter. Yet, unless I'm mistaken, the great majority of such names are names in which there's a lower-case particle that begins what is generally seen in English as the last name: Hernando de Soto, Jacobus tenBroek, Luiz Inácio Lula da Silva, and the like. And I'm pretty sure that one would capitalize those last names (when used in English as last names) when the name started a sentence. Thus,

President Luiz Inacio "Lula" da Silva had vetoed 19 provisions of the law that authorizes the zones, including a core provision that would have given companies operating in them five years of tax immunity. Da Silva argued that these provisions would have violated Brazil's World Trade Organization obligations.

President Luiz Inacio "Lula" da Silva had vetoed 19 provisions of the law that authorizes the zones, including a core provision that would have given companies operating in them five years of tax immunity. da Silva argued that these provisions would have violated Brazil's World Trade Organization obligations.

So it seems to me that capitalizing the first letter of a sentence is a very powerful norm in English, even when the first letter is a usually uncapitalized part of a proper name. Perhaps there are a few rare exceptions for e e cummings and a few other people who are trying to make a statement with their nonconformism, but they are quite rare. So departing from the rule, it seems to me, is both (1) not clearly mandated by some well-established exceptions, and (2) likely to be jarring to readers who expect to see the rule being followed.

That's the conclusion of Monday's Gibson v. Craigslist, Inc. (S.D.N.Y.), applying the service provider immunity of 47 U.S.C. § 230: Craigslist isn't liable for the ad, even if the ad itself is tortious:

Plaintiff seeks to hold [Craigslist] liable for its alleged failure to block, screen, or otherwise prevent the dissemination of a third party's content, i.e., the gun advertisement in question, alleging, among other things, that Defendant "failed to monitor, regulate, properly maintain and police the merchandise being bought and sold on its ... website" and "is either unable or unwilling to allocate the necessary resources to monitor, police, maintain and properly supervise the good and services sold on its ... website." It is clear that Plaintiff's claims are directed toward Craigslist as a "publisher" of third party content and "Section 230 specifically proscribes liability in such circumstances."

I don't think that Craigslist should be liable even under normal state tort law: I don't think it's negligent for Craigslist not to police its ads, given the high costs of reading each ad and then trying to figure out whether it offers an illegal transaction or is likely to lead to injury. What's more, while I couldn't find a quote of the ad itself -- if any of you can point me to it, I'd love to see it -- the plaintiff's own motion (p. 7) says that "the content of the ad placed upon defendant's website was not, in itself, objectionable," and that it didn't say things like "'Illegal handguns for sale' or 'Shoot your neighbor.'" The plaintiff's argument therefore seems to be not just that Craigslist should look at every ad (or perhaps at all ads that contain certain keywords), but that it should further investigate the circumstances of the ad to see whether the proposed transaction is illegal (or poses unreasonable dangers) even when the illegality or unreasonable danger is not obvious from the ad's face.

But negligence law is quite mushy and unpredictable in many ways, and even if it doesn't lead to liability, it can lead to a long and very expensive legal fight. 47 U.S.C. § 230, as interpreted by courts, has been considerably more clear and protective, and can often be used to throw out lawsuits very early in the process. So I'm particularly happy (but not at all surprised, given the text of the statute and past caselaw interpreting it) that the court decided the case on § 230 grounds.

Special bonus from reading the plaintiff's opposition to the motion to dismiss (p. 3): "[Craigslist's] only concern is the bottom line, the public be darned." Never quite heard that way of putting it (though I can see why the lawyer didn't want to say "damned").

The next sentence, on the other hand, is less amusing: "For public policy concerns, [Craigslist] must be immediately regulated or shut down." It's also probably a poor way of arguing the case, given that the whole premise of 47 U.S.C. § 230 is that service providers shouldn't be "regulated" or "shut down" by fear of liability; if you're arguing that § 230 doesn't apply, you should probably argue that you're calling for a very modest and narrow sort of liability -- for instance, the liability imposed on newspapers, which one would hardly call "regulat[ing]" or "shut[ting] down" the newspaper -- rather than for regulation or shutdown.

Thanks to Prof. Michael Krauss for the pointer. As I noted above, if any of you can point me to the text of the ad, which I couldn't find in any of the Pacer-accessible documents (the Complaint, for some reason, isn't on Pacer), that would be great -- it's not relevant under the court's 47 U.S.C. § 230 approach, but it might nonetheless be helpful for discussing the broader issues.

I blogged last December about the Fourth Circuit opinion (U.S. v. Whorley) upholding this conviction; yesterday, the Fourth Circuit denied rehearing en banc, with only one vote in favor of en banc review -- that of Judge Gregory, who dissented from the panel opinion. Here's most of his dissent from the denial of rehearing; I think the majority have the better view of the matter under existing First Amendment precedents, and I doubt that the Supreme Court will agree to hear the case to revisit or limit those precedents, but I thought the argument was nonetheless worth noting:

Dwight Whorley was convicted on twenty counts of violating [the federal ban on transporting obscenity in interstate commerce] for communicating by e-mail with consenting adults about their personal and private fantasies. The offending e-mails were purely textual and did not include any images. They implicated no commercial interest and, although the e-mails described fantasies about sexual conduct involving children, the children referred to were imagined, not real. It is undisputed that the e-mails did not involve any victimization or exploitation of actual children....

This is a difficult case. The e-mails were admittedly transmitted and received through channels of interstate commerce and were found by a jury to be obscene under the obscenity test laid out in Miller v. California (1973). One might say that this absolves us of the need to look any further into the potential constitutional harms inflicted by the application of 18 U.S.C. § 1462 to Whorley's conduct. Haven't we long said, after all, that the First Amendment does not protect obscenity? Yet, "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end." Ashcroft v. Free Speech Coalition (2002). I am hard-pressed to think of a better modern day example of government regulation of private thoughts than what we have before us in this case: convicting a man for the victimless "crime" of privately communicating his personal fantasies to other consenting adults.

(Show the rest of Judge Gregory's dissent from denial of rehearing en banc.)

In Stanley v. Georgia (1969), the Supreme Court extended First Amendment protections to the possession of obscene materials in the privacy of one's home. Since then, our obscenity jurisprudence has not allowed Stanley to reach much beyond its facts. As the panel opinion notes, the Supreme Court "has repeatedly rejected the notion ... that as a matter of logic, because the First Amendment prohibits the criminalization of private possession of obscene materials within the home, there exists a correlative 'right to receive' obscene materials." Yet, I am aware of no case that, in limiting Stanley, deals with circumstances like this where the sending or receiving of the obscene materials involves neither a commercial transaction nor any kind of victim. In fact, I have difficulty seeing what interest the government could possibly have in regulating this particular conduct of Whorley's other than some sort of "indirect harm" theory of the type rejected by the Supreme Court in Free Speech Coalition.

In that case, the Court considered the constitutionality of a definition of "child pornography" in the Child Pornography Prevention Act of 1996 that would have covered "a range of depictions, sometimes called 'virtual child pornography,' which include computer-generated images, as well as images produced by more traditional means." Noting the clear state interest in prohibiting the production or distribution of images that "are themselves the product of child sexual abuse," the Court could identify no similar interest in regulating "virtual child pornography" since it "creates no victims by its production." The Court then rejected the Government's claim that this kind of pornography can indirectly cause harm by creating "some unquantified potential for subsequent criminal acts." The Court found that "[t]he mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it .... [because] [t]he government 'cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts.'"

Similarly, here, I see no interest in regulating the sending of private e-mail fantasies about imaginary children beyond the perceived desirability of censoring these kinds of thoughts. Free Speech Coalition makes clear that the First Amendment protects against this kind of censorship premised on speculative and indirect theories of harm.

One might argue that this case is distinguishable from Free Speech Coalition because here we are dealing with material that has been found obscene and thus is not entitled to any First Amendment protections to begin with. But, as the Supreme Court recognized in Stanley, while "the First and Fourteenth Amendments recognize a valid governmental interest in dealing with the problem of obscenity[,] .... the assertion of that interest, cannot, in every context, be insulated from all constitutional protections." Free Speech Coalition and Stanley, taken together, stand for the proposition that when the government's only interest in regulating obscenity is to protect people from their own thoughts or to censor thoughts that have an unquantifiable potential to induce future bad acts, the First Amendment shelters individuals from this kind of state intrusion on their personal privacy. "Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds ." Stanley; cf. United States v. Reidel, (1971) (suggesting in reversing dismissal of indictment for mailing obscene circulars that the case might be different if defendant had "complaints about governmental violations of his private thoughts or fantasies").

The Supreme Court has long recognized that "constitutionally protected expression ... is often separated from obscenity only by a dim and uncertain line" and thus we must be careful that "regulations of obscenity scrupulously embody the most rigorous procedural safeguards." Where the state has a legitimate interest in regulating obscene materials -- for example, where those materials are being commercially traded and/or where those materials are the product of the abuse or exploitation of their subjects -- the First Amendment's protections may not apply. But where the only articulable interest in regulation is a fear of the expression of certain kinds of thoughts, even obscenity must be given a constitutional safe harbor. "Stanley rests on the proposition that freedom from governmental manipulation of the content of a man's mind necessitates a ban on punishment for the mere possession of the memorabilia of a man's thoughts and dreams, unless that punishment can be related to a state interest of a stronger nature than the simple desire to proscribe obscenity as such." Reidel (Harlan, J., concurring).

In today's world, our e-mail inbox, just as much as our home, has become the place where we store the "memorabilia of [our] thoughts and dreams," and the same principles that animated Stanley call now for Stanley's extension to the circumstances of this case. A failure to recognize Stanley's applicability to non-commercial, private e-mail communications in which the government has no legitimate interest dangerously restricts the use of today's dominant medium for exercising freedom of speech.

The Supreme Court's obscenity jurisprudence has never come close to stripping adults of First Amendment protections for their purely private fantasies, and the implications of our sanctioning this kind of governmental intrusion into individual freedom of thought are incredibly worrisome. This is an important and difficult case, and one that I strongly believe merits rehearing by this court sitting en banc. My colleagues apparently disagree, and I therefore urge the Appellant to seek certiorari from the Supreme Court.

(Hide most of the above text.)

My colleagues at Mayer Brown LLP and I are working on a pro bono amicus brief in the U.S. v. Stevens case — arguing in favor of striking down the speech restriction — and I wanted to ask readers who know about state hunting regulation for some help.

The law being challenged is 18 U.S.C. § 48, which says:

(a) Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.

(b) Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.

(c) In this section --
(1) the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and
(2) the term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.

I'm looking for examples of

1. "conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed"
2. that is likely not to seem particularly outrageous to most Justices, and
3. that (unlike bullfighting bans) is legal in many states but banned in a few (or even in quite a few).

Other good examples would be if only a few states ban the killing of some animal, or ban some methods of killing, or ban the killing of female game animals but not males, or ban the taking of fish that are smaller than some size, while many other states allow this. Naturally, this is just a small part of what we're likely to argue in the brief. But I was hoping I might have readers' help with this. If you can point me to some such laws, I'd be much obliged.

The Spokane Spokesman reports:

Petitions were being printed Tuesday for Referendum 71, which asks Washington voters to overturn a new law granting same-sex domestic partners many of the rights of spouses.

But those who sign the petitions may be in for a surprise. Some R-71 opponents have put up a Web site -– www.whosigned.org -– where they intend to post the names of all the required 120,577 signers.

Washington law apparently makes the names of petition signers publicly available, and if that's so then those who disagree with the petition certainly have a First Amendment right to publicize those names. To be sure, such public identification of people's political actions can deter people from exercising their political rights, and might even be intended to have that effect. (But the use of speech to pressure people through threat of social ostracism is constitutionally protected. And this is so even if the speech may have the effect of stimulating illegal discrimination against people -- Washington law prohibits employers from discriminating against employees based on their political activities -- and conceivably even violence.

(The site organizers are quoted as saying that “We think that it will help neighbors talk to each other,” and the site also says that the publicity can help people verify the accuracy of the petitions. But I'm pretty sure that these won't be the main effects of the site's operation, and I suspect that they weren't the sole reasons for the site to be put up.)

Yet the rise in such outing tactics -- especially now that people can use the Internet to easily turn formally public records that are practically inaccessible into records that are truly available to everyone in seconds -- raises the question of just what records the government should make public, especially in unrestricted ways. Even if the government wants to let challengers check the validity of petition signatures, it can do so in ways that reveal less information, for instance by revealing only small but statistically valid samples, or (possibly) by requiring people who access the information to promise not to redistribute it (see, e.g., Seattle Times Co. v. Rhinehart, upholding such a protective order as to information released for purposes of litigation).

So my questions: Should referendum, initiative, recall, and candidate nomination signatures be treated more like voters' ballots, which are expected to be kept secret? Or should they be treated more like legislators' votes for proposed bills, which are expected to be made public? For that matter, how should we treat other political information, such as voters' party registration and the record of people's large campaign contributions, which is generally made public now? And what should be our ethical judgment about people's publicizing others' low-level political activity of this sort?

From my friend Kristina Johnson (Former Chef). Yum. And even if you won't want to make it, check out the photos — beautiful; here's one:

A commenter on the New Jersey parental profanity ban thread writes:

Geez, they didn't even bother to criminalize "offensive speech" yet, going directly from "hate speech" to "abusive to your own d*mned kids" speech.

But, hey, it's all for the children. The Village has to start raising them sometime, and you might as well not let a good crisis go to waste.

The trouble with this argument is that there's no "going directly from 'hate speech'" to punishment of vulgarities around one's own children here. The punishment of vulgarities long preceded the modern attempts to restrict "hate speech." This particular statute was enacted in 1915; the slightly musty language of the full statute, to which my post linked, might have suggested the same thing. (Consider, for instance, the clause about "performing of any indecent, immoral or unlawful act or deed, in the presence of a child, that may tend to debauch or endanger or degrade the morals of the child.")

Even if one looks way earlier than the modern "hate speech" movement to "group libel" statutes, the earliest such statute I could find was from 1917, two years after the New Jersey statute. And even if there were some earlier ones (there was a 1913 statute in New York banning advertisements that stated that people of certain races or religions weren't welcome in places of public accommodation, though that's pretty far removed from modern proposed "hate speech" bans), there's no reason to suspect any causal connection between the two.

The fact is that throughout much of American history, there were all sorts of restrictions — on vulgarity, on harsh criticism of religion, on speech that had the tendency to encourage people not to register for the draft, and much more — that would be pretty clearly unconstitutional today. They didn't come from the modern multiculturalist left, or from any discernible predecessor of it. Many, perhaps most, of them came from what would probably today be seen as the right, though it's sometimes hard to tell for sure.

I've often criticized many speech restrictions and proposed speech restrictions that have come from the left (as well as many from the right and from other places). I'm certainly happy to condemn many of the left's attempts to restrict speech (again, alongside others' attempts). But let's not lightly assume that past restrictions, or for that matter current restrictions, stem, directly or not, from the left's proposals. That just isn't what American history, or the present state of American politics, suggests.

For more on my general point here, see here. Such overattributions of speech restrictions to the left are, unfortunately, not just isolated incidents, which is why I thought they might be worth publicly correcting.

N.J. Stat. Ann. § 9-6-1 provides that, "Abuse of a child shall consist" of, among other things, "the habitual use by the parent or by a person having the custody and control of a child, in the hearing of such child, of profane, indecent or obscene language." § 9-6-3 makes such abuse a crime.

An eminently predictable result under current First Amendment law (Griswold v. Driscoll, D. Mass., June 10, 2009), but still worth noting, I think, for the clear First Amendment defense of leaving curricula to the political process (in the second to last paragraph of the excerpt below):

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In 1998, the Massachusetts Legislature directed the state Board of Education ... to prepare and distribute to all school districts an advisory Curriculum Guide for teaching about genocide and human rights. The Convention on the Prevention and Punishment of the Crime of Genocide, which was adopted by the United Nations in 1951, defines "genocide" as an effort intended to "destroy, in whole or in part, a national, ethnic, racial, or religious group" by killing members of the group or in other ways. The act requiring the preparation of the Curriculum Guide expressly provided that it could include materials concerning "the Armenian genocide." The Curriculum Guide as originally drafted pursuant to the Legislature's direction included a section on the "Armenian Genocide," that began, "[i]n the 1890's, and during World War I, the Muslim Turkish Ottoman Empire destroyed large portions of its Christian Armenian minority population."

After the issuance of the draft Guide, a Turkish group urged the Commissioner of Education to revise the Guide to include references to sources supporting the viewpoint that the fate of the Armenians did not result from a Turkish policy of genocide, but rather from other factors, including an Armenian revolt in alliance with Russia against the Ottoman Empire. The parties refer to such sources as "contra-genocide" materials. In response to this request, the Commissioner added references to several contra-genocide websites to the Guide which was filed with the Legislature in March, 1999.

The inclusion of references to the contra-genocide websites in the Guide prompted a strong response from the Armenian community and its supporters. They urged then Governor Paul Cellucci to have those references removed from the Guide. The Commissioner subsequently removed the references to the contra-genocide websites from the Guide in June, 1999.

In August, 1999, Turkish groups, including the Assembly of Turkish American Associations (the "ATAA"), complained about the removal of the contra-genocide websites. However, the Commissioner did not restore the references to the contra-genocide websites. Rather, he responded that the Legislature had encouraged the inclusion in the Guide of materials concerning the "Armenian genocide" and, he wrote, it would be inconsistent with that direction to include references that rejected the idea that a genocide had occurred. The Commissioner did, however, note that the Guide was only advisory, school districts could develop their own approaches to teaching about the matter in controversy, and the Turkish community was free to advocate its viewpoint. The Commissioner recommended that if the Turkish community wished to pursue its concerns, it do so through "legislative channels." ...

The plaintiffs allege that the Board removed the contra-genocide websites from the Curriculum Guide solely for political, rather than educational, reasons. They contend that this was unlawful....

[P]ublic schools play a vital role in preparing students for citizenship in our nation. Except in limited circumstances, decisions concerning what should be taught must be made by state and local school boards rather than by federal judges.

Public officials may not establish educational policies tailored to the tenets of a religious group. Nor may they compel students to profess a prescribed belief, or limit their right to express themselves in school unless the restriction is reasonably related to a legitimate educational purpose. However, none of these concerns are implicated in this case.

Public officials have the right to recommend, or even require, the curriculum that will be taught in public school classrooms. Doing so is a form of government speech, which is not generally subject to First Amendment scrutiny. There is no requirement that such government speech be balanced or viewpoint neutral. Rather, public officials generally have the right to decide what should be taught in the effort to prepare students for citizenship.

Plaintiffs do not assert that they initially had a right to have contra-genocide references included in the Curriculum Guide. However, they argue that once those materials were added they could not be removed solely for political, rather than pedagogical, reasons, as they allege occurred in this case.

This contention, however, is not correct. Public officials are generally entitled to change their minds about what is recommended or required to be taught in public school classrooms. The Supreme Court's resolution of Board of Education v. Pico, 457 U.S. 853 (1982), on which plaintiffs rely, is not inconsistent with this conclusion. In Pico, five Justices voted to remand for further factual development a case in which plaintiffs claimed that controversial books were removed from the school for purely political or partisan reasons. However, no opinion commanded five votes and, therefore, Pico is not binding precedent even on the question of whether books can be removed from a school library for political reasons. Moreover, the four Justices who expressed the view that removing books from a library for political or partisan reasons would violate the First Amendment made a sharp distinction between what is available as optional reading in a library and what is taught in the classroom, where, they recognized, public officials could prescribe the curriculum. Since Pico was decided in 1982, the Supreme Court has explicitly held that when the state is the speaker it can decide the content of its message, and has stated that the curriculum of public schools is a fully protected form of state speech. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833 (1995).

(Hide most of the above.)

It appears that reference to the contra-genocide websites was added to the Curriculum Guide because of concerns expressed by the Turkish community. Viewed in the light most favorable to plaintiffs for the purpose of deciding the motion to dismiss, the court assumes that those references were later removed in response to "political pressure" that the Armenian community put on elected and appointed officials. This, however, is not unlawful.

Politics is not a pejorative term in our nation. Properly understood, politics is the essence of democracy. It is the way that a free and vigorous people make and then change public policy. With regard to what will be taught in public school classrooms, we rely on the power of the people to elect and, if they wish, change their representatives as the means to hold them accountable for decisions concerning the content of the curriculum. Except in limited circumstances not at issue here, this is not a role to be performed by United States judges in our federal form of government.

The facts of this case demonstrate that the plaintiffs and those who share their viewpoint concerning Armenians in the Ottoman Empire are fully capable of participating in the political process. It is in the political arena that they must seek the relief to which they are not entitled in federal court.