I have an op-ed on the subject in the Wall Street Journal this morning, based on my Georgetown Law Journal article.

there lay a mysterious cipher -- a coded message that appears to have remained unsolved. Until now." That's the start of a very interesting article in Wall Street Journal. Thanks to my friend Prof. Haym Hirsh for the pointer.

You may recall that this is the case in which our coblogger Orin Kerr (currently on leave from the blog because of his temporary government position) participated; he has written the leading law review article on the statute involved. Here's a brief excerpt from an L.A. Times blog:

A federal judge tentatively decided today to dismiss the case against a Missouri woman who had been convicted of computer fraud stemming from an Internet hoax that prompted a teenage girl to commit suicide.

Lori Drew of Dardenne Prairie, Mo., was convicted in November of three misdemeanor counts of illegally accessing a protected computer.

The decision by U.S. District Judge George H. Wu will not become final until his written ruling is filed, probably next week. Wu said he was concerned that if Drew was found guilty of violating the terms of service in using MySpace, anyone who violated the terms could be convicted of a crime....

Drew 50, was to be sentenced in May but Wu had delayed the sentencing until today, saying he wanted to consider the defense motion to dismiss the entire case.

A federal jury convicted Drew in November of the three misdemeanor charges but deadlocked on a felony conspiracy charge that would have carried a sentence of up to 20 years in prison....

Orin's detailed post on the subject -- from before he decided to work on the case -- is here; it's very much worth reading.

If you're interested in writing about the subject — or if you want to suggest topics to incoming staffers on your law journal --check out my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda. True to its title, it lays out a way of thinking about such questions, and then identifies some particular questions that need to be answered. There should be plenty of opportunities here for student articles on those questions, whether those articles agree with my broad framework or disagree with it. Some examples, though there are many more in the article (conveniently :

1. Is it constitutional to restrict gun possession, or handgun possession, or handgun carrying by 18-to-20-year-olds?

2. Is it constitutional to ban gun possession in public housing? (There are a few other articles on this, but only a few, and I think there's room for deeper analyses of the subject.)

3. What are the constitutional constraints on waiting periods for buying guns, or license fees required for such purchases? (Again some articles have touched on this, but there should be a good deal of room for further discussion.)

4. What are the constitutional boundaries on restrictions on gun possession by people who are under indictment but haven't been convicted of any crimes?

And there are many more; check them out, if you're looking for good topics in the area — or if you have already found a good topic, and are looking for arguments you can use or counterarguments you can respond to.

Note also that these topics are important even if the Second Amendment isn't incorporated against the states, since they also arise under the at least 40 state constitutions that recognize an individual right to keep and bear arms. So you needn't put off your article until after the Court decides whether to incorporate the right to bear arms.

By the way, some people worry that if they write about a topic that has been publicly highlighted this way, they'll be preempted by others' articles that are triggered by the same public highlighting. I wouldn't worry about this too much: That's always a risk as to any topic (including old favorites such as articles dealing with an area of the law right after a prominent Supreme Court decision), but there usually end up being only a few articles written on each such topic — and those that are written often take different approaches, and come to different results. That's especially true when an article such as the one I point to identifies many different questions; chances are that there won't be many people writing about each one.

So I hope you find these helpful, whether as authors, or as law review editors (or even law professors) recommending topics to authors.

From Upton v. Upton, 1996 WL 397706 (Conn. Super. Ct.) (emphasis added):

Counsel for the minor children [age 14 and 17 -EV] articulate their strong desire to be primarily cared for in their father's home. Counsel is able to argue that the children are of a sufficient age to tell the court what their preference is, and that that preference is not for a manipulative purpose. The court has some concern as to the identification of these male children with not only their father, but more damaging to them, with their grandfather. Whether or not the children feel economic pressure to side with their father is unknown.

The deed has been done, however, and only healing over time will determine whether or not these children have an adult relationship with their mother. Hating one-half of themselves will not help them into the future. The court orders that counsel for the minor children read the opinion of the court to the children, and the court further requires that the children engage in supportive counseling to assist them in expressing their anger with their mother, and with their father for bringing them into this battle, and leaving them there for so long.

I'm doing a pro bono appellate case in Nebraska, and I'd love to chat confidentially to any readers who might be inclined to offer some free advice, especially about petitions for further review in the Nebraska Supreme Court. I think I'm set on the substantive legal issues, but I'd like a Nebraska-focused perspective on my presentation. (We have very helpful and experienced local counsel helping us already, but an extra pair of ears and eyes is always helpful as well.) If you're interested, please e-mail me at volokh at law.ucla.edu. Thanks!

Perricone v. Perricone, from the Connecticut Supreme Court, officially released a week ago. Seems quite right to me as to permanent injunctions such as this one. For more on the question raised by preliminary injunctions, see this article by Mark Lemley and me.

The following was, I'm told by ADL headquarters, sent today to the Omaha World-Herald by Alan Potash, Director of the Plains States Regional Office of the Anti-Defamation League:

When I wrote to the Omaha World-Herald and said that “free speech does not extend to racist groups,” I misspoke. Free speech can and should extend to such groups. However, extremist or racist speech is not and should not be protected where it incites imminent lawless action that is likely to occur. ADL has a long history of defending free speech and we stand by our deep commitment to this fundamental principle of democracy. See e.g., Responding to Extremist Speech.

I'm pleased to hear it, and I agree that speech -- whether extremist or racist or not -- that "incites imminent lawless action that is likely to occur" is unprotected under Brandenburg v. Ohio (1969). I'm pretty sure that very little of the speech discussed in the Omaha World-Herald editorial to which Mr. Potash's initial statement referred would qualify under this narrow Brandenburg exception. But if indeed the exception is read as narrowly as the Court has read it (see, for instance, Hess v. Indiana (1973)), then I have no disagreement with Mr. Potash's corrected position.

Roger Simon writes (thanks to InstaPundit for the pointer):

I don’t know much about Honduras, but I do know something about Iran. And Obama’s bizarre behavior, taking days to come to the conclusion any decent person knew immediately, indeed other world leaders like Merkel and Sarkozy had demonstrated as much - that there were very clear good and evil sides in the Iranian election, even though the good wasn’t perfect. (Is it ever?) So when I heard that our President had joined Chavez and Castro in condemnation of the supposed coup in Honduras, this time with immediacy, I felt a tightening in the gut. Chavez particularly was on the side of Ahmadinejad in the recent Iranian brutality.

This was a side I didn’t want to be on, didn’t want our country on. I heard many suspicious things about Zelaya, the booted Honduran president, including allegations of drug ties. Also, he was running for succor to the UN, the very organization just weeks ago I had personally seen embrace Ahmadinejad in Geneva. So when I read this message from a Honduran on The Corner, I wasn’t surprised.

Obama has strange friends. He equivocates and equalizes in disturbing ways. Is he “objectively pro-fascist” as George Orwell memorably wrote in his famous essay “Pacifism and the War“?

I give you Eric Arthur Blair. Make of it what you will. For me, the word “pacifism” could be replaced by some coinage (it’s too late here in LA for me to come up with one, if I could anyway) that encapsulates Obamaism in its supposedly even-handed international policy: “Pacifism is objectively pro-Fascist. This is elementary common sense. If you hamper the war effort of one side you automatically help that of the other.”

Now I have nothing helpful to say about the Administration's actual policy on Iran and Honduras; but I do want to repeat something I posted about the "objectively pro-fascist" locution six years ago. In a Dec. 8, 1944 column, it turns out, Orwell himself repudiated the assertion that Simon quotes:

The same propaganda tricks are to be found almost everywhere. It would take many pages of this paper merely to classify them, but here I draw attention to one very widespread controversial habit — disregard of an opponent's motives. The key-word here is "objectively".

We are told that it is only people's objective actions that matter, and their subjective feelings are of no importance. Thus pacifists, by obstructing the war effort, are "objectively" aiding the Nazis; and therefore the fact that they may be personally hostile to Fascism is irrelevant. I have been guilty of saying this myself more than once. The same argument is applied to Trotskyism. Trotskyists are often credited, at any rate by Communists, with being active and conscious agents of Hitler; but when you point out the many and obvious reasons why this is unlikely to be true, the "objectively" line of talk is brought forward again. To criticize the Soviet Union helps Hitler: therefore "Trotskyism is Fascism". And when this has been established, the accusation of conscious treachery is usually repeated....

In my opinion a few pacifists are inwardly pro-Nazi, and extremist left-wing parties will inevitably contain Fascist spies. The important thing is to discover which individuals are honest and which are not, and the usual blanket accusation merely makes this more difficult. The atmosphere of hatred in which controversy is conducted blinds people to considerations of this kind. To admit that an opponent might be both honest and intelligent is felt to be intolerable. It is more immediately satisfying to shout that he is a fool or a scoundrel, or both, than to find out what he is really like. It is this habit of mind, among other things, that has made political prediction in our time so remarkably unsuccessful.

Naturally, appeals to authority can only count for so much, especially when the authority has contradicted itself. And perhaps Orwell’s change of mind was occasioned by the change from the dark days of 1942 to post-D-day, post-Stalingrad 1944. It is easier to be generous to those who, in your view, helped Hitler (even unintentionally) when Hitler is nearly defeated.

Yet I think that Orwell’s second thoughts, whatever their reason, were objectively the right ones. Explaining why your adversaries’ positions unintentionally help fascists is eminently legitimate. But expressly acknowledging that this effect is likely unintentional is both fairer and more likely to persuade the other side, as well as the undecided.

in a Q & A with the L.A. Times:

How do you think conservative talk radio has affected the Legislature's work?

The Republicans were essentially threatened and terrorized against voting for revenue. Now [some] are facing recalls. They operate under a terrorist threat: "You vote for revenue and your career is over." I don't know why we allow that kind of terrorism to exist. I guess it's about free speech, but it's extremely unfair.

Let's just savor it again, in slow motion. A terrorist threat: "You vote for revenue and your career is over." Why do we allow that kind of terrorism to exist? I don't know. It's free speech -- I guess. But it's unfair. Extremely.

Thanks to InstaPundit for the pointer.

So holds the U.S. Court of Appeals for the Eleventh Circuit, in United States v. Tagg: "Unlike the handguns in Heller, pipe bombs are not typically possessed by law-abiding citizens for lawful purposes." (There's more, so if you're interested, check out pp. 10-14 of the opinion.)

The general analysis strikes me as right, for reasons I discussed in my article (at least as to the right to bear arms in self-defense, which is all I focused on). But I do think the reasoning in this sentence (from a case quoted in footnote 5) is not quite right:

[W]e cannot conceive of any non-violent or lawful uses for a pipe bomb.

Of course there are non-violent uses for a pipe bomb, uses that would be lawful except for the illegality of pipe bombs. One can have fun blowing them up, quite possibly fun that is relatively safe, much like people have fun with fireworks or with potato guns, or much like people have fun firing guns at pieces of paper, even without any desire to train or to compete. ("[W]e cannot conceive of any ... lawful uses for a pipe bomb" must refer to something more than just the fact that pipe bombs are illegal, or else one could equally well have said it about a total ban on all guns or on handguns, given that possessing them would then no longer be lawful.)

Now it may well be that such entertainment uses of pipe bombs are not socially valuable enough to justify allowing their private possession; that's a plausible argument, and it might even be what the court was driving at. But the court made its argument not by discounting entertainment value, but by pretending that it doesn't exist.

For my criticism of a similar factual error in the First Amendment context (as to the murder manual case, Rice v. Paladin Enterprises), see PDF p. 26 & n.124 of my Crime-Facilitating Speech article. Again, this doesn't necessarily tell us how highly we should value such entertainment. Perhaps it's proper to ban books, weapons, drugs, or whatever else that pose sufficient risk of sufficiently serious harm, if their value seems to consist almost entirely of entertainment. As I said, I do think that pipe bombs are not protected by the Second Amendment or state constitutional right to bear arms provisions (at least by their right to bear arms in self-defense components).

But I don't think that we should find it so hard to "conceive of" people enjoying things that go "Boom!" If some nonviolent use is too frivolous to outweigh the harm that the bad uses cause, say so, but don't assume that such nonviolent uses don't exist.

I've often heard people defending various K-12 speech restrictions by citing Morse v. Frederick (the BONG HiTS 4 JESUS case). Many of these people think Morse is wrong, but argue that it's binding precedent.

But as to many of these arguments (see some in this thread), Morse is often not very relevant, much less binding. One premise of the Morse majority is that the speech wasn't "political":

Elsewhere in its opinion, the dissent emphasizes the importance of political speech and the need to foster “national debate about a serious issue,” as if to suggest that the banner is political speech. But not even Frederick argues that the banner conveys any sort of political or religious message. Contrary to the dissent’s suggestion, this is plainly not a case about political debate over the criminalization of drug use or possession.

Two of the five Justices in the majority (Justices Alito and Kennedy) stressed this in the very first paragraph of their opinion:

I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no sup-port for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”

What's more, three of the four dissenters agreed: "This is a nonsense message, not advocacy."

Now, as I argued when the decision came down, I think the Justices were wrong to say that Frederick's message was nonsense, or even just nonpolitical. The majority said "BONG HiTS 4 JESUS" "could be interpreted as an imperative ... 'smoke marijuana' or 'use an illegal drug,'" or "as celebrating drug use -- 'bong hits [are a good thing],'" two messages that the majority saw as constitutionally indistinguishable. But these messages indeed "can plausibly be interpreted as commenting on any political or social issue": They implicitly suggest that drug laws are a bad idea ("violate law X" often tends to suggest that, especially as to laws that are quite controversial), which is a comment on a political issue. And they suggest that drug use is a good idea, which is a comment on a social issue.

Yet while the Court applied its own test incorrectly to these facts, it hardly follows that it should apply its own test incorrectly to other facts as well, especially ones that are quite far removed from these. Perhaps Morse supports the view that highly opaque statements might be seen as nonpolitical. Perhaps it supports the view that mere advocacy of illegal conduct is nonpolitical, though I think that is inconsistent enough with the rest of the Court's precedents that I don't think it's right to read Morse even that broadly.

But surely the T-shirt below (to give the example that triggered this post) clearly "can plausibly be interpreted as commenting on any political or social issue":

It is saying that abortion is immoral, so people shouldn't engage in it. And it is probably also saying that it is so immoral that abortion should be legally restricted. (That abortion is currently constitutionally protected doesn't matter: That just means that legally restricting it would require either electing Presidents who appoint enough Justices who would hold that abortion is constitutionally unprotected, or enacting a constitutional amendment to the same effect -- politically quite difficult, especially at this point, but certainly calls for this are political speech. Plus of course even if abortion can't be entirely banned, it can be restricted in various ways, which the T-shirt likely implicitly calls for as well.)

Now indeed if the T-shirt said something like "Kill abortionists," then perhaps the Morse analogy would govern. I would still say that such a statement is political speech and thus Morse shouldn't apply, but I can see the argument that statements in Morse distinguish, in the K-12 public school context, between advocacy of illegal conduct and advocacy of changing the law (or changing social attitudes). But nothing in Morse would extend to the T-shirt mentioned above.

I can understand why many people are upset at Morse. I can also understand why many people like Morse and wish it had gone further, perhaps (as Justice Thomas suggested) to give K-12 school administrators blanket authority to restrict student speech. But if we're looking at what the language of Morse actually means, it seems to me that we need to acknowledge that it's distinctly limited in its scope.

[UPDATE: The statement I criticize below has now been corrected by Alan Potash.]

That's the view of Alan Potash, the ADL's regional director for Nebraska, Iowa, and Kansas. Pretty appalling, it seems to me — simply false as a statement of current free speech law (which it sounds like it is), and deeply misguided as a matter of what the law should be.

And in the wake of attempts to condemn Israeli policies as racist, it should be pretty clear to American Jews that such a position could easily be turned around them. After all, any university administration that takes the view that Israeli actions towards the Palestinians are racist could easily conclude that defenders of those actions are racist as well, and therefore suspended or driven off campus. Or how about Orthodox Jews (and perhaps quite a few other Jews as well) who believe that homosexuality is against God's will? Once "racist groups" lose their free speech rights, it's hard to see why "homophobic groups" wouldn't equally lose them.

What about groups that express deep religious hostility, as I've heard many Jews do with regard to the Jews for Jesus? Perhaps such hostility is justified, or perhaps not, but after "racist groups" lose their First Amendment rights, "religiously bigoted groups" might come close behind. I think free speech protection even for the "ideas we hate" is the right approach in general; but even if the ADL is narrowly focused on its own community's concerns (as some groups well might), it should still, I think, reach the same result.

Note that the director isn't even making the ostensibly narrow arguments in favor of banning speech that advocates violence, or that uses epithets, or some such. So long as you are a "racist group[]," "freedom of speech does not extend" to you. I hope the national ADL promptly condemns Mr. Potash's statements.

unanimously in Franken's favor. Thanks to Barton Jacka for the pointer.

The T-shirt -- judging by the appendix to the complaint -- seems to be this one:

And as I read the school district's argument (p. 13), the district admits this, arguing that the then-7th-grader's T-shirt violated a school dress code banning any "suggestion of tobacco, drug or alcohol use, sexual promiscuity, profanity, vulgarity, or other inappropriate subject matter."

That strikes me as a clear First Amendment violation under the Supreme Court's decision Tinker v. Des Moines School Dist. (1969). If junior high school students have a constitutional right to wear a black armband to protest the Vietnam War, at least until there's some serious evidence that the armband is likely to cause substantial disruption, they must have an equal right to wear a T-shirt to protest abortions.

And nothing in the school district's motion suggests that the student was ordered to change shirts because of a risk of disruption; the school district apparently thinks that it can just categorically ban any T-shirts that deal with this "inappropriate" "subject matter." One might argue, as Justice Thomas has (and as Justice Black before him had), that Tinker should be overruled; but it's the law, and school districts should comply with it.

The case is discussed in more detail -- though not as to the First Amendment claims -- in T.A. v. McSwain Union Elementary School Dist., 2009 WL 1748793 (June 18). For a similar case, which apparently led to an agreement by the school to allow such T-shirts, see here.

From Wood v. State (Tex. Ct. App. June 18):

During the punishment phase of appellant’s trial [for aggravated assault with a deadly weapon], Sheriff David Halliburton testified that appellant had a tattoo on each eyelid. The word “Lying” was on one, and “Eyes” on the other. Appellant objected to the testimony stating that it was not relevant. The trial court overruled the objection. The State mentioned the tattoos in its closing argument on punishment, arguing that they showed appellant’s lack of respect for society.

At the punishment phase of a criminal trial, evidence may be presented as to any matter that the court deems relevant to sentencing. [In Texas, sentencing, even in noncapital cases, is often done by a jury. -EV] ... The tattoos were ... used ... to show his disregard for the truth and his moral character. A person’s tattoos can reflect his character and demonstrate a motive for his crime. Conner v. State, 67 S.W.3d 192, 201 (Tex. Crim. App. 2001). The trial court did not err in admitting evidence of appellant’s tattoos....

I'm not sure whether "lying eyes" does indeed show a person's "lack of respect for society" in the sense of lack of respect for moral or legal norms (as opposed to a lack of respect for its conventions of what's attractive and what's repulsive or even disgusting). "Lying eyes" could mean eyes that deceive their owner. Or it could mean eyes of a liar (which in the song were actually the part of the body that revealed the lie). Yet even if it means the latter, I doubt that people who have such tattoos are really admitting to being any more prone to lying than the average person.

Still, the threshold for admissibility of evidence is generally pretty low, especially at sentencing, where the question isn't just what a person did but what sort of person he is overall. And it's for a jury to determine just how much a person's own statements -- including his tattoos -- say about his character; so the court probably got it right as a matter of the admissibility of evidence, though if I were a juror I wouldn't give it much weight.

I've heard some people argue that the Ninth Circuit's holding (in Nordyke v. King) that the Second Amendment is incorporated against the states was "dictum" -- and thus not really legally binding, even on district courts in the Ninth Circuit and other panels of the Ninth Circuit -- because the court went on to hold that the Second Amendment (even as incorporated) doesn't preclude the ordinance involved there, which was a restriction on gun possession on county property. (Likewise, people made the same argument about the Fifth Circuit's pre-Heller holding in United States v. Emerson that the Second Amendment secures an individual right, but doesn't preclude the particular statute involved in that case.) The conclusion that the Second Amendment binds state and local governments, the argument goes, isn't really necessary to the result because the court could have reached the same conclusion by simply assuming without deciding that the Second Amendment is incorporated. Therefore, the incorporation conclusion is mere "dictum."

I think this is a mistaken conception of dictum, but much scholarly (and some judicial) ink has been spilled on the theoretical question of how dictum should be defined. Instead, I just wanted to repeat something I said earlier (in the Emerson context): If Nordyke v. King is dictum, then some extremely important Supreme Court rulings are dictum, even though they have to my knowledge never been treated as such. Here are three:

1. Jackson v. Virginia (1979). Jackson claimed that there was insufficient evidence to convict him in his state trial, and that she had a federal Due Process Clause right to have her conviction reversed on these grounds. To resolve this question, the Court first had to figure out whether the Due Process Clause secured such a right (a matter that was quite unresolved at the time, and that was contested by the Virginia prosecutors). The Court addressed this in some detail, and concluded that the Due Process Clause secured such a right. But it concluded that the right was limited in scope: The Due Process Clause is violated only if "upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." This condition wasn't satisfied in this case, so Jackson lost.

2. Strickland v. Washington (1984). Strickland claimed that his lawyer provided ineffective legal assistance, and that this violated the Sixth Amendment right to counsel. To resolve this question, the Court first had to figure out whether the Sixth Amendment secured such a right (likewise, a matter that was quite unresolved at the time). The Court addressed this in some detail, and concluded that the Sixth Amendment secured such a right. But it concluded that the right was limited in scope: The Sixth Amendment is violated only if "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "[j]udicial scrutiny of counsel's performance must be highly deferential . . . [--] a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" This condition wasn't satisfied in this case, so Strickland lost.

3. Yesterday's Safford Unified School Dist. v. Redding. Redding claimed that she was entitled to damages for violation of the Fourth Amendment, because a near-strip-search at school violated her Fourth Amendment rights, and those rights were well enough established that the defendants didn't have qualified immunity against damages. To resolve this question, the Court first had to figure out whether her Fourth Amendment rights were indeed violated. The Court addressed this in considerable detail, and concluded that there was indeed a Fourth Amendment violation. But it concluded that the rule wasn't well enough established, so Redding lost. (If you think that for some reasons qualified immunity cases are a different category, even after reaching the merits first became optional with the demise of Saucier v. Katz, then ignore this example and focus on the three others.)

4. Everson v. Board of Ed. (1947), an incorporation case. Everson claimed that a particular government policy violated the Fourteenth Amendment, because the Fourteenth Amendment incorporated the Establishment Clause against the states, and the policy violated this incorporated Establishment Clause. To resolve this question, the Court first had to figure out whether the Fourteenth Amendment did indeed incorporate the Establishment Clause. The Court addressed this fairly briefly, and concluded that the Fourteenth Amendment did incorporate the Establishment Clause. But it concluded that the Establishment Clause didn't bar all evenhanded government benefit programs that covered religious schools as well as secular schools. The threshold for violation of the Establishment Clause wasn't met in this case, so Everson lost.

5. So now we have Nordyke, another incorporation case. Nordyke claims that a particular government policy violated the Fourteenth Amendment, because the Fourteenth Amendment incorporated the Second Amendment against the states, and the policy violated this incorporated Second Amendment. To resolve this question the Ninth Circuit panel first had to figure out whether the Fourteenth Amendment did indeed incorporate the Second Amendment. The court addressed this in considerable detail, and concluded that the Fourteenth Amendment did incorporate the Second Amendment. But it concluded that the Second Amendment gives the government a fairly free hand to restrict gun possession on government property. The threshold for violation of the Second Amendment wasn't met in this case, so Nordyke lost.

My point is simply that all five of these examples (perhaps with the exception of item 3, if you think qualified immunity cases are somehow different) are on par with each other. If you think that Nordyke's incorporation discussion is dictum and not strictly binding, the same would have been true of all the other cases, at least until the first decisions actually finding liability under those cases were reached. But, as I said, to my knowledge no-one has treated the core legal reasoning of Jackson, Strickland, and Everson as dictum. Nor should they do the same as to Nordyke.

That's a line from an apparent "gay exorcism," according to ABC News. The article saus that "Robin McHaelen, executive director of the Manchester-Conn., True Colors," "a nonprofit group for gay and lesbian youth that has mentored [a teenager] for about a year," "said she was mandated by law to report the exorcism to the state Department of Children and Families, which she said is now investigating." The video referred to by the article is apparently available here.

This sort of action sounds quite silly to me, since the notion of demonic possession strikes me as about as sensible as the notion of werewolves, vampires, or witches. I also think there was nothing immoral about homosexuality, but even if I took the opposite view on the morality, I'd think that exorcisms would hardly be the way to stop the problem.

Yet it appears that others hold a different view, and I can't see what the state can "investigate" here. It's not any physical violence to the child, or so it appears from the video. The writhing and apparent vomiting do not seem to stem from physical attacks, but presumably from the subject's feeling that the exorcism does have some effect (or perhaps his feigning such a feeling). Nor can the state react to the exorcism on the grounds that there's something wrong with the religious nature of the event; such a singling out of religious practices for special action would violate the Free Exercise Clause. And the complainant's argument about how the parents are "murdering this kid's soul" helps show, I think, the weakness of argument by metaphor.

The only plausible argument for restricting such behavior, it seems to me, is that attempts to "cure" a 16-year-old of homosexuality (or perhaps specifically such attempts when done in front of a group of other people, and posted to the Internet) are so psychologically harmful and justified that they constitute child abuse. But that, I think, is taking the notion of punishable child abuse — a sensible notion, of course, when properly limited — way too far. Parents do much that is good, some that is bad, and some that is either good or bad depending on your ideology, through psychological pressure on their children, including pressure that's done through groups to which the parent and the child belongs. It is the very rare circumstance, it seems to me, that justifies intruding into parental decisionmaking absent serious physical abuse or neglect (e.g., denial of medical care, beatings, sexual contact, and so on).

I am, of course, aware that some teenagers may commit suicide based partly on hostile reactions to their homosexuality. But teenagers, unfortunately, apparently commit suicide based on many factors, such as parental pressure to succeed at school, reactions to parental divorce, and so on. Treating the possibility of such awful outcomes as a basis for punishing the parents (or stripping them of parental rights) strikes me as an unacceptable attempt by the government to micromanage child-rearing, and a very bad precedent for the future.

Fortunately, so far we have just a complaint to the Department, not any government action. But I thought I'd pass this along, since it has hit the news and strikes me as a noteworthy incident, though one in which the right legal answer should be pretty clear.

makes its appearance in this linguists' amicus memorandum filed in Rodearmel v. Clinton, the Ineligibility Clause (a k a Emoluments Clause) case.

The question, as you may recall, is this: Does "the Emoluments whereof shall have been encreased during such time" refer to a salary having been increased on balance during a time ("the Time for which [Senator Clinton] was elected")? Does it refer to the salary having been increased at least once even if it was later decreased? Or is the phrase ambiguous, as the linguists suggest?

A law professor who directs an adjunct-taught legal writing program e-mailed me this, in response to my article on the subject:

[T]he phenomenon you describe is one of my biggest hurdles. I spend a significant amount of time warning my adjuncts not to “correct” anything they can’t demonstrably show, through a reliable source, to be wrong. I also advise them to do just what you say: mark sticky usage or spelling as unwise, perhaps, or likely to inflame passions but not “wrong” unless it truly is, and to look everything up before marking it even if they’re certain they are correct. I still see “forgo” “corrected” to “forego” when it means to go without, and phrases like “have carefully reviewed” edited to put “carefully” after “reviewed,” for who knows what reason. Sigh. Even if these were actual mistakes, our students certainly have more important things to worry about in trying to improve their writing....

[Also,] I occasionally am hired by big law firms to tutor associates in legal writing. One downtown firm asked me to put on lunchtime presentations for the associates, but to begin with a session for the partners, to train them how to be effective writing coaches. I thought this was a wonderful idea. Among the things I included in that presentation was a general admonition along the lines of what you wrote: don’t mark personal preferences but rather stick to actual mistakes, for all the reasons you cite as well as some of my own. A partner objected strenuously. He said, and I kid you not, “One of the reasons I became a partner was to impose my personal preferences on others.” I was not asked back.