That's the headline on a CNSNews.com article. But if you look closely at what Judge Sotomayor actually did, the headline — and some other statements of the rest of the story — doesn't really fit. (Note that the CNSNews article has been linked to by quite a few other sources.)

Here's what happened in the case: Kristopher Okwedy's Keyword Ministries made a deal with a billboard company to put up the following billboards on Staten Island:

Word on the Street
4 WAYS TO SAY LEVITICUS 18:22
THOU SHALL NOT LIE WITH MANKIND AS WITH WOMANKIND: IT IS ABOMINATION (KING JAMES)
YOU SHALL NOT LIE WITH A MALE AS WITH FEMALE: THAT WILL BE LOATHSOME (JAMES MOFFAT)
DO NOT LIE WITH A MAN AS WITH A WOMAN: IT IS DETESTABLE (BERKLEY VERSION)
HOMOSEXUALITY IS ABSOLUTELY FORBIDDEN FOR IT IS AN ENORMOUS SIN (LIVING BIBLE)
I AM YOUR CREATOR

For the last two days we have attempted to contact your office, without success ....

I write regarding the recent appearance on two of your Staten Island billboards of four translations of Leviticus. As you are probably aware this particular biblical verse is commonly invoked as a biblical prohibition against homosexuality.

The sponsor for the billboard message is nowhere apparent on the billboard, so I am writing to you with the hope that I can establish a dialogue with both yourself and the sponsor as quickly as possible.

Both you and the sponsor of this message should be aware that many members of the Staten Island community, myself included, find this message unnecessarily confrontational and offensive. As Borough President of Staten Island I want to inform you that this message conveys an atmosphere of intolerance which is not welcome in our Borough.

P.N.E. Media owns a number of billboards on Staten Island and derives substantial economic benefits from them. I call on you as a responsible member of the business community to please contact Daniel L. Master, my legal counsel and Chair of my Anti-Bias Task Force ... to discuss further the issues I have raised in this letter.

What did the Second Circuit panel, on which Judge Sotomayor was a member, do? It held in some measure for Okwedy on his Free Speech Clause claim. It reasoned (in my view quite correctly) that "Plaintiffs’ Free Speech Clause claim turns on the question of whether Molinari’s letter ... was an unconstitutional 'implied threat[] to employ coercive state power to stifle protected speech,' or a constitutionally-protected expression by Molinari of his own personal opinion." And it reversed (again, in my view quite correctly) the district court's conclusion "that Molinari’s letter was constitutionally-protected speech because the 'letter ... was not reasonably susceptible to a threatening interpretation, and [Molinari] did not have regulatory authority over PNE’s business.'" The panel concluded that

[A] jury could find that Molinari’s letter contained an implicit threat of retaliation if PNE failed to accede to Molinari’s requests. In his letter, Molinari invoked his official authority as “Borough President of Staten Island” and pointed out that he was aware that “P.N.E. Media owns a number of billboards on Staten Island and derives substantial economic benefits from them.” He then “call[ed] on” PNE to contact Daniel L. Master, whom he identified as his “legal counsel and Chair of my Anti-Bias Task Force.” Based on this letter, PNE could reasonably have believed that Molinari intended to use his official power to retaliate against it if it did not respond positively to his entreaties. Even though Molinari lacked direct regulatory control over billboards, PNE could reasonably have feared that Molinari would use whatever authority he does have, as Borough President, to interfere with the “substantial economic benefits” PNE derived from its billboards in Staten Island.

The panel also issued an accompanying unpublished opinion rejecting the Free Exercise Clause and Establishment Clause claims. For both, it reasoned — again, in my view quite correctly — that Molinari's action was aimed at the anti-homosexual aspects of the message, not the religious aspects of the message. This meant that there was no Free Exercise Clause violation; as the Supreme Court's landmark Employment Division v. Smith decision held, religion-neutral laws are generally not violations of the Free Exercise Clause even when they're applied to people who have religious motivations for their actions. (The possible "hybrid claims" exception [see pp. 664-65 of this article if you want to know more about it] would in any event not apply, since it had been rejected by the Second Circuit by the time Okwedy was decided.)

There was also no Establishment Clause violation, for much the same reason; as the district court said (and on this the Second Circuit unpublished opinion endorsed the district court), " The letter responds to the message, not the religious source of the message. As plaintiffs acknowledge, the billboards were deliberately erected to convey an anti-homosexual message, and they were placed where plaintiffs believe that a substantial number of members of the gay community and their supporters would be exposed to it. That plaintiffs used a quotation from the Bible to convey their message does not give it extra protection, or insulate it from criticism by public officials." These are easy decisions given the Court's Free Exercise Clause and Establishment Clause caselaw, which is probably why the panel decided that they weren't worthy of a published opinion.

So the CNS headline, "Sotomayor Supported Censoring Biblical Verse on Homosexuality from New York City Billboard," strikes me as at the very least quite likely to mislead readers. "Supported censoring," I think, is likely to make people think that she rejected the group's Free Speech Clause claim, and (to quote the second paragraph) "upheld a lower court's ruling ... against" the claimants. But the panel reversed the lower court's ruling against the claimants, and concluded that if indeed the government official was "censoring" the verse in the sense of threatening reprisals — as opposed to exercising his own free speech rights to condemn the speech — that would have violated the Free Speech Clause.

What's more, later on the story further errs by saying, "In their 'summary order' the judges ruled that the district court was correct to dismiss Okwedy’s claim that Molinari’s letter violated free speech rights." The summary order (that's the unpublished opinion I mentioned earlier) didn't uphold the district court's free speech ruling; it upheld its Free Exercise Clause and Establishment Clause rulings, and the published opinion reversed the free speech ruling.

Later in the opinion (in paragraph 20, by my count), the story acknowledges that the panel reversed the district court on something ("DePrimo also noted that the court issued two different opinions on the case, dismissing most of the case with the summary order, but writing a published opinion on one portion of the case that was sent back to the district court") but doesn't says that this reversal was on the free speech issue. Only in paragraph 29 does the story acknowledge that in "the court's written opinion, ... Okwedy's free speech claim was returned to the lower courts for a new ruling," and quotes Prof. William Marshall as saying that "The part that I saw, the speech piece of it, is a very pro-religious expression piece."

I think that the panel on which Judge Sotomayor sat handled the case quite correctly (though I'm sure that I'd disagree with Judge Sotomayor on lots of other issues in lots of other cases). But even if one disagrees with the panel, it seems to me that the description in the CNS News story is quite misleading.

This item also criticizes Judge Sotomayor for the panel decision that I note above. It at least acknowledges in the second paragraph that the panel held for Okwedy on one issue, but nonetheless concludes:

The case raises troubling issues. After all, the church was posting a purely religious message with no statements regarding public policy. The opinion suggests that Sotomayor may view the First Amendment through the lenses of political correctness. Would a billboard proclaiming "gay pride month," which is offensive to many Christians, have been similarly treated? Sotomayor should be asked.

Setting aside Okwedy's claim that the Molinari letter was an implied threat of government retaliation against the billboard company, which would have violated the Free Speech Clause — that's the issue on which Sotomayor and the other judges held Okwedy should prevail, if he could prove the factual underpinnings — there's little troubling in the panel decision. Government officials are entitled to criticize people who oppose homosexuality (or support polygamy or advocate pacifism or urge socialism), whether the people who are criticized are making religious arguments or secular arguments. And that's true even if the arguments simply quote the Bible; on matters such as these (I set aside purely theological questions such as the nature of the Trinity), moral beliefs have secular implications.

Religious speakers, like other speakers, have a right to be free from coercive suppression of their speech. But they have no right to be free from criticism of their speech (perhaps setting aside the purely theological issues I noted above, as to which the government is supposed to have no opinion). To the extent Molinari's actions might have constituted coercive suppression, the panel rightly let Okwedy try to prove that for his Free Speech Clause claim. But setting that aside, the criticism of hostility towards homosexuality (whether secular or religious) is not a constitutional violation.

The myth of Aegeus:

When Theseus set out to defeat the Minotaur on Crete, Aegeus made him promise to set white sails on the way back, so that he would understand if the mission had been successful. Theseus, however, forgot to do so, and when Aegeas saw the ship return with black sails, he committed suicide by throwing himself off a cliff into the sea. From that day, the sea was named after him: the Aegean Sea.

The Moral: Call your parents. Make sure they know you're OK. They worry, you know?

(and, most immediately, supporting the petition for certiorari in McDonald v. City of Chicago, in which the Court could decide on incorporation): It's available here, and it's signed by Jack Balkin, Randy Barnett, Michael Kent Curtis, Michael Lawrence, and Adam Winkler.

Of these, only our own Randy Barnett is known as a general pro-gun-rights from the conservative or libertarian (in his case, of course libertarian) camp, though Lawrence might also be a left libertarian (I don't know him as well as I know the others).

On the other hand, Balkin is a noted liberal. Curtis is also a liberal, though one with a lower public profile (but to my knowledge highly respected among law professors, and certainly highly respected by me, as a legal historian). Winkler is a liberal, a prominent critic of the Heller decision, and a supporter of the constitutionality of the D.C. handgun ban — he had filed a brief, together with Erwin Chemerinsky, on D.C.'s side in Heller.

here. As you might expect from the Federalist Society, the panelists are an ideologically mixed group -- Tom Goldstein, Wendy Long, Prof. Louis Seidman, Prof. David Stras, and Ed Whelan.

An exchange between the majority and the dissent in Norwood v. Vance, decided yesterday by the Ninth Circuit. The issue:

Defendants claim the district court erred by refusing to give the following jury instruction:

In considering whether defendants were deliberately indifferent to the need for outdoor exercise, the jury should consider that defendants had a competing obligation under the Eighth Amendment to ensure the safety of prisoners, including protecting prisoners from each other. In considering these factors, you should give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security in a prison.

The district court initially agreed to the language but, after plaintiff objected, declined to include it on the ground that “deference” was “undefined.”

Part of Chief Judge Kozinski's argument for the majority:

The district court declined to give the proposed instruction because the meaning of deference would not be “clear to a lay person.” But “deference” is not Urdu or Klingon; it is a common English word. See, e.g., Michael Crichton, Airframe 78 (1996) (“[S]he certainly knew where all the bodies were buried. Within the company, she was treated with a deference bordering on fear.”). It may be true that deference has varied meanings, Dissent at 8515 n. 4, but so do most English words. If the district judge believed the term needed further context or definition, he could have provided it.

Part of Judge Thomas's dissent:

The majority criticizes the trial judge on this point, contending that deference is a commonly understood lay term, and could not have been confusing. However, its citation of language in the novel Airframe illustrates the problem. Instructing a jury to give prison officials deference, if deference commonly “borders on fear,” is not a correct application of the law and would have amounted to directing a verdict in favor of the government. Even in our sterile legal environment, deference comes in varietals, such as Chevron deference, Skidmore deference, and sardonic deference. See, e.g., Massiah v. United States, 377 U.S. 201, 208 (1964) (White, J., dissenting) (“With all due deference, I am not at all convinced that the additional barriers to the pursuit of truth which the Court today erects rest on anything like the solid foundations which decisions of this gravity should require.”). And, of course, there is more than one breed of institutional deference relevant to this case. See, e.g., McCord v. Maguire, 873 F.2d 1271, 1274 (9th Cir.1989) (correctly noting that we must be “mindful of the deference due the verdict of a jury”) (citation omitted). Here, the trial judge quite rightly concluded that to give an instruction that mixed legal standards and, in effect, told the jury to layer deference upon deference, was not appropriate -- particularly when the judge had already given an entirely proper instruction on the topic. (I must, however, acknowledge that the majority is quite correct in intuiting that, unsurprisingly, there is no Klingon word for “deference.” See generally Marc Okrand, THE KLINGON DICTIONARY (Star Trek 1992)).

Thanks to commenter Dave N for the pointer.

From Lowering the Bar, via Cory Doctorow (boingboing):

1. This is an action alleging personal injuries . . . .

2. Trial is set to begin on June 15, 2009.

3. It is well known in the legal community that Michael Robb, Esquire, wears shoes with holes in the soles when he is in trial.

4. Upon reasonable belief, Plaintiff believes that Mr. Robb wears these shoes as a ruse to impress the jury and make them believe that Mr. Robb is humble and simple without sophistication. . . .

* * *

6. Part of this strategy is to present Mr. Robb and his client as modest individuals who are so frugal that Mr. Robb has to wear shoes with holes in the soles. Mr. Robb is known to stand at sidebar with one foot crossed casually beside the other so that the holes in his shoes are readily apparent to the jury . . . .

7. Then, during argument and throughout the case Mr. Robb throws out statements like "I'm just a simple lawyer" with the obvious suggestion that Plaintiff's counsel and the Plaintiff are not as sincere and down to earth as Mr. Robb.

8. Mr. Robb should be required to wear shoes without holes in the soles at trial to avoid the unfair prejudice suggested by this conduct.

See also this Palm Beach Post article.

UPDATE: Thanks to commenter Ming etc. for the pointer to this followup story:

A lengthy auto negligence case ended in a mistrial this week after jurors saw and discussed a Sunday Palm Beach Post column about two lawyers in the case.

Jurors had heard nine days of testimony and were about to hear closing arguments Monday when a juror showed other panel members Frank Cerabino's column headlined "Does lawyer who bares sole have ace in the hole?" Palm Beach County Circuit Judge Donald Hafele had earlier instructed jurors not to read or consider any information about the case outside court and not to discuss the case at all before they began deliberations....

Hafele, however, did not tell the jurors of the mistrial and allowed them to deliberate and reach an "advisory verdict." In that verdict, which will not apply, jurors found Bone's client should receive the entire $2.2 million in damages he had sought....

The case will likely have to be tried again, [Bone] said, and that will again cost more than $50,000 in expenses....

A system for allowing a shoe wearer to lean forwardly beyond his center of gravity by virtue of wearing a specially designed pair of shoes which will engage with a hitch member movably projectable through a stage surface. The shoes have a specially designed heel slot which can be detachably...
Inventors: Michael J. Jackson, Michael L. Bush, Dennis Tompkins
Assignees: Triumph International, Inc.
Primary Examiner: M. Denise Patterson

Thanks to John Shafer (ZiefBrief); ZiefBrief is the blog of USF's Dorraine Zief Law Library. The post reports, "To check out the invention in action you will need to track down a copy of Michael's video Smooth Criminal."

So says the U.S. Court of Appeals for the D.C. Circuit, reversing a district court decision that denied a preliminary injunction against the plan. Orin blogged about this last year, and largely anticipated the D.C. Circuit's conclusion. As my very brief post on this last year suggests, I think the D.C. Circuit got it quite right.

Thanks for How Appealing for the pointer.

The Westlaw TRIALORDERS-ALL database, which contains "selected civil trial court orders from state trial courts state trial court opinions." Most of these are, to my knowledge, not findable in the ALLSTATES database.

TRIALORDERS-ALL has been around for at least a couple of years, but I hadn't heard of it, so I assume that many of our readers wouldn't have heard about it, either. Potentially very useful if you're researching the kinds of issues that only rarely make their way to appellate courts, or if you want to figure out more details about what happened at trial in a particular case that did go up on appeal.

Another interesting database: STATE-FILING-ALL, which contains various filings in state trial courts.

The opinion in Novelty, Inc. v. DEA is dated June 22, but it seems to have been released just a couple of days ago. There's a particularly interesting dissent by Judge Janice Rogers Brown, which begins:

Tellingly called poor man’s crack (especially telling, as crack is already poor man’s cocaine), methamphetamine -- meth -- is a national scourge....

But we don’t toss the law aside in our zeal to eradicate even an obvious menace. The Deputy Administrator (DA) here has done just that,[fn1] in the process crippling a successful enterprise and costing many employees their jobs. In rejecting the ALJ’s recommendation that Novelty be allowed to retain its registration, the DA transforms a trivial violation of Novelty’s own rules into an imminent danger to the public health and shifts the burden to Novelty to explain why some of the thousands of convenience stores it services are busier than others. Subject to this perverse alchemy, ordinary business practices somehow provide proof of rampant lawlessness. Thus, the DA (1) misreads a statute so any place used for distribution is a “principal place of business,” even a padlocked storage shed; (2) uses the average sales of every convenience store serviced by Novelty as a proxy for legitimate demand at each location without regard to any individual characteristics; and (3) finds Novelty’s efforts to stay in business after its registration was suspended to be proof of villainy. Because “[t]he war on drugs is not an excuse to violate the norms of fair play and evenhandedness,” United States v. Cuellar, 478 F.3d 282, 307 (5th Cir. 2007) (en banc) (Smith, J., dissenting), rev’d 128 S. Ct. 1994 (2008), I respectfully dissent....

[Footnote 1:] As the Administrative Law Judge (ALJ) perceptively observed, no party “dispute[s] that illegal methamphetamine is a major drug problem in the United States,” but the agency “seems to be trying to remedy this problem by restricting or eliminating the availability of such over-the-counter products by removing the distributors of [these] products to convenience stores from the market place” altogether, despite lacking sufficient record evidence. In re Novelty Distrib., No. 08-33, slip op. at 93 (May 21, 2008) (Recommended Ruling of the Administrative Law Judge) (“ALJ Ruling”).

An interesting issue that the court didn't squarely deal with (Judge Henderson rejects it out of hand, but Judge Tatel simply concludes that it's irrelevant to the license revocation dispute, and Judge Brown doesn't address it) is whether the DEA investigators violated the First Amendment by restraining "Novelty’s video and audio recording of DEA investigators while they conducted their investigation."

I didn't see the decision granting a preliminary injunction to Salinger until this week, so I thought I'd blog a link. A very interesting case, and I think the opinion helps show the problems caused by the current fair use framework (though I'm not sure I know of a better one), which requires judges to become literary critics.

That's from a Delaware Family Court order that came out in 2002, JJ.W. B. v. K.A. B., 2002 WL 31454072 (Del. Fam. Ct.), but that I just came across. If the father used such words in violation of the court order, he would be subject to criminal prosecution for contempt (though practically speaking it seems likelier that the court would further reduce his visitation time with the children).

For more on this broad issue, check out Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006). If this order is constitutional, what other orders would be permitted? For instance, say that the father was expressing racist views, or harshly anti-government views. Could a court also bar the expression of such views within the children's presence? (In particular, the father in this case apparently often said "niggers need to burn in hell," and the child apparently "on one occasion ... made the statement to an African American child in the neighborhood." What if the father had said "blacks are intellectually inferior to whites," or "whites are a bunch of racists that are trying to keep us blacks down," and the child repeated this? Or what if the father taught the child this, but successfully taught the child not to repeat it to others?)

Also, these children were nearly 6 and 4½. If you think that's relevant, at what age would a parent regain his constitutional right to express various views — even views that we may think children shouldn't be taught — around his children?

As you might gather, from this post and from the article, these sorts of speech restrictions strike me as extremely troubling. And though I agree that it is indeed against a child's best interests to hear certain kinds of statements, and to learn evil ideologies from his parents, allowing courts to restrict parental speech strikes me as quite dangerous. Nor is this danger hypothetical; for examples of courts holding against parents' based on their atheism, advocacy of homosexual rights, and a variety of other ideologies, see the Introduction and Appendix to my article. I argue in the article that such diminution of parental rights based on parents' speech is generally unconstitutional. But this should be even clearer as to a court order banning certain speech, as in this case.

from Reason.TV. Pretty funny -- and, hey, the Third Amendment plays an important role, which is always a treat.

The Richmond Times-Dispatch reports:

The Virginia Citizens Defense League ... says officials at the Richmond Coliseum recently attempted to stop members from handing out blaze-orange "Guns Save Lives" stickers before an appearance by radio and television talk-show host Glenn Beck....

Van Cleave said the confrontation occurred June 6 as guests were arriving to see Beck, a defender of guns-rights and other personal liberties. Group members were handing out stickers when Coliseum officials told them to stop and advised that stickers were banned from the city-owned venue, he said.

"Our people stood their ground, [saying] this is public, this is freedom of speech," Van Cleave said.

Then, Coliseum officials turned their attention to people who were wearing the stickers as they entered the building. "They had to throw the stickers away," he said. "They couldn't hide it."

Van Cleave said most people followed the instructions. He said the incident was particularly disturbing because other stickers were being worn into the show without any apparent objection....

Rebecca K. Glenberg, legal director for the American Civil Liberties Union of Virginia, said members of Van Cleave's group were clearly within their rights if they were handing out stickers on public property. She said it's less clear whether Coliseum officials could ban stickers but added that any restriction would have to be enforced evenly and be reasonable in a way that's unrelated to content....

I assume from the story that the Richmond Coliseum is government-owned, and if that's so then it's hard to see how it could permissibly ban the wearing of stickers (as it does; the rule seems to have been added at some point in 2009, and Van Cleave says it was "added after the Beck show"). Even distribution of the stickers, like the distribution of leaflets, might well be constitutionally protected even in a nonpublic forum such as a sports arena. But the case for First Amendment protection for the wearing of stickers strikes me as even stronger, even if the no-stickers policy is being enforced evenhandedly. And if it is indeed enforced only against particular messages, then the violation would be especially clear.

The latest version of this forthcoming Stanford Law Review article of mine -- considerably improved, I think, over the earlier version that I excerpted on the blog -- is now available. I'd love to have more feedback on it; it's already in the editing process, but there's still plenty of time to make changes.

I've talked to some people who are considering setting up specialty journals, and given them some advice (usually cautioning them that it's very hard to get such a journal off the ground and make it successful). But I thought it would be good to get some feedback from people who have actually worked on such journals.

If you have such recent experience (say, in the last five years), could you please post something that includes the following:

1. A rough sense of your journal's subject matter and the ranking of your law school. If you want to keep your journal's name out of it, a rough ranking (e.g. "the school is in the #11-20 range in the U.S. News list") and the subject matter would be just fine.

2. Your sense of the quality of the articles that you managed to get.

3. Some things your journal has done that improve the quality of the articles that you get (e.g., running symposia, if you did that and you thought that was helpful, having a subject matter that is for some reason unreasonably looked down on by higher-ranked journals, and so on).

4. Your sense of the value of the experience to you, as educationally, as a credential, and as a fun project, whether or not you thought that the journal got to publish very good articles.

5. Whatever other thoughts you might have on the subject.

Many thanks!

as reported by Ed Brayton in The Michigan Messenger:

Longtime Ingham County Commissioner and Michigan political consultant Mark Grebner has filed a defamation lawsuit in Ingham County Circuit Court against three men for allegedly editing false and defamatory information into his biographical entry on Wikipedia.

The three defendants are Dennis Lennox, a Central Michigan University student who received a great deal of attention over the last few years for a string of politically-charged incidents on that campus and was elected Cheboygan County drain commissioner last year; Bradley Dennis, a member of the Michigan State University College Republicans who ran an unsuccessful campaign against Grebner for the Ingham County Commission last fall; and MSU sophomore Anthony Giammarinaro.

The three are accused of editing Grebner’s Wikipedia entry to include information that Grebner, a Democrat, argues is false and libelous....

The lawsuit is not against Wikipedia itself, so there isn't any 47 U.S.C. § 230 problem. In many ways, it's a traditional libel lawsuit against the alleged authors of the libel. Still, it seems to be one of the first lawsuits filed against people who have written or edited Wikipedia entries, so I thought I'd note it. Many thanks to Jason Miller for the pointer.

The Nevada Department of Motor Vehicle refused William Junge's request for a personalized license plate that read HOE; the DMV reasoned that "HOE was slang for 'whore.'" (Junge said it was short for Tahoe, and part of his overall Tahoe theme for his car: "Although Junge would have preferred TAHOE for his plate message, he settled on HOE because his first choice was unavailable. For his plate background, Junge initially selected the Lake Tahoe panoramic setting to adorn his 1999 Chevy Tahoe.")

The Nevada Supreme Court, in DMV v. Junge, reversed the denial of the plate, but its reasoning goes beyond the surprisingly substantial but rather frivolous field of License Plate Law:

[B]y its own admission, DMV based its decision solely on the Urban Dictionary. Moreover, DMV revealed a policy of only consulting Urban Dictionary to determine if a word is inappropriate or offensive.

Urban Dictionary is predominantly an online dictionary, although a paper version based on the online content was published in 2005. See http://www.urbandictionary.com/book.php (last visited June 10, 2009). Its definitions are user contributed and are generally anonymous. There is no limit to the number of definitions that a user can contribute.

Since definitions are user contributed, they can be personal to the user and do not always reflect generally accepted definitions for words. See generally http://www.urbandictionary.com/tos.php (last visited June 10, 2009). In fact, Urban Dictionary acknowledges that "[i]ts content is frequently presented in a coarse and direct manner that some may find offensive." See http://www.urbandictionary.com/tos.php (last visited June 10, 2009). Moreover, Urban Dictionary readily admits that it "cannot control all [c]ontent posted by third parties to the [w]ebsite, and does not guarantee the accuracy, integrity or quality of such [c]ontent." Id. Furthermore, Urban Dictionary concedes that it "does not and cannot review all [c]ontent posted to or created by users accessing the [w]ebsite." Id. Thus, Urban Dictionary allows, if not encourages, users to invent new words or attribute new, not generally accepted meanings to existing words.

We acknowledge that the Iowa Supreme Court upheld the use of [Jonathon] Green's Contemporary Dictionary of Slang (1985) to review personalized license plates in McMahon v. Iowa Dept. of Transp., 522 N.W.2d 51, 55-56 (Iowa 1994). Nonetheless, we conclude that this case is distinguishable because Urban Dictionary allows for anonymous, user contributed content. Moreover, without any review of the definitions posted on Urban Dictionary, there is a substantial danger that the definitions will not be generally accepted. Therefore, the DMV's practice risks prohibiting words or phrases based on meanings that are not commonly known or recognized, even as slang terms.

An interesting — and, I think, correct — conclusion, and one that's relevant to other user-generated references such as Wikipedia. As I've noted before, for tangential and uncontroversial matters, Wikipedia may be quite good enough. Government employees' time isn't unlimited, and tracking down authoritative sources to demonstrate the colorfulness of Polish boxer Andrew Golota — to give an example from a Seventh Circuit case that cited Wikipedia to support such an assertion — is probably not the best ways to spend that time. But for something controversial and important, it seems to me that Wikipedia and other reader-generated sources that aren't edited by known and trustworthy authorities should not suffice.

Note that I'm not concerned here about outright lies and manipulations. It seems likely that people who contribute to the Urban Dictionary contribute usages that they themselves have observed. And in fact it's possible that "hoe" (and not just "ho") is seen by some or even many people as slang for "whore," unless some other meaning — say, gardening-related — is visible from context. But all the entry in the Urban Dictionary means (unless the court and I misunderstood the way the Dictionary works) is that one person has claimed that a word has a particular slang meaning, and that the site operators didn't block or remove the submission; it doesn't mean that anyone checked to see whether the definition is in fact common, rare, or even purely idiosyncratic with the submitter and his small circle of friends.

Which U.S. Presidents have -- at some point in their careers -- argued before the Supreme Court? I know of only one (thanks to Ira Matetsky), but there might have been others. Note that I'm not looking for cases in which Presidents sued or were sued, but ones that they personally argued as lawyers.

Reuters report:

Turkish television station Kanal T hopes the answer is a ratings success as it prepares to launch a gameshow where spiritual guides from the four faiths will seek to convert a group of non-believers.

The prize for converts will be a pilgrimage to a holy site of their chosen religion -- Mecca for Muslims, the Vatican for Christians, Jerusalem for Jews and Tibet for Buddhists....

A team of theologians will ensure that the atheists are truly non-believers and are not just seeking fame or a free holiday.

Thanks to Religion Clause for the pointer.

or at least very funny props. Thanks to Moe Lane for the pointer.

The Daily Camera (Boulder) reports:

The ruling from Chief Denver District Judge Larry Naves, which was released this afternoon, appears to comes in stunning contrast to a jury's verdict from a civil trial Churchill brought against the school earlier this year.

At the conclusion of the 3 1/2-week-long trial, six jurors determined that CU had unlawfully stripped Churchill of his job for expressing his political beliefs in a controversial essay he wrote about the Sept. 11, 2001 attacks on the United States.

In his ruling, however, Naves stated that it was because of the jury's verdict -- specifically its decision to award Churchill a nominal $1 in damages -- that he denied Churchill's request to regain his job.

"If I am required to enter an order that is 'consistent with the jury's findings,' I cannot order a remedy that 'disregard the jury's implicit finding' that Professor Churchill has suffered no actual damages that an award of reinstatement would prospectively remedy," Naves wrote.

The judge said putting Churchill back on campus is not appropriate because the relationship between the plaintiff and the school is "irreparably damaged" and his presence there will make it harder for CU to impose its standards of scholarly excellence in the future....

Naves also wrote that he decided against awarding Churchill any "front pay" because the former professor had not "seriously pursued" any efforts to gain comparable employment since his dismissal and had even declined to pursue a couple of job offers.

I'm not sure whether this is a legally sound result, especially as to reinstatement -- I'd love to hear from experts on the law of remedies, especially in public employment cases -- but I thought I'd pass it along.

Thanks to Pirate Ballerina for the pointer.

Ilya argues that this statement of mine "goes too far," and says that "prior to the triumph of statist judicial and economic ideology during the New Deal period, American courts at both the state and federal level provided far stronger protection for property rights than they do today." There's much in Ilya's post with which I agree; certainly, to quote his post title, "judicial protection for property rights really did decline" starting with the New Deal, and hasn't substantially rebounded.

But it still seems to me that the protection offered property rights during that era was not "very broad," though it was broader than it is now. To give some examples: The Lochner-era Court upheld zoning laws. It upheld billboard bans. It upheld alcohol bans (even before the Eighteenth Amendment) and bans on lotteries. It upheld bans on pool halls. Though it struck down maximum hours laws in Lochner, it upheld them for women, surely a restriction on liberty of contract (even setting aside the equal-treatment-for-women arguments that obviously wouldn't have been appealing then). Though it struck down price controls and other highly burdensome economic regulations in various contexts, it also upheld rent controls, usury laws, time-and-half overtime laws, and other regulations. Among other things, the notion of a police power to regulate conduct and the use of property in order to protect the public's health, morals, safety, and welfare was often read quite broadly, which kept the protection of property rights from being very broad.

As Ilya points out, some state courts at times provided more protections to property, contract, and general liberty of conduct. For instance, some state courts did strike down alcohol bans. But the dominant trend in state courts, to my knowledge, was in favor of upholding alcohol bans. And I don't think that the bulk of state courts provided "very broad" protection to property rights during that era, even if some sometimes provided somewhat more than the Supreme Court did.

Finally, I agree with Ilya that "nineteenth and early twentieth century courts generally protected property rights as much or more strongly than other constitutional rights." But this doesn't mean courts took a very broad view of property rights, since they generally didn't take a very broad view of other rights — they certainly didn't take such a broad view of free speech rights, for instance (as Ilya agrees). My point was, and is, simply that property rights protections were not "very broad" at the time — not broad enough to secure a right to burn a flag that one owns (the example that triggered the post), and generally speaking not very broad in many other ways as well.

See the California amicus brief -- signed by Attorney General Jerry Brown, who was a former Governor and is talked about as a possible future candidate for the Governorship as well -- supporting certiorari in NRA v. City of Chicago. The brief expresses support for a good deal of gun regulation, but says:

The petitions in these cases should be granted to provide needed guidance on the scope of the States’ ability to reasonably regulate firearms while extending to the states Heller’s core Second-Amendment holding that government cannot deny citizens the right to possess handguns in their homes.

And in explaining the state's interest as amicus, at the very start of the brief, it says:

California has a strong interest in protecting the constitutional rights of its citizens. But unlike many states, California has no state constitutional counterpart to the Second Amendment. Unless the protections of the Second Amendment extend to citizens living in the States as well as to those living in federal enclaves, California citizens could be deprived of the constitutional right to possess handguns in their homes as affirmed in District of Columbia v. Heller, 128 S. Ct. 2783 (2008).

Thirty-three other states also filed an amicus brief supporting incorporation, though they weren't the surprise that California's brief was -- 31 of them filed an amicus brief in Heller that also endorsed incorporation (footnote 6). The two new additions are Maine and North Carolina. One of the states that joined both of the multistate briefs, Minnesota, is one of the six states that doesn't have a right to bear arms provision in the state constitution; California is another.

David Henderson (EconLog) writes:

Law professor Eugene Volokh has a recent piece in the Wall Street Journal defending the right to burn the American flag as an exercise of free speech. It's good reasoning, and there's nothing in it that I disagree with. But he omits a much better argument based on property rights. If you burn my flag without my consent, I don't care how much you're exercising your right to free expression. Free expression does not guarantee you the right to other people's property any more than it guarantees you a working larynx. But if you burn your flag, you're simply exercising your right to use your property as you wish. It's a sign of how far the courts have moved away from defending property rights that Eugene Volokh, a pro-freedom, pre-property rights lawyer, does not make the property rights case.

I agree with Prof. Henderson that people should be free to use their property so long as they don't harm others in certain fairly well-defined ways; and I agree that burning a flag does not cause any such harm. I'm not certain that the Constitution authorizes courts to enforce this rule through provisions outside the First Amendment — but that's a story for another day and for another author. But I do want to speak briefly about the "how far the courts have moved away from defending property" line, because I think it exemplifies a common claim about how once upon a time we had broad — and judicially enforced — property rights and today we don't.

The fact is that throughout American history, courts have upheld a vast range of restrictions on private property, including many restrictions that libertarians would find reprehensible. And that is true even during the heyday of constitutional economic rights protection during the Lochner era.

In fact, even when courts were "defending property" around the time of Lochner, the Supreme Court expressly rejected the property rights argument as to use of the flag. The case was Halter v. Nebraska (1907), decided two years after Lochner. Halter upheld a law that outlawed the selling of "any article of merchandise upon which shall have been printed or placed, for purposes of advertisement, a representation of the flag of the United States." This was, of course, a ban on advertising and sales rather than on the use of the flag as a political symbol, which might be relevant to a free speech claim. But no free speech claim reached the Supreme Court; rather, the Court dealt with a claim about the rights to property and general liberty of conduct — a claim that would equally apply to commercial use of the flag as to political burning of the flag.

And the Court rejected the argument, by an 8-1 vote (the only dissenter was Justice Peckham, who wrote the Lochner majority opinion). Here's an excerpt (some paragraph breaks added):

[W]e cannot hold that any privilege of American citizenship or that any right of personal liberty is violated by a state enactment forbidding the flag to be used as an advertisement on a bottle of beer. It is familiar law that even the privileges of citizenship and the rights inhering in personal liberty are subject, in their enjoyment, to such reasonable restraints as may be required for the general good.

Nor can we hold that anyone has a right of property which is violated by such an enactment as the one in question. If it be said that there is a right of property in the tangible thing upon which a representation of the flag has been placed, the answer is that such representation — which, in itself, cannot belong, as property, to an individual — has been placed on such thing in violation of law, and subject to the power of government to prohibit its use for purposes of advertisement.

Looking, then, at the provision relating to the placing of representations of the flag upon articles of merchandise for purposes of advertising, we are of opinion that those who enacted the statute knew, what is known of all, that to every true American the flag is the symbol of the nation's power, — the emblem of freedom in its truest, best sense. It is not extravagant to say that to all lovers of the country it signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary power; and absolute safety for free institutions against foreign aggression.

As the statute in question evidently had its origin in a purpose to cultivate a feeling of patriotism among the people of Nebraska, we are unwilling to adjudge that in legislation for that purpose the state erred in duty or has infringed the constitutional right of anyone. On the contrary, it may reasonably be affirmed that a duty rests upon each state in every legal way to encourage its people to love the Union with which the state is indissolubly connected.

The Court did point to two state supreme court cases that had indeed held similar statutes at least partly unconstitutional. But even those cases were limited in their reasoning. People ex rel. McPike v. Van De Carr, 178 N.Y. 425, held only that the ban was unconstitutional as to existing material depicting the flag, and would be constitutional in banning production of new such material. (In the flagburning context, this would mean that people would have the right to burn flags made before the statute limited the property rights in flags, but the government could prospectively announce that any flags made in the future could not be burned.) And even Ruhstrat v. People, 185 Ill. 133, which had the more broadly liberty-protecting reasoning of the two cases, suggested that the result might be different if the federal government — to which the care of national symbols, in the Illinois Supreme Court's view, was exclusively entrusted — asserted its interests in preventing misuse of the flag.

My point here is simply that there was no Golden Age of constitutional property rights in which the Supreme Court adopted anything close to libertarianism as a constitutional rule. Past legal regimes may have been more property-protective (though less protective of other aspects of liberty, such as free speech, sexual autonomy, and the like). They included, for instance, moderately strong enforcement of the Contracts Clause, and some protection for liberty of contract and the liberty to enter one's chosen profession. But there was always a very great deal of room for the government to restrict people's behavior, including in ways that modern libertarians would roundly condemn. That's true as to the example in the EconLog post — use of the flag — but it's also true of a wide range of other unlibertarian restrictions, which were upheld under "police power" principles during the Lochner era.

So it's not "a sign of how far the courts have moved away from defending property rights that Eugene Volokh, a pro-freedom, pre-property rights lawyer, does not make the property rights case." It's a sign that the American judiciary has never taken a very broad view of property rights, and in particular has never taken a view broad enough to protect alleged misuse of the flag. Say what you will about what you think courts should do in the future; but acknowledge that they were never terribly protective of property and of general liberty of conduct even when such protections were at their maximum.

Thanks to Wesley Gorman for the pointer.

06 Jul, Mon, 18:13:02 Google: Can i get arrested for sending nude pictures and im 15

Yes, you can; perhaps you might get off the hook on some legal theory (for instance, if the nudity isn't seen as "lewd"), but this is one thing that you don't want to be even potentially on the hook for. And even if you don't get arrested, you might come to regret -- very soon, or perhaps a few years later -- having such pictures available to anyone. My advice: Keep your nudity unrecorded.

One of the headings on End22.com, a site devoting to "repeal[ing] the 22nd Amendment" (the one that limits Presidents to two terms). Their logo, judging by the site, seems to be a photo of President Obama followed by a photo of FDR.

I have no informed opinion on the subject of term limits for Presidents, and can see good arguments in either direction. Perhaps the voters should be entitled to choose Obama for a third time in 2016 (if of course they choose him a second time in 2012). Or perhaps the political power of an incumbent President can be made so great, especially if the incumbent knows that he may legally be reelected indefinitely, that the people will in reality have more choice if term limits are imposed.

But I am pretty sure that it's a bit early to get the public excited about "making Obama's third term possible," though maybe that's the slogan that's needed to get donations from the base. And more broadly, it seems to me that this is the sort of amendment that -- like the Twenty-Second Amendment itself -- should be drafted not to apply to the person who is in office when the amendment is proposed. Both as a matter of policy and politics, any such change should be focused on the principle, and not on allowing the reelection of any particular person.

If you're a young law professor with Federalist Society sympathies, you should definitely apply; the fellowship will fund a semester-long research leave, though you won't be expected to move anywhere physically during the leave. "Applicants should be tenure-track faculty members at a law school in the second to fifth years of their tenure-track teaching careers."

Also, don't feel dispirited if you aren't at a top school. "Preference will be given to applications from candidates who are not currently at top law schools as top schools are likely to have their own research leave programs for junior faculty." More details at the link.